World Bank Institute News

On first inspection, it would appear that the right of access to information and the right to protection of personal privacy are irreconcilable. However the reality is more complex. For the most part, these two rights complement each other in holding governments accountable to individuals. But there is a potential conflict between these rights when there is a demand for access to personal information held by government bodies.

Targeted for practitioners working in governance and transparency issues and as part of its Governance Working Paper series, the World Bank Institute has recently published a sixth working paper on ATI addressing some of these issues.

“The Right to Information and Privacy: Balancing rights and managing conflicts” by David Banisar, Senior Legal Counsel for Article XIX. Available here.

Focusing on the cases of Ireland, Mexico, Slovenia and the UK, while also looking at other experiences, this paper examines legislative and structural means to better define and balance the rights to privacy and to information.

The BBC’s Daily Politics programme has interviewed Lord Clark of Windermere, author of the freedom of information white paper ‘Your Right to Know’, as part of a series of interviews, entitled Change Makers, with people who have radically changed Britain.

Lord Clark spoke to Susana Mendonça about how the act was brought in and claimed he was sorry about its impact on the reputation of parliament, but that it was the system and not the act that was to blame.

Lord Clark says the message given by the then Prime Minister Tony Blair in 1997 was “get this Freedom of Information [Act] up and running…we need it, we want it, I want it…”and he was surprised when Mr Blair said introducing the Act has been a mistake in his memoirs.

HT to the BBC’s Martin Rosenbaum for this.

On 10 March 2011, an opinion was delivered by Advocate General Kokott in OFCOM v Information Commissioner, which the Supreme Court referred to the Court of Justice for a preliminary ruling on the issue of how the public interest balancing test in the Environmental Information Regulations should be approached when two or more exceptions to disclosure are engaged:

The courts of the United Kingdom disagree as to how this balancing exercise is to be undertaken where several interests deserving of protection are simultaneously undermined. Is each exception to be addressed separately, by considering whether the interest served by it or the public interest served by disclosure prevails (the view taken by the courts at the first two instances and by a minority of the judges of the Supreme Court submitting the reference for a preliminary ruling)? Or can the interests served by different exceptions be combined and then together weighed against the public interest served by disclosure (view taken at third instance and by the majority of the Supreme Court)?

The Advocate General backed cumulation and the view of the majority of the Supreme Court:

Contrary to the view expressed by Sweden and the Information Commissioner, the use of the term ‘interest’ in the singular does not preclude a cumulation of several interests…

Nor does emphasis on the particular case in which the balancing exercise is to be carried out proscribe cumulation. As argued by the United Kingdom, the more obvious interpretation is that the term ‘in the particular case’ means that it relates to the specific decision that is pending on the disclosure of information. 

Furthermore, the breakdown of interests meriting protection into different exceptions does not preclude their cumulation. As convincingly argued by the United Kingdom, these exceptions are not always clearly distinguishable from each other. Indeed, the interests meriting protection sometimes clearly overlap.
…
Consequently, the answer to the reference for a preliminary ruling should be that where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2) of the Environmental Information Directive, but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.

The Court will now deliberate and its judgment will be pronounced shortly. Advocates generals opinions are not binding on the Court but are followed in the majority of cases.

New Rarer Cancers Foundation report finds that hundreds of Scottish cancer patients have been refused treatment – 09/03/11 Rarer Cancers Foundation
The report found that 360 patients have been denied access to life-extending cancer treatment in Scotland over the past three years and that nearly 2,500 patients have been forced to rely on exceptional case committees in order to secure access to the treatment recommended by their doctors. Figures were obtained under the Freedom of Information Act from Scotland’s 14 NHS boards. See the report: The Scottish Exception? An audit of the progress made in improving access to treatment for people with rarer cancers

Councils could face legal challenges over job cuts says UNISON – UNISON 08/03/11
On the 100th anniversary of International Women’s Day, UNISON is warning that councils could face legal challenges over job cuts on equality grounds. An FOI request by the union reveals that 72% of councils did not complete equality impact assessments (EIA) over their initial redundancy proposals and 78% of councils did not complete EIAs on their final job loss plans.

