Tag Archives: foi

Whistleblowers and journalists in the digital age

Snowden

Dr Aljosha Karim Schapals, research assistant at the Information Law and Policy Centre, reports on a research workshop hosted by the University of Cardiff on Digital Citizenship and the ‘Surveillance Society’.

A workshop led by researchers at the Cardiff School of Journalism, Media and Cultural Studies (JOMEC) on 27th June in London shared the findings of an 18 month ESRC funded research project examining the relationships between the state, the media and citizens in the wake of the Snowden revelations of 2013.

It was the concluding event of a number of conferences, seminars and workshops organised by the five principal researchers: Dr Arne Hintz (Cardiff), Dr Lina Dencik (Cardiff), Prof Karin Wahl-Jorgensen (Cardiff), Prof Ian Brown (Oxford) and Dr Michael Rogers (TU Delft).

Broadly speaking, the Digital Citizenship and the ‘Surveillance Society’ (DCSS) project has investigated the nature, opportunities and challenges of digital citizenship in light of US and UK governmental surveillance as revealed by whistleblower Edward Snowden.

Touching on more general themes such as freedom of expression, data privacy and civic transparency, the project aligns with the research activities of the Information Law and Policy Centre, which include developing work on journalism and whistleblower protection, and discussions and analysis of the Investigatory Powers Bill. Continue reading

News: CMS committee approves Elizabeth Denham’s appointment as Information Commissioner

s300_denham_headOn Wednesday 27 April the government’s preferred candidate for the new Information Commissioner appeared in front of the Culture, Media and Sport select committee, whose remit now extends to this post. Video here.

The CMS committee has now published its report, announcing:

On the basis of the evidence presented, we approve Elizabeth Denham’s appointment as Information Commissioner. We wish Elizabeth Denham well in her new post and look forward to working with her in the future.

Elizabeth Denham will replace outgoing Information Commissioner Christopher Graham who has served since 2009 (a five year term extended by two years – he cannot be re-appointed under the Protection of Freedoms Act 2012). A further statement from the committee is available here, which includes a statement from committee chair Jesse Norman MP:

“The Committee noted with interest Ms Denham’s views on a range of topics, including the possible retention of emails as official records, the extension of FOI and directors’ liability for data breaches, in particular.

We also noted Ms Denham’s track record on data protection with Government in British Columbia, and her proactive approach to protection of privacy with major international technology companies.”

The committee reports:

[12] Elizabeth Denham has held senior leadership positions in the field of information rights in Canada over the last 12 years. Since 2010 she has been the Commissioner at the Office of the Information and Privacy Commissioner for British Columbia, Canada, where she is responsible for enforcing the Canadian Freedom of Information and Protection of Privacy Act (FIPPA), the Personal Information Protection Act (PIPA), and the Lobbyists Registration Act (LRA). Previously (2007–10) she was the Assistant Privacy Commissioner of Canada in Ottawa; having been a Director at the Office of the Information and Privacy Commissioner of Alberta (2003–7) …

[13] Ms Denham gave oral evidence to us on 27 April. We questioned her on the following topics:

  • A comparison of the British and Canadian FoI and data protection regimes
  • Her understanding of the EU Framework underpinning UK data protection law
  • Whether and how the powers of the UK ICO might be extended in relation to FoI
  • The application of FoI to all forms of communication, including social media, whenever any government information was under consideration
  • Whether FoI should apply to non-Government entities delivering public services
  • The application of the commercial confidentiality exemption from FoI to government contracts
  • Issues of victims’ access to information highlighted by the Hillsborough inquiry
  • The responsibility that company directors should have for cyber security
  • Tackling nuisance calls
  • The implications of amending the Regulation of Investigatory Powers Act to extend data retention
  • Press Regulation: Lessons to be learned from Operation Motorman and the Leveson inquiry
  • The ICO’s relations with Parliament
  • The management challenge of moving from a relatively small state system to a national regulator
  • Funding of the ICO
  • The challenge of relocating to the UK

