The Campaign for Freedom has produced a briefing for second reading of the Health Service Safety Investigations Bill in the House of Lords on 29th October 2019.
We are concerned about a prohibition on the disclosure of information contained in the Bill. Under the bill, the Health Service Safety Investigations Body (HSSIB) would investigate selected NHS patient safety accidents or incidents and publish a report on each investigation. But it would be prohibited from making public any other information held in connection with its functions, except in limited circumstances. The prohibition would remove the right of access under the Freedom of Information Act and the right of individuals to see their own personal data under data protection legislation. Moreover, disclosure of protected information, other than in limited circumstances, would be an offence.
The prohibition is said to be necessary:
‘to create a ‘safe space’ within which participants can provide information for the purposes of an investigation in confidence and therefore feel able to speak openly and candidly with the HSSIB.’
If the purpose was to provide a safe space for participants it might be thought that what would be protected would be information likely to identify such a person, whether by name or position or indirectly from the content of what was said. In fact the prohibition on disclosure is not limited in this way.
It applies to any information held ‘in connection with’ the HSSIB’s function that is not already published, whether or not it relates to an identifiable individual, whether or not it relates to an identifiable investigation and whether or not it is capable of deterring participants from speaking frankly to investigators, inhibiting investigators in reaching their conclusions or causing any other adverse effect at all.
We think it is disproportionate and – given the substantial protection for sensitive information in the Freedom of Information (FOI) Act – unnecessary.
Read the full briefing.
40 leading environmental, open government and other organisations have signed a letter, which the Campaign for Freedom of Information co-ordinated, urging the government to drop a secrecy provision from draft legislation to improve environmental protection after Brexit. The organisations say the prohibition on disclosure “is wholly at odds with the public’s right to information” under existing UK legislation.
The Campaign for Freedom of Information is looking for voluntary help with online research on FOI. We need research help to support our campaigns to:
- extend the FOI Act to contractors and housing associations and other bodies
- improve the FOI performance information published by public authorities in London
There may be other issues as well.
You would be making a significant contribution to improving the effectiveness of the FOI Act. The Campaign is a very small organisation, whose work has had a proven impact – and your help could make a real difference.
We are looking for volunteers who can help for at least a couple of days a week for a month, or longer. You would mainly be working from home with support from the Campaign’s staff, with some meetings in our office in Farringdon, London to discuss progress. We will cover your expenses.
If you would like to apply, please send your CV with a covering email describing your availability and any relevant experience to firstname.lastname@example.org.
Photo: Campaign for Freedom of Information
When: 26th November 2019 1:00-4:30 pm, 10th December 12.30-4:00 pm
Where: Free Word Centre, 60 Farringdon Road, London EC1R 3GA
PLEASE NOTE: the course on the 26th November is now full, but due to demand we are running it again on 10th December 2019.
The Information Commissioner has issued almost 13,00 decision notices under the Freedom of Information Act and Environmental Information Regulations – while the Information Rights Tribunal has published over 2,300 decisions. A significant number of appeals to the Upper Tribunal and courts have also been decided. These complex decisions are essential materials for anyone trying to understand what public authorities must do to comply with the legislation.
This course, now in its 14th year, is aimed at experienced FOI practitioners and others with a good working knowledge of the legislation. It highlights the latest developments in the way the exemptions, public interest test and the legislation’s procedural requirements are being interpreted.
Photograph: Samuel Zeller
When: Thursday 17th October 2019
Where: Free Word Centre, 60 Farringdon Road, London EC1R 3GA
Time: Registration 9:45 am, course 10 am – 4:30 pm
Do you want to learn how to use the Freedom of Information Act? Are you already using the Act, but want to know more about how key provisions are being interpreted?
Making a FOI request is straightforward but making an effective request can be more difficult. Requests that ask for too much information can be refused – and some information may be exempt. But a well thought-out request can have a powerful impact, revealing that a policy isn’t working, an authority isn’t doing its job or generating key information for your research.