Police forces cut thousands of hours in overtime – The Times 08/03/11 (subscription only)
Police forces across the country are cutting tens of thousands of hours in overtime, an investigation by The Times has found, as they battle to reduce their spending as budget cuts start to bite. The figures, obtained from a Freedom of Information request, come as the Government considers plans to cut millions from the police pay bill.

West Midlands planning money remains ‘unspent’ – BBC 07/02/11
Almost £70m of planning “gain” money remains unspent by councils in the West Midlands. Freedom of Information requests to all councils across the region revealed some of them had not spent money given to them by developers.

Hospitals’ cockroach kitchens – The Sunday Times 06/03/11 (subscription only)
Three out of four hospital kitchens in Britain have breached basic food hygiene standards, a damning investigation by The Sunday Times can reveal. Fewer than 200 hospital kitchens were given a clean bill of health in the inspection reports obtained under freedom of information rules.

Private Security Firms paid £29m last year for contracts in Afghanistan – The Guardian 06/03/11
New figures, released under the Freedom of Information Act, confirm that a growing reliance on private firms is underpinning Britain’s war effort.

Email Trail as England 2018 bid eyed royal ties with Qatar – BBC 05/03/11
The confidential emails on England’s World Cup bid obtained under freedom of information requests by the BBC contain fascinating insights into the sorts of deals and discussions that were going on in the run-up to last year’s vote in Zurich. See the emails in full here.

Postcode lottery for care fees of neediest – Which? 05/03/11
Those with the highest, most complex health needs are supposed to have their full care costs funded by the NHS, whatever their financial situation. But Which? research has discovered there are huge variations in care funding across the country. Using Freedom of Information requests and analysing government data, we found that 8 times as many people per 50,000 in Plymouth receive funding than in Essex.

Ofsted forced to reveal survey findings – TES 04/03/11
Ofsted has released the results of staff and student surveys carried out during an inspection for the first time. Despite publishing the data for one school following a teacher’s request under the Freedom of Information Act, the watchdog says that it has no plans to make the survey results available routinely.

GPs are accused of using profits from commissioning to meet practice expenses – Health Service Journal (subscription only) reported in the BMJ 04/03/11
GPs have been accused of lining their own pockets by using the savings made from practice based commissioning to provide basic practice equipment. Freedom of Information requests revealed examples amounting to several millions of pounds among 50 primary care trusts, covering 650 general practices.

Centre for Sustainable Energy publishes full UK public building energy data – Centre for Sustainable Energy 02/03/11
CSE has published the full Display Energy Certificate (DEC) Register for all UK public buildings, making it publicly available in one place for the first time. The dataset includes the address, floorspace, heat and power consumption, carbon emissions, and energy efficiency rating of 40,000 sites. We obtained the data from the Department for Communities and Local Government (CLG) under the Environmental Information Regulations.

Savings pressures mount on staff terms and conditions – Health Service Journal (subscription only) reported on Nursing Times 02/03/11
Documents, obtained under the Freedom of Information Act, show these cuts include £1.5m potential savings from freezing pay increments and £1m from decreasing annual leave by two-five days. Around £400,000 could also be saved from treating a bank holiday as a working day and a further £600,000 from reducing sickness entitlement.

The top 100 government suppliers – The Guardian 02/03/11
SA Mathieson used Freedom of Information requests as a way to gather information on government spending. All the 15 departments and organisations that were approached provided a list of their 100 largest suppliers.

PCTs slash GP out-of-hours spending – GP Online 03/03/11
A quarter of PCTs have cut spending on GP out-of-hours services since last year, a GP investigation reveals. Data obtained under the Freedom of Information Act show 20 PCTs forecast savings of around £4 million in total on out-of-hours in 2010/11 compared with 2009/10 spending.

Leicester Mercury wins battle to learn facts about ex-MPs’ cash payouts – Leicester Mercury 26/02/11
The Leicester Mercury has won a victory that will force the House of Commons to reveal whether former MPs took “golden goodbye” payments worth up to £60,000. Using the Freedom of Information Act, the Commons authorities were asked to provide a list of MPs who had drawn the grant, paid out of public funds.

