FOI and Open Government: A snapshot

Impact of FOI
Most people working in local or central government will by now be familiar with the term FOI. Love it or loathe it, the term is now firmly part of the language of government. Introduced by the previous Labour Government, the Freedom of Information Act 2000 (FOIA) became fully effective from 2005 and has made its mark on the government information landscape. From the disclosure of the Attorney General’s legal advice on the war in Iraq in 2006 to the furore surrounding MP’s expenses in 2009, a number of key government news stories have had their beginnings with a request made under FOI.
The fanfare accompanying FOI heralded a time when government would be more open and accountable. FOI would help individuals to engage with the working of government and understand decisions made about them. And some of these aspirations have certainly come to pass. Indeed recent statistics demonstrate that individuals are more actively making FOI requests than at any time previously (the Ministry of Justice has indicated that 12,128 requests were made across central government in the first quarter of 2011). Furthermore, figures from the UCL Constitution Unit indicate that FOI requests to local government have more than doubled from 60,000 in 2006 to 165,000 in 2009.
Trend for Open Government
The momentum towards greater government transparency did not stop with the election of the Coalition Government in May 2010. To some extent, matters have sped up. Not long after the election, the Government published statements on transparency surrounding ministers’ gifts and meetings. At the end of May 2010, the Prime Minister wrote that all new central government contracts and most tender documentation would be published online in due course. This was followed up in June 2010 with requirements for the publication of salaries of certain civil servants and then in July 2010 with the launch of data.gov.uk enabling the public to access government datasets. Contracts Finder (www.contractsfinder.businesslink.gov.uk) followed in January 2011 as a tool for providing access to public sector procurement related information free of charge. Then in August this year, the Cabinet Office initiated a public consultation on Open Data as it seeks to follow the most ambitious Open Data agenda of any government in the world.

So with the new requirements for pro-active publication and the increase in FOI requests, FOI and transparency are increasingly gaining prominence. Does the Government’s enthusiasm for open data signal that FOI will eventually become redundant? Well…unlikely. In fact, the Office of Government Commerce (now subsumed into the Cabinet Office) indicates that exemptions under the FOIA should still be considered and applied before information is published online as part of the guidance on Transparency in Procurement and Contracting. Where this occurs, government FOI officials should discuss the application of exemptions with any other third parties that are affected e.g. suppliers.
Exemptions from Disclosure
Generally speaking, the exemption that is most frequently applied by public authorities (a term which includes central and local government) when responding to a FOI request is the personal information exemption. In broad terms this establishes that a public authority is not required to publish or disclose information where to do so would put the public authority in contravention of its obligations under the Data Protection Act 1998 (DPA). In other words, where the disclosure of the information would have a detrimental impact on an individual’s expectation of privacy.
The individual could be a public authority employee or any other individual. The key questions when thinking about this exemption are (i) is the information ‘personal data’ as defined under the DPA and (ii) if so, would disclosure of the personal data contravene the public authority’s obligations under the DPA? So, recently the courts decided that the publication by the Department of Health of statistical data about the number of abortions was not personal data since it was effectively anonymised. Separately, the publication of personal data about senior officials holding office within public sector organisations is usually not considered to be a contravention of the DPA since the disclosure of this personal data would be said to be within the reasonable expectations of a senior official who is held to a higher standard of accountability than a junior official.
Other exemptions typically used by public authorities relate to information held for the purposes of investigations or proceedings, or information that relates to the formulation of government policy. However, relying on an exemption generally requires a careful examination of the scope of the exemption (including the different elements that make up the exemption) and a close assessment of the specific information in question. Blanket reliance on exemptions to withhold an entire document or contract is not encouraged. Certain exemptions also involve the application of a public interest test. Public authorities can find out more about the parameters for relying on exemptions from guidance published on the Information Commissioner’s Office website (www.ico.gov.uk) and Ministry of Justice website ( www.justice.gov.uk )
Practicalities of FOI and Openness
Those working within government could well be asking how they can effectively publish the mass of information they are now proactively required to publish under the Transparency Agenda as well as keep on top of requests made under FOI (and all this in a climate of cost cutting). Must any new government IT system be designed with pro-active publication in mind? This was a proposal raised by the Open Data consultation and it certainly appears that there will be less and less scope in the future for withholding information or arguing that a system design makes information extraction too onerous. In any event, public authorities are required to comply with the Code of Practice on the Management of Records which should in effect make it easier to locate information.
Responding to FOI requests can absorb considerable time and resources. Current regulations do not oblige a public authority to comply with a request if the authority estimates that the cost of compliance with the request would exceed the stipulated appropriate limit. However, only certain activities can be included in forming the estimate which makes this exemption narrower than it at first seems. Significantly, the Open Data consultation specifically raises the possibility of a new, higher cost limit for requests for data held within ICT systems procured after July 2012 since this acts as ‘an incentive for public service providers to give due weight to the importance of designing systems from which data can be extracted quickly’.
And what about a request that appears to require the creation of new information? A public authority is not required to create new information in response to requests. But it will not be considered to be creating new information where it presents information that it holds in a list or schedule, compiling an answer to a request involves simple manual manipulation of information held in files or it can extract information from an electronic database by an easy search method.
The Future?
Although Labour has indicated that they are as committed to transparency as the Coalition, there is still a question mark over whether future governments would continue to expand the openness agenda.  However, whilst Tony Blair has said publicly that he now regrets bringing in the Freedom of Information Act 2000, it would be a brave government that decided to repeal or restrict its impact.
Victoria Hordern is a solicitor at Field Fisher Waterhouse LLP (www.ffw.com) and advises on privacy and information law. She authored the chapter on Freedom of Information in the recently published second edition of ‘A Manager’s Guide to IT Law’ published by BCS, The Chartered Institute for IT. She can be contacted at  victoria.hordern@ffw.com.

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