A new legal block on the disclosure of information about NHS safety investigations will fuel public suspicion of cover-ups and protect poor quality inquiries from scrutiny, says the Campaign for Freedom of Information.
The Department of Health has proposed new arrangements for investigating serious hospital safety incidents. The aim is to encourage staff to speak frankly to investigators about mistakes they may have made without fear of being victimised. As a result, only the investigation report could be published. A new legal prohibition on disclosure would prevent the actual evidence obtained by investigators from being released under the Freedom of Information (FOI) Act. A hospital would not be able to release it voluntarily even if it wanted to and Parliament would not be able to obtain it either.
The Campaign has published an updated version of its response to the Commission on Freedom of Information, which it has also sent to the Commission. Its original submission contained a survey of Tribunal decisions which at that time was incomplete. The updated version contains the complete survey.
The Campaign has responded to a Ministry of Justice consultation proposing the introduction of fees for appeals against decisions of the Information Commissioner to the First-tier Tribunal.
We do not support the proposal. We think the proposed fees, of £100 for a case determined on the papers and £600 for an appeal involving an oral hearing, will deter many requesters from pursuing potentially successful appeals under the Freedom of Information Act or Environmental Information Regulations. It will be the public, and in particular, the public interest in the accountability of public authorities, that will be damaged.
The Ministry of Justice is consulting on proposals that fees should be introduced for appeals to the Tribunal against Information Commissioner FOI decisions. The proposals would have serious implications for individual FOI requesters and the general public. However, figuring out precisely where these proposals can be found is a little tricky.
The Campaign has commented on proposals for a draft transparency clause produced by the Crown Commercial Service, a Cabinet Office agency. The clause is intended to be included in an updated version of the Model Services Contract which is designed for use by government departments when procuring services. The Government is committed in the Open Government Partnership National Action Plan 2013-2015 (see commitment 12) to introduce such standard transparency clauses into government contracts and to draw them up in consultation with civil society organisations and business.
The Campaign has responded to a consultation on behalf of the Senior President of Tribunals on the proposal to allow some Freedom of Information Act appeals against decisions of the Information Commissioner to be dealt with by a single judge sitting alone rather than, as at present, by a judge and two lay members.
The Campaign has responded to a consultation reviewing the statutory bar in section 24 of the Animals (Scientific Procedures) Act 1986 which prohibits the disclosure of information supplied to the Home Office in applications to use animals in scientific research. The Campaign welcomes the proposed removal of the bar. But it opposes plans to replace it by a narrower prohibition on the disclosure of information about researchers, research locations and intellectual property. It says the FOI exemptions adequately protect such information already. An absolute bar would prevent disclosure even where it would not be harmful or would be in the public interest. However, the Campaign has said that it does not object to a proposed a new offence for malicious disclosures made with the intention of causing harm or for personal gain.
The Campaign has responded to the Cabinet Office’s consultation on the draft code of practice on datasets to be issued under section 45 of the Freedom of Information Act.
The Campaign has welcomed the Justice Committee’s report on post-legislative scrutiny of the FOI Act, which rejects charging for FOI requests or new restrictions on access to policy discussions in Whitehall. The Campaign made two written submissions to the Committee and gave oral evidence at the Committee’s first hearing on 21 February 2012. You can watch a recording of the session or read an uncorrected transcript of it.
Our initial submission described some areas where the Freedom of Information Act and Environmental Information Regulations are not working as well as they should and suggested a number of improvements such as the introduction of statutory time limits for public interest extensions and internal reviews and the lifting of some absolute exemptions. It also addressed the contracting out of public authority functions to bodies which are not subject to the Act. Recent measures to encourage this process are likely to substantially undermine the public’s rights to information. Finally, it responded to suggestions that changes to the right of access may be introduced to protect cabinet papers, introduce fees for making requests or to make it easier for public authorities to refuse requests on costs grounds. The Campaign made a supplementary submission to the Committee addressing some of the points about the Act’s exemption for policy advice made by Lord O’Donnell and Jack Straw in their evidence to the Committee. This supplementary submission also provided examples of excessive or wasteful spending revealed by FOI, which suggest the Act is likely to play an important role in exposing and deterring excessive spending, which is generally not taken into account when assessing the ‘costs’ of FOI.
Response to the Cabinet Office’s ‘Making Open Data Real’ consultation. The response emphasises the extent to which the government’s vision of improvements to accountability, service quality, efficiency, choice and citizen empowerment depend on the FOI Act, since (a) although data may highlight discrepancies in performance, the broader right of access provided by the FOI Act is needed to understand what is behind them and (b) the ‘right to data’ proposals are being implemented for public authorities by amendments to the FOI Act itself. It also points out that both the FOI Act and open data proposals will be undermined by the contracting out provisions of the Health and Social Care Bill and the Localism Bill. Finally, it argues that the abuse of copyright restrictions, which the government’s amendments address, is not restricted to datasets but applies to ordinary disclosures under the FOI Act.