Volunteers uncover £50 million in corporate funds to UK universities – Corporate Watch 24/02/11
People & Planet uncover £50 million from oil, arms and big pharma being channelled into UK universities. The Reclaim Research group conducted interviews and sent Freedom of Information requests to 17 universities and are starting to reveal the hidden connections between research and corporations at universities.

Britain ‘gave Gadaffi’ police firearms training – The Times (subscription only) 23/02/11
A three-week “command and control” course for senior officers took place in Tripoli in January 2009, which included “use of force and human rights, introduction to the conflict management model and command of spontaneous firearms operations”, according to documents released under the Freedom of Information Act.

The Scottish Information Commissioner has published his 2010 Annual Report. Launching the report, Kevin Dunion, the Scottish Information Commissioner said:

It is clear from the data published today that the public are increasingly making use of their rights to information. This is sure to continue in the current economic climate, as more and more people want to understand the rationale behind spending cuts.

When public authorities receive information requests they are often faced with a choice between disclosing the information, or refusing to release it. It may well be that the refusal of the request is appropriate, for example where it involves personal data. However, as my decisions over the past year have shown, there are still many cases where authorities have not been justified in withholding information, even where the information might expose them to criticism or adverse publicity.

The good news, however, is that our survey results suggest that public authorities are becoming more comfortable with disclosing information, rather than withholding it, and these conclusions appear to be supported by the levelling-off of appeals coming to my Office. This is a positive sign, and evidence that freedom of information is now beginning to “bed in” in Scotland, with the FOI principles of openness and transparency increasingly being accepted by authorities.

The bad news, though, is a widespread concern amongst authorities that a rise in often complex requests comes at a time when there is a reduction in the resources available to deal with them. Indeed, 41% of respondents to our survey identified this as the biggest FOI challenge they faced.

The Commissioner continued:

Scotland has led the way in the UK since the introduction of FOI six years ago, and the Scottish Government has demonstrated its commitment to FOI by removing exemptions that prevent the release of sensitive information after 15 years. However, the decision not to bring additional bodies, like Kilmarnock Prison or Glasgow Housing Association, under the scope of FOI in this parliament was a significant setback. Increasingly, public services are delivered by arms length organisations and private contractors, it is therefore extremely important that FOI rights continue to follow the public pound.

FOI in Scotland is at a crossroads, and now is not the time to diminish people’s rights. The public must be able to access information on how the decisions that affect public services and public spending are taken.

The Annual Report reveals that:

• 408 FOI appeals were received by the Commissioner in 2010, following the refusal of information requests by Scottish public authorities;
• The Commissioner closed 456 cases;
• 249 formal decisions were issued, 50% more than in 2009;
• The Commissioner issued his 1000th decision since the introduction of FOI in 2005. 1,188 decisions had been issued by the end of the year;
• 74% of the applications were received by the Commissioner in 2010 came from members of the public;
• The number of cases closed without investigation continued to decline over the year, with a drop of 16% on 2009 figures. This suggests that there is an increasing awareness amongst requesters of the FOI appeal process;
• The Commissioner found that a public authority had breached the law in some way in 65% of the decisions issued;
• The average age of cases being dealt with by the Commissioner continued to decline during 2010, meaning that individual applications are being resolved more quickly. The average age of cases closed during 2010 was 5.2 months.

The Annual Report can be downloaded as a pdf here.
An enhanced version of the Report including video footage, interactive tables, infographic and supporting statistics, can be viewed online here.

Freedom of Information was referred to several times during the second reading debate on the Protection of Freedoms Bill in the House of Commons on 1 March 2011. The Bill amends the Freedom of Information Act to require the publication of datasets held by public authorities in a re-usable format. It also amends the definition of publicly owned companies so that it includes companies owned by two or more public authorities. And it provision about freedom of information and the Information Commissioner;

The Secretary of State for the Home Department (Mrs Theresa May:…Greater transparency is at the heart of our commitment to open up government to greater scrutiny and to allow public authorities to be held to account, so the Bill makes a number of changes to the Freedom of Information Act to extend its provisions. We will consult the House authorities on these provisions before the Committee stage to ensure that parliamentary copyright is properly safeguarded. The Bill also makes changes to the Freedom of Information Act and to the Data Protection Act to enhance the independence of the Information Commissioner.