The course is designed to help campaigners, researchers, journalists and others make the most of the Act and the parallel Environmental Information Regulations. It explains the legislation, shows how to draft clear and effective requests and describes how to challenge unjustified refusals. The course’s interactive sessions will encourage you to test your own FOI drafting skills. The course is aimed at both beginners and those who are already using the Act but want to do so more effectively.
Photo by Sarah Sigler on Unsplash
The Campaign is concerned the government is using the Draft Environment (Principles and Governance) Bill to undermine the right of access to environmental information.
The bill establishes the Office for Environmental Protection (OEP), part of whose functions is to enforce compliance by public authorities with environmental legislation. Unfortunately, that function would be subject to a statutory prohibition on disclosure which would, we believe, override the right of access under the Environmental Information Regulations (EIR).
Under the bill:
- the OEP would be prohibited from disclosing any information it obtained from an authority which it is investigating without the authority’s consent
- the public authority would be prohibited from disclosing information about formal action being taken against it without the OEP’s consent
- the OEP would be required to copy its correspondence with an authority to the minister but be prohibited from disclosing the minister’s reply without the minister’s consent.
What passes between the OEP and an authority under investigation is thus suppressible by whichever side is providing the information. Ministers could intervene in enforcement matters with the benefit of total secrecy. The existing right of access could not apply to any of this information.
These bars on disclosure would all be absolute and indefinite and apply regardless of the public interest in disclosure. This is a massive contrast with the existing position under the Environmental Information Regulations (EIR) which exempts information about investigations only if disclosure is likely to be harmful and subject to a duty to disclose in the public interest.
At present, the EIR right of access takes precedence over any statutory restriction on disclosure, which would make the prohibition pointless. The government must therefore intend to reverse this, so that statutory restrictions take precedence over the EIR right of access. It hasn’t acknowledged this, but that is the only explanation. This would probably allow all statutory restrictions to override the EIR right of access in future.
The normal EIR regime would be replaced by a blanket bar on disclosure of OEP enforcement action, far more restrictive even than that under the European Commission infraction process which the OEP enforcement function partly replaces.
We set this out in evidence to the Environment, Food and Rural Affairs Committee. Read the full submission here.
We welcome the introduction of a draft access to information strategy, particularly as recent ICO strategic documents such as the ‘Information Rights Strategic Plan 2017-2021’ and the ‘Regulatory Action Policy’ primarily reflect a data protection perspective even though they apply to the full range of the ICO’s functions including FOI. We are extremely pleased to see access to information now being dealt with in its own terms.
A new report by the Campaign for Freedom of Information reveals that some London councils are failing to comply with the Freedom of Information (FOI) Act’s time limits in as many as 40% of the requests they receive, causing long delays before information is released. On the other hand some are close to answering 100% of requests on time. The Information Commissioner (IC), who enforces the FOI Act, expects authorities to answer at least 90% of requests on time. The report finds that 25 out of 34 London councils surveyed fell short of this target in 2017/18. The scale of this problem had previously been obscured by the fact that many of the underperforming councils publish no statistics on their handling of requests.
A new parliamentary report has been criticised by the Campaign for Freedom of Information and News Media Association for endorsing a proposal that will prevent a new NHS patient safety body from disclosing safety information under the Freedom of Information Act.
A draft government bill to establish the Health Service Investigations Body would also prevent it from disclosing information it holds in connection with any patient safety investigation. The parliamentary committee recommends extending this restriction to any information provided in order to promote patient safety, regardless of whether it relates to an investigation.
The Information Commissioner’s Office has invited comments on a draft policy setting out its approach to taking action against those who have breached the legislation it enforces. The Campaign’s response states:
“Although the draft Regulatory Action Policy purports to address the ICO’s policy in relation to all the legislation it enforces, the focus on data protection, and nothing else, is overwhelming. The document gives the impression that all other issues, including freedom of information, have been squeezed off the ICO’s agenda altogether.