I have a short article about the above in February’s Counsel magazine. A longer version appeared in the NLJ earlier this month.
Month: January 2009
Coroners and Justice Bill
The Coroners and Justice Bill was introduced into the House of Commons on 14th January 2009 and will have its Second Reading on 26th January 2009.
The title sounds remote from information law; but Part 8 of the Bill contains some important proposed amendments to the Data Protection Act 1998.
In the first place, there are provisions giving the Information Commissioner new inspection and audit powers in relation to government departments and certain other public bodies, in order to assess their compliance with the Data Protection Act. These appear to be a response to the well-publicised series of public sector data losses over the last year or so.
More controversially, the Bill makes provision for information-sharing orders, designed to facilitate the use of personal information for purposes other than those for which it was originally obtained. Data sharing is a subject of long-standing debate (especially within the public sector); it was recently considered in the Wolpert/Thomas data sharing review. The Bill is intended to bring greater clarity to this area. The proposals have however drawn a hostile response from some civil liberties groups concerned with personal privacy.
For the full text of the Bill as introduced, see:
https://www.publications.parliament.uk/pa/cm200809/cmbills/009/2009009.pdf
For a Ministry of Justice paper explaining the various powers to make delegated legislation that are contained in the Bill, see:
https://www.justice.gov.uk/docs/coroners-justice-bill-memo-hol-delegated-powers.pdf
For the Wolpert/Thomas review, see:
https://www.justice.gov.uk/docs/data-sharing-review-report.pdf
For criticism of the proposals, see:
https://www.boingboing.net/2009/01/23/worstever-threat-to.html
Barack Obama in FOIA drama
On his first full day in office – 21st January 2009 – President Obama issued a Memorandum for the Heads of Executive Departments and Agencies about how they are to apply the US Freedom of Information Act.
Here’s an extract:
A democracy requires accountability, and accountability requires
transparency. As Justice Louis Brandeis wrote, “sunlight is said
to be the best of disinfectants.” In our democracy, the Freedom
of Information Act (FOIA), which encourages accountability through
transparency, is the most prominent expression of a profound
national commitment to ensuring an open Government. At the
heart of that commitment is the idea that accountability is in
the interest of the Government and the citizenry alike.
The Freedom of Information Act should be administered with a
clear presumption: In the face of doubt, openness prevails.
The Government should not keep information confidential merely
because public officials might be embarrassed by disclosure,
because errors and failures might be revealed, or because
of speculative or abstract fears. Nondisclosure should never
be based on an effort to protect the personal interests of
Government officials at the expense of those they are supposed
to serve. In responding to requests under the FOIA, executive
branch agencies (agencies) should act promptly and in a spirit
of cooperation, recognizing that such agencies are servants of
the public.
All agencies should adopt a presumption in favor of disclosure,
in order to renew their commitment to the principles embodied
in FOIA, and to usher in a new era of open Government. The
presumption of disclosure should be applied to all decisions
involving FOIA.
For the full document, see:
https://www.eff.org/files/filenode/foia/2009foia.mem.rel.pdf
MPs expenses – another twist in the tale
The long-running story of how the Freedom of Information Act (FOIA) applies to MPs’ expenses took another twist today, with the abandonment of plans to amend FOIA so as to limit disclosure.
In February last year the Information Tribunal ruled that the House of Commons had to disclose detailed information about claims by individual MPs for the Additional Costs Allowance (ACA). Broadly speaking, this allowance defrays hotel or second home expenses incurred in the performance of Parliamentary duties. An appeal by the House of Commons to the High Court was unsuccessful. The effect appeared to be that in the great majority of cases the House of Commons would need to disclose information about each item of expenditure claimed by each individual MP. Although the case was specifically about the ACA, clearly it had implications for MPs’ expenses generally.
Last week Harriet Harman MP, Leader of the House of Commons, announced a proposal whereby information about MPs’ expenses would be published in summary form, under 26 different categories, rather than item by item. FOIA would be amended so as to negate the effect of the earlier Tribunal and High Court decisions.
Today it was announced at prime minister’s questions that the proposed amendment had been shelved. It remains to be seen whether there will be any further proposal to amend the legislation.
For those with a close interest in FOIA, the mechanism used for the proposed amendment was very interesting. The public authorities covered by the Act are listed in Schedule 1. Section 7(3) allows the Secretary of State by order to amend Schedule 1, inter alia so as to limit to information of a specified description the entry relating to any public authority. The proposed order would have provided that the Houses of Parliament were not “public authorities” in relation to information about MPs’ expenses, save to a very limited extent. In other words, section 7(3) effectively allows the scope of the Act to be reduced, without the need for primary legislation.
The Information Tribunal decision referred to above is at https://www.informationtribunal.gov.uk/DBFiles/Decision/i85/HoC3.pdf. The High Court decision is at https://www.bailii.org/ew/cases/EWHC/Admin/2008/1084.htm. For BBC coverage of the story, see https://news.bbc.co.uk/1/hi/uk_politics/7831565.stm and
https://news.bbc.co.uk/1/hi/uk_politics/7842402.stm