Yvette Cooper (Normanton, Pontefract and Castleford) (Lab): …We support sensible extensions to the Freedom of Information Act 2000. As the party that introduced that Act, we believe that it is a vital way of ensuring proper transparency and accountability. In passing, I would appreciate it if the Home Secretary would have a word with the Chancellor and ask him to stop blocking my freedom of information requests on the impact of his changes on women.

Mr Straw:..The Labour Government introduced the Human Rights Act 1998, the title of which was never disputed, because it was indeed about human rights-we could have called it the “Human Rights and Freedom Act”. We also introduced the Freedom of Information Act. I am proud that I was the Home Secretary who produced those measures and a number of others. The previous Conservative Government opposed the freedom of information legislation at every stage for 18 years. They wanted only a non-statutory, unenforceable code. That is all they would have introduced.

David T. C. Davies: I wonder what the right hon. Gentleman made of the claim in Tony Blair’s book that one of the two worst things he did was to pass the Freedom of Information Act-the other one being to pass the Hunting Act 2004.

Mr Straw: I will pass lightly over the Hunting Act, if I may. I do not happen to agree with Tony Blair on that point. Although freedom of information requests can be irritating, especially if one is in government, I did not change how I operated as a Minister. It did not mean that I ceased to record my decisions or comments on submissions. As was brought out by the Dacre report, whichever party is in power there is a case for the proper protection of Cabinet discussions and collective responsibility-that issue might need to be reconsidered, because it has not worked out as intended-but I am in no doubt that overall the Freedom of Information Act has been a force for good.

Tom Brake:…The freedom of information changes are very welcome, although not all aspects of the freedom of information ten-minute rule Bill that I have pressed on two separate occasions in the last three or four years will be picked up. I hope they will be, perhaps in the protection of freedoms (No. 2) Bill, when we get round to that in, I hope, the second half of this Parliament. I do not see any reason why very large private sector organisations that are, in effect, doing public sector work should not be subject to FOI in the same way as the public sector. If they are simply taking on what was previously done by the public sector, and to which FOI legislation would have applied, it would be appropriate for it to apply to private sector organisations now doing that work. I welcome the fact that we will preserve trial by jury and that we are restoring such rights.

Green Party News
26 February 2011

Caroline Lucas, Green Party leader and MP for Brighton Pavilion, called yesterday for Freedom Of Information (FOI) legislation to be extended to banks, telecoms operators and other large corporations providing key services to the public.

In her speech to the Green Party spring conference in Cardiff, Lucas said: “We depend on these corporations in just the same way as we depend on schools or hospitals to deliver our services. When they fail, we all suffer – so they must be opened up to public scrutiny. That’s why I am proposing that the current FOI act be extended to cover major corporations.”

Under the proposal, the Information Commissioner would be empowered to determine classes of information that companies would have to publish, such as risk registers, payment to sub contractors, or tax payments made overseas.

 Full press release here.

Exclusive: 50,000 job losses uncovered by False Economy – False Economy 23/02/11
False Economy can reveal that more than 50,000 NHS staff posts are set for the axe, destroying government claims that the NHS is in safe hands. Our figures have been collated for the most part from the NHS trusts themselves under the Freedom of Information Act.

Radical new gateways reject one in eight GP referrals – Pulse 23/2/11
GP practices are seeing as many as one in eight of their referrals diverted or rejected, under radical new ‘total referral management’ schemes, a Pulse investigation reveals.

Pickles Under Fire From Tory-Led Councils – Sky News 22/02/11
Conservative-led councils have warned Communities Secretary Eric Pickles that “unfair” spending cuts will have “potentially devastating” consequences. The correspondence, released to Sky News under the Freedom of Information Act, lays bare the depth of frustration felt by local authorities.

Rise in teen pregnancy feared as roles are axed – Children & Young People Now 22/02/11
Teenage pregnancy co-ordinators across the country face job losses after many councils revealed they cannot afford to fund the role. Freedom of information requests sent to all local authorities in England have revealed that 50 out of the 86 councils that currently employ teenage pregnancy co-ordinators cannot commit to funding the posts for 2011/2012.

Lives put at risk as hospitals fail to fix safety problems – The Telegraph 21/02/11
Half of the 406 NHS trusts in England are failing to comply with safety alerts, which cover everything from equipment failure to warnings on correct dosage, according to the charity Action against Medical Accidents.

Councils ‘missed’ £530m in taxes – BBC 18/02/11
Cash-strapped local authorities in England, Scotland and Wales failed to collect £530m in council tax in 2009-2010, a BBC investigation found. The figures were obtained through a Freedom of Information request.

Taxpayers paid £50m a year for non-existent operations – The Telegraph 15/02/11
Under controversial minimum payment contracts, 25 independent sector treatment centres across England were paid a set amount, regardless of how many operations they actually carried out.

The Mystery of England’s 12,000 Vanishing Pupils – TES 11/02/11
Almost 12,000 children are officially “missing” from education, a TES investigation has revealed, with many at “serious risk” of physical, sexual and mental harm.

Racism on the Rise in Scotland – STV 11/02/11
Statistics revealed in a freedom of information request to Scotland’s eight police forces showed that 6,171 incidents of racism were recorded in 2009/10 – a 20% increase in racist incidents over the past 12 months.

Danish pastries all round, advises handbook for first-time ministers – The Independent 06/02/11
Some of the most powerful politicians in the UK have been presented with an “idiots’ guide” on how to run the country. The manual is one of 23 ministerial training documents obtained under Freedom of Information legislation.

Over half of all VAT decisions issued by HMRC found incorrect on appeal – UHY Hacker Young Chartered Accountants 24/01/11
Data obtained under the Freedom of Information Act shows that over the last 18 months HMRC completed 28,912 reviews of technical decisions and VAT penalties imposed on businesses, of which 16,270 were subsequently ruled incorrect.

Communities and Local Government News
23 February 2011

Councils should open up their public meetings to local news ‘bloggers’ and routinely allow online filming of public discussions as part of increasing their transparency, Local Government Secretary Eric Pickles said today.

To ensure all parts of the modern-day media are able to scrutinise Local Government, Mr Pickles believes councils should also open up public meetings to the ‘citizen journalist’ as well as the mainstream media, especially as important budget decisions are being made.

Local Government Minister Bob Neill has written to all councils urging greater openness and calling on them to adopt a modern day approach so that credible community or ‘hyper-local’ bloggers and online broadcasters get the same routine access to council meetings as the traditional accredited media have.

The letter sent today reminds councils that local authority meetings are already open to the general public, which raises concerns about why in some cases bloggers and press have been barred.

For example Tameside Council has accredited professional journalists to report from meetings using Twitter. The decision means local bloggers, the public and even councillors are not permitted to tweet because they are not considered members of the press.

Eric Pickles said:

“Fifty years ago, Margaret Thatcher changed the law to make councils open their meetings to the press and public. This principle of openness needs to be updated for the 21st Century. More and more local news comes from bloggers or citizen journalists telling us what is happening at their local council.

“Many councils are internet-savvy and stream meetings online, but some don’t seem to have caught up with the times and are refusing to let bloggers or hyper-local news sites in. With local authorities in the process of setting next year’s budget this is more important than ever.

“Opening the door to new media costs nothing and will help improve public scrutiny. The greater powers and freedoms that we are giving local councils must be accompanied by stronger local accountability.

“We are in the digital age and this analogue interpretation of the press access rules is holding back a new wave of local scrutiny, accountability and armchair auditors.”

The letter also reassured councils that giving greater access will not contradict data protection law requirements following concerns over personal information. In the majority of cases the citizen blogging about how they see the democratic process working is unlikely to breach the data protection principles.

Chris Taggart, of www.OpenlyLocal.com (external link), which has long championed the need to open council business up to public scrutiny, added:

“In a world where hi-definition video cameras are under £100 and hyperlocal bloggers are doing some of the best council reporting in the country, it is crazy that councils are prohibiting members of the public from videoing, tweeting and live-blogging their meetings.

“Councils need to genuinely engage their communities and giving wider access to their meetings through these technologies is one way they can do this.”

Full press release here.