There seems to be a renewed enthusiasm for the Freedom of Information Act (FOIA) to extend to the private sector. On the Daily Politics programme last week, Labour councillor Theo Blackwell made his case for the extension, claiming that “a complex web of private contracts” between local and central government reduces accountability. Coinciding with this call, a bill was introduced in Parliament that, if passed, would extend FOIA to NHS private contractors.
What is the Bill about?
On 8th October, Labour MP Grahame Morris introduced the Freedom of Information (Private Healthcare Companies) Bill 2013-14 to the House of Commons under the Ten Minute Rule. He said in his speech to Parliament that “private healthcare companies should not be permitted to hide behind a cloak of commercial confidentiality” and that “billions of pounds of taxpayers’ money is being awarded to private sector companies under barely transparent contracts”.
He continued: “Meanwhile, private companies are free to benefit by gaining detailed knowledge of public sector bodies through their use and submission of FOI requests. The same information is then used by the private sector to undercut or outbid the very same public sector bodies when contracts are tendered or put up for renewal.”
The purpose of the Bill is to bring about more transparency to private firms that provide public health services, and to also ensure that there is fair competition when private and public sector firms bid for NHS contracts.
The Bill is expected to have its Second Reading on 8th November 2013.
But aren’t there already contractual disclosure provisions in NHS contracts? Why the need for the Bill?
You can access information about NHS private providers through clinical commissioning groups. These groups comprise of GPs who are responsible for commissioning or buying health care services. Since commissioning groups are subject to the requirements of FOIA, a standard NHS contract may contain obligations of assistance and cooperation on the private provider to enable the commissioner to comply with its duties under FOIA. For example, according to a recent interview with Virgin Care’s head of innovation, Virgin Care does not have to comply with FOIA requests, but it does have to supply commissioners with information if they are sent one about its health services that they provide to the NHS.
But not everything is fine and dandy. Monitor, the sector regulator for health services in England, stated in its review for the Secretary of State for Health in March 2013 that despite having Freedom of Information requirements in NHS contracts with private and charitable providers, “it is not clear that this is operating effectively as yet, and other aspects of transparency do not apply across all types of provider”.
The effectiveness of FOIA contract clauses in general was raised on the Daily Politics programme. Damian Green, Minister for Police and Criminal Justice, was of the opinion that public sector bodies should ensure that their contracts with private providers contain these clauses. Yet when it was suggested that not all were being properly implemented, Mr Green replied rather unconstructively: “In that case, they should be.”
But who can ensure that disclosure clauses are contained in contracts with private providers? In response to the programme, Campaign for FOI tweeted that the Information Commissioner’s Office cannot enforce them.
Is it likely that the Bill will pass the Second Reading?
The Bill is certainly in for a rough ride. Last year, Mr Morris put forward an Early Day Motion, which proposed that private healthcare companies should be subject to FOIA. The motion was signed by 111 MPs, with the majority of support coming from fellow Labour MPs. Not one Conservative MP signed the motion.
The current government is unlikely to support the passing of the Bill. Commenting on the Justice Committee’s “Post-legislative scrutiny of the Freedom of Information Act 2000”, it indicated that FOIA was not going to be extended anytime soon and that the approach of ensuring that contracts contain disclosure provisions is here to stay:
“The Government expects that contractors will fully assist public authorities in meeting their current obligations under FOIA… contracts should include clear provisions in this regard, and stress that public authorities should not be reluctant in taking all necessary steps to ensure compliance.”
The government also suggested that any extension of FOIA would have a burdensome impact on businesses.
Few expect the Bill to gain enough support to pass yet the debate on whether FOIA should be extended to the private sector is unlikely to cease anytime soon.
Have you ever submitted a Freedom of Information request for a specific dataset? When you received the dataset, was it in a form that you could easily use and then re-use in the future or was it annoyingly in a PDF format? Then perhaps you’ll welcome the new dataset changes under the Freedom of Information Act (FOIA).
As of 1st September, FOIA requires public authorities to release requested datasets in a form that enables re-use, often a CSV format, where “reasonably practicable”. They also have to publish these re-usable datasets as part of their publication schemes. These changes were introduced by the Protection of Freedoms Act 2012, which made amendments to sections 11 and 19 of FOIA.
“For the first time, the Act now gives users the right to re-use datasets,” writes Steve Wood, Head of Policy Delivery for the Information Commissioner’s Office (ICO). You can access the ICO guidelines on the changes by clicking here.