Steve Goodrich: FOI is under attack when it should be strengthened

stevegoodrichIn this guest post, Transparency International UK’s Steve Goodrich considers UK citizens’ right to access information, arguing that public money should be put towards examining how the Freedom of Information regime can be improved, not weakened

The right to access information held by the state, public officers and providers of state services is an essential part of a functioning democracy. It provides citizen-led checks and balances on concentrations of power, without which corruption would be allowed to thrive; allows citizens to make informed judgements about the efficacy of governments and elected representatives; and helps hold institutions and officials to account for their actions. It is, therefore, perplexing why the UK Government – with its welcome and newfound interest in tackling corruption – appears intent on watering down the Freedom of Information Act.

In July this year, Lord Hodges announced that the UK Government was establishing an ‘independent Commission’ to review whether the Act provided ‘safe space’ for Ministers and civil servants to develop and discuss policy. This might sound very well and reasonable – why shouldn’t a law be reviewed after it’s been in operation for a decade – however, the announcement missed out some important pieces of detail.

Firstly, there has already been post-legislative scrutiny of the Act. The Justice Select Committee did a thorough job back in 2012, which involved taking 140 pieces of written evidence and oral evidence from 37 witnesses during 7 evidence sessions. After talking to a range of individuals and organisations, the Committee concluded that there are sufficient protections for deliberation within public bodies. The Information Commissioner and Information Tribunal are both mindful of the need to ensure this ‘safe space’ exists – which is already provided for in the Act – and Cabinet minutes are not routinely outed. Considering this, it’s slightly baffling why the government wants this looking at again, and so soon after the last review.

Secondly, one of the reasons cited for re-examining the Act is the Supreme Court’s recent decision in the case of the Prince Charles ‘spider memos’. After the Upper Tribunal had ordered the government to disclose these documents the Attorney General, Dominic Grieve, tried to issue the Ministerial veto – something intended for rare and limited circumstances. However, on appeal the Supreme Court ruled that the veto could not apply because it was never intended to be an executive override for a judgment of the judiciary. As the Supreme Court’s judgment notes, it is a long-standing principle of the rule of law that the executive should only be allowed to do this in very specific circumstances where the power to do so is clear and explicit. This is not the case within the FOI Act.

Essentially, the review seems to be partly inspired by sour grapes. The government lost in a disagreement with the courts and its solution is to make the case for re-writing the law so it can ignore them in the future when it suits them. The public interest is noticeably absent from its motivations.

Thirdly, the composition and conduct of the Commission has raised some eyebrows. Members include Jack Straw, who has publicly criticised the Act, and Michael Howard whose expenses for gardening services were revealed through FOI. There are no major advocates of the Act on the panel.

The Commission has also adopted some opaque practices during the initial stages of its inquiry, including providing anonymous briefings to members of the press and considering anonymising evidence. Until civil society expressed concerns about the Commission in September, it wasn’t even planning to take external evidence and had the suspiciously ambitious deadline of November 2015 to report to government. Since then, it has opened itself up to submissions and its deadline for reporting appears to have disappeared. However, the damage has already been done – Transparency International UK has no confidence in the impartiality and independence of the Commission.

The saddest thing about this whole episode is that it’s been a missed opportunity. If public money is going to be spent on reviewing the Act it should be put towards examining how it can be improved, not weakened. For example, there are growing transparency gaps in our public institutions, with the private sector providing an increasing amount of goods and services. Although there are some circumstances where these companies can be subject to information requests, these are limited. This is why the Act should be extended to the private sector where they are providing public services.

Recently, Labour has announced that it intends to set-up its own Commission on FOI that will look at the Act as a whole, including how it can be strengthened. This is a welcome development. However, as with the government’s Commission, its members and their actions must gain the confidence of civil society and government if its findings are ever to be realised.

Steve Goodrich is  Transparency International UK’s (TI-UK) Senior Research Officer. He is responsible for leading on TI-UK’s research into lobbying open data and state accountability. He spoke at ‘Freedom of Information: Extending Transparency to the Private Sector‘ on 28 September 2015, an event co-organised by the Bingham Centre for the Rule of Law and the IALS Information Law and Policy Centre.

  • For other resources on FOI and the private sector please follow this link
  • Our blog posts give the view of the author, and do not represent the position of the Information Law and Policy Centre or the Institute of Advanced Legal Studies.

Ben Worthy: How much can we know about the private sector – and what next for future transparency?

This post originally appeared on Dr Ben Worthy’s blog, OpenDataStudy. It is based on his contribution to an event on 28th September 2015 co-presented by the Information Law and Policy Centre and the Bingham Centre for the Rule of Law and hosted by Baker and McKenzie LLP, which looked at Freedom of Information and Extending Transparency to the Private Sector (resources here).

The focus of transparency is almost always on government and public bodies. However, over the past ten years, often outside of the headlines, a growing collection of laws, regulations and technological innovations have gradually shone a light on the private sector too. So what can we know and how far does it go, asks Ben Worthy.

Freedom of Information

One of the principle legal routes to accessing information about private bodies is the FOI Act, at least for those companies working on behalf of public bodies. Although it remains a ‘complex’ legal grey area, an FOI can obtain information material ‘held by a private company “on behalf of” a public authority with which it has a contract’. Public sector contracts in the UK are currently worth around £93 billion per year according to the ICO.

Section 5 of the Act also allows government to extend the law to actually cover companies within the scope of the Act itself, something the Public Accounts Committee has urged use of in the past. The last Labour government gave some thought to it in a rather long running consultation between 2007 and 2009. This led to some minor extension to cover ACPO [now called the National Police Chiefs’ Council] and exam bodies. The Coalition and new government took a different approach. Rather than extending the Act under section 5, they have championed the use of new FOI clauses in public sector contracts. It’s not exactly clear how far this is working.

The Scottish government has also consulted on extending its separate FOISA legislation in 2009, and in 2013 local trusts involved in leisure activities were covered. This year they have had a new consultation looking into whether other bodies such as private prisons can now come under FOISA (though this did not include Housing Associations as some hoped).

Alongside government attempts there has been some gradual natural ‘creeping’ outwards of FOI. Network Rail became subject to the Act in March 2015 (see some requests here) and new bodies such as the UK’s Police and Crime Commissioners are also covered (though this report was ‘deeply’ worried about how transparent they were-see page 11-12). The Police Federation is now set to follow. More significant than this ‘creep’ is the influence of decisions from appeal bodies and the courts. An important legal ruling in Fish Legal v Information Commissioner and others [2015] over FOI’s sister Environmental Information Regulations appeared to extend the law to water companies-and this may potentially include other utilities too.

The issue of extension remains a political one. All the major parties remain, at least in principle, supportive of pushing FOI further. The new Labour leadership has also committed [or actually re-committed] itself to extending the Act to private bodies doing public work as well as closing up ‘gaps’ in coverage caused by education and health reform.

Polling by the Scottish Information Commissioner showed that this is a policy that definitely gets the support of the public. A full 76% of Scots asked felt private prisons should be covered with 79% believing that housing associations should be as well. A UK tracker found that 75% of respondents saw extension as an ‘important’ issue and the Information Commissioner has recently offered a range of options to fill the ‘transparency gap’ caused by outsourcing.

Other Laws

It’s not only FOI. A succession of other laws have opened up different parts of the private sector. One recent headline grabbing reform, launched by the Prime Minister in 2013, has been the promise to create a Beneficial Ownership Register under the Small Business and Enterprise Act 2015. What this means is that as of April 2016 Companies House will publish, as Open Data, a list of the ‘Person[s] With Significant Control’ of all UK registered companies. Another eye catching reform has been over Extractives Transparency covering companies involved in natural mineral extraction such as oil or gas. The transposing of EU laws and joining of the International EITI network (see this paper) means all UK registered companies involved in this area will report tax payments, licences and contracts as of next year. Similar small pieces of transparency can be found across many other new laws and regulations. The recent Consumer Rights Act 2015, for example, ‘imposes a duty on letting agents to publish their fees and other information’.

The government has also pushed British dependencies and overseas territories to follow suit and publish Beneficial Ownership information. David Cameron sent a letter in 2014 on the subject to various tax havens. Although Grant Schapps appeared a little cooler on it during a visit to the Caymans, Cameron then pushed the issue again recently in Jamaica as did the new anti-corruption champion Eric Pickles, who appeared to threaten legislation.

Technology

Alongside legal mechanisms, there has been a growing use of online tools to open up companies. The government recently rebooted its Contracts Finder site that details its tenders and contracts with the private sector while other innovators, such as spendnetwork, have created new apps.

There have also been specific ‘transparency’ pushes after problems or controversies. This year David Cameron committed to publish data on property ownership following claims of large amounts of ‘dirty money’ swilling around the London property market and promised new data on gender pay gaps in all companies employing over 250 workers (this one is a bit of a sleight of hand as it was mandatory under the Equalities Act 2010 but was never implemented). These moves, as Jo Bates points out, may have all sorts of political implications. Nor is it clear what effect they may have. Despite hopes publishing salaries online will help lower inflated pay packets evidence indicates that disclosure makes them go up rather than down.

The Politics of Private Sector Transparency

Opening up is often piecemeal. Any politician pushing for any large scale opening up, such as using section 5 of the FOI Act, faces three main problems.

First, there is a potential reluctance to publish and it may be a struggle to get companies to cooperate. Our study of FOI and local government found that most companies do comply with FOI requests. However, any sceptical business can argue it is (i) unnecessary as so much information is published anyway (ii) a costly burden-see this analysis here.

Second, added to this may be the complexity of any change, that will take time and energy. Any large scale opening up only works with international cooperation. So, for example, UK Beneficial Ownership is slightly stymied by the fact that the EU equivalent will only be partially open. The devil, as someone warned of extractives, is in the detail.

Third, given these problems there needs to be a lot of political will, energy and attention to follow through. Any politician or party pushing large scale openness needs either a very good reason or very strong principles. Most likely it will only happen when there is a very obvious problem to solve or a very obvious political benefit (or both if possible).

What Next?

Accident and change will open up different areas. Legal changes, designations or rulings will continually shift the boundaries. Network Rail was re-designated for accounting purposes and FOI coverage was, in that sense, a ‘side product’. The laws in place will already keep opening up new areas through use and Martin Rosenbaum has shown how FOI has opened up not just MPs’ expenses but also restaurant hygiene ratings and MOT tests.

It is often pushed by scandal or concern in a specific area such as over tax avoidance (Beneficial Ownership), gender pay or corruption. It was the poor performance of G4S, for example, that led to recent calls to extend the FOI Act.

 

opencorporates

Finally, experimentation with open data and technology may move openness across the private sector. Chris Taggart, designer of Open Corporates, has created a prototype site Who Controls It? to use the new Beneficial Ownership data. As he points out, apps and websites alone won’t bring change but benefits may ‘be revealed when the beneficial ownership data is combined with other datasets, including government procurement, licences, environmental citations, and other public data.’

It’s unlikely there will be a clear ‘big’ opening up of the private sector comparable to FOI across government. It will probably happen, as many things do, gradually, through a mixture of accident, law, politics and experiment.

To find out more you can read the full IRM report of the UK’s Open Government Partnership commitments here see especially commitments 7 (Beneficial Ownership), 12 (Contracts) and 21 (Extractives).

Ben Worthy is Lecturer in Politics, Birkbeck College, University of London and blogs at OpenDataStudy.