When public authorities release these datasets however, the datasets might be subject to a licence that sets out the terms for re-use, like the Open Government Licence, if they contain copyright material owned by the public authority. Public authorities can also charge for making datasets available for re-use.
What’s this thing about licences?
There are three types of licences, according to the new section 45 code of practice on datasets by the Ministry of Justice. They are the following:
- The Open Government Licence where you can copy, publish, distribute, adapt and exploit information for commercial purposes. There are not many restrictions on use and re-use, and you can use the information under the licence free of charge.
- The Non-Commercial Government Licence, which is a little more restrictive than the Open Government Licence. You are free to copy, publish, distribute, transmit and adapt the information, but you cannot use it for commercial purposes. As the blog Act Now observes, “it will be interesting to see if public authorities routinely offer this licence (even though it would be against the spirit of the Act and the new code) just to prevent the private sector from profiting from the requested dataset”.
- The Charged Licence, where according to the section 45 code, a public authority can charge you for the re-use of a dataset.
Coming into force on 1st September, The Freedom of Information (Release of Datasets for Re-Use) (Fees) Regulations 2013 confers powers on public authorities to charge for datasets, and that the total fee shall not exceed the sum of “the cost of collection, production, reproduction and dissemination of the relevant copyright work” and “a reasonable return on investment”. The Act Now blog, writing on these dataset changes, notes that “it will be interesting to see how many complaints are made to the Information Commissioner about public authorities over charging”. Interesting indeed.
Does this mean new rights of access?
‘Fraid not. When you request datasets under FOIA, information officers still have to assess whether the dataset engages exemptions and whether the data contained in these sets breaches the Data Protection Act. As many publications on the new changes emphasise:
“The new provisions are about how information is released, rather than what is released… There is no new duty to provide any information in response to a FOIA request that was not previously accessible, and there are no new exemptions from that duty” – page 2 of the ICO guidelines.
The new amendments are welcomed changes to FOIA, since, as Mr Wood suggests, “the more usable the data, the greater the potential to enhance accountability, transparency and economic growth”. It’s in the spirit of the government’s drive for open data, but the changes do not strengthen our right to access (we’ve blogged about the difference between open data and the right to access).
On a practical level the new dataset changes (as well as publishing datasets in general) carry the risk of data-dumping: publishing lots and lots of information without clearly labelling it, thus making it difficult and confusing for the public to access and analyse. The code recommends that public authorities should issue metadata and contextual information about the datasets, but how many public authorities will be able to achieve this for each dataset they publish?
Furthermore, as previously mentioned, public authorities are under a duty to release datasets in an electronic form that allows re-use where “reasonably practicable”. According to the code, “reasonably practicable” will depend on the circumstances e.g. the cost of doing so, the work involved in converting files and whether any specialist equipment or software is required. This raises the issue as to whether public authorities have the technology to enable re-use, which then begs the question, are public authorities ready for these changes?
Alaska climate body hasn’t met since 2011, documents show
Rapid-response taskforce – set up by Sarah Palin to protect state from effects of global warming – last met in March 2011
A rapid-response taskforce, intended to protect Alaska from the worst effects of climate change, has failed to meet for two years, according to newly released documents.
The Immediate Action Work Group, which reports directly to Alaska’s governor, Sean Parnell, was charged with developing immediate response plans to future climate disasters.
However, the rapid-response team has not met since March 2011 and its supervisory body, the Sub-Cabinet on Climate Change, has gone even longer without meeting.
Suzanne Goldenberg | The Guardian | 5th February 2013
Information commissioner: Compulsory data protection audits needed
Compulsory data protection audits of councils and the NHS are needed to help eliminate “really stupid basic errors”, the Information Commissioner has said.
Christopher Graham told MPs taxpayers were losing out when public bodies were fined for mistakes in handling sensitive information.
He said “consensual” voluntary audits in some areas had proved a success.
But he said the Department for Communities and Local Government was “surprisingly opposed” to the proposal.
The watchdog currently only has the power to launch compulsory audits across central government. For all other organisations it has to secure consent before an audit can take place. Read more.
BBC | 5th February 2013
Somewhere, somehow, the work to end violence against women lost momentum. Despite the improvements made over decades in tackling domestic and sexual violence, the scale of the problem remains shocking. Repeat violence is worryingly high, and there is a risk that we are taking progress for granted when much more could and should be done.
New freedom of information data from police forces reveals that up to a third of domestic incidents recorded by the police are “repeat” incidents, that is the same victims calling for protection from the same perpetrators. Time and again, opportunities to intervene and protect families are missed.
In the run up to Valentine’s Day on 14 February – the focus of the international campaign One Billion Rising to end violence against women – there is more every one of us could do to reduce the insidious, dangerous violence that still haunts too many women’s lives. Read more.
Yvette Cooper | The Guardian | 5th February 2013
The current year has so far seen 1,054 cases, compared to 712 in 2011/12. The just released figures for Q3 show a record number of new cases (424) for a quarter.The number of new data protection enforcement cases taken on by the Information Commissioner’s Office in 2012/13 has surged by almost 50% compared to the whole of the previous year – with three months still to go, it has emerged.
Potential reasons for the rises include the introduction in the NHS of routine reporting of all data security breaches to the ICO. Previously only serious breaches, involving particularly sensitive data or a high number of individuals, were reported.
Another factor in the growth in the ICO’s caseload could be the impact of monetary penalties, with organisations aware that the watchdog looks favourably on those that self-report breaches rather than try to hide them. Read more.
Local Government Lawyer | 5th February 2013
The Official Information Act will be extended to cover some aspects of how the courts work, but the Government has ignored calls for it to also cover Parliament.
It is also set to bring in new grounds for blocking the release of commercial information in response to recommendations from the Law Commission.
Justice Minister Judith Collins yesterday said the Government planned to press ahead with some of its key recommendations.
These included extending the freedom of information law to the administrative functions of the courts, including information about expenditure, resources and statistical information about cases. Read more.
Vernon Small | Stuff.co.nz | 5th February 2013
Drop in school sport support blamed on funding cuts
On the eve of an Olympic Games that has promised to “inspire a generation of young people through sport”, research has indicated a 60% drop in the amount of time dedicated to organising school sport nationwide in the wake of government cuts.
The research, compiled by Labour through Freedom of Information requests to 150 top tier local authorities, shows there are now 110 fewer School Sport Partnerships – local networks of organised school sport – than there were before the cuts in 2009/10, a decline of 37%.
Almost half of local authorities (48%) recorded a decrease in the number of School Sport Partnerships, while 28% no longer have any
Owen Gobson | The Guardian | July 18th 2012
Information commissioner welcomes ‘step change’ in transparency
Christopher Graham, the information commissioner, heralds the coalition’s open data white paper as “a step change” in commitment to transparency in government and public services.
Among the aims outlined in the paper are easier access to public data, more standardised formatting and embedding a ‘presumption to publish’ most data. In Graham’s view, the document represents an extension of the progress made over a number of years with freedom of information.
“We don’t see open data as a replacement for freedom of information,” he explains. “You still need to have access to other information under freedom of information, email and reports and so on. There are two things together – data sets and the more traditional record – which lead to true openness. But on the whole, a big tick.”
Gill Hitchcock | The Guardian | July 18th 2012
Pressure on budgets makes primary health care trusts limit operations
Freedom of information requests by GP magazine reveal that 90% of trusts hold back on hip, knee and cataract operations
Pressure to save money has left 90% of primary care trusts restricting procedures including hip, knee and cataract operations, weight loss surgery and tonsillectomies, according to freedom of information requests by GP Magazine.
Health rationing, sometimes cutting across national guidance on the treatment of conditions, was leaving patients very frustrated, according to one senior GP; it was creating waiting lists by the back door, according to another. The National Obesity Forum said cuts in bariatric surgery could lead to crippling extra costs from diabetes, heart disease and cancer.
James Meikle | The Guardian | 19th of June 2012
Hate crimes against disabled people soar to a record level
‘Anti-scrounger’ rhetoric blamed for doubling of offences since 2008 financial crisis
The number of disability hate crimes reported to police has reached a record high, sparking concerns that the Coalition’s “anti-scrounger” rhetoric is fuelling hostility to the most vulnerable members of society. A total of 1,942 disability hate crimes were recorded by police forces in England, Wales and Northern Ireland last year.
That figure, based on Freedom of Information answers supplied by 43 of 44 forces, represents a 14 per cent rise on 2010. Disability hate crime has doubled since the start of the financial crisis in 2008. Despite the rise, the number of people convicted for the crime actually fell last year. Only 523 people were found guilty of a disability hate crime in 2011, The Independent has discovered, down 5 per cent from 2010. It suggests that barely one in four reported crimes leads to a conviction – a ratio that got worse last year.
Ben Riley-Smith | The Independent | 19th of June 2012
Tobacco investments to be reconsidered by Norfolk and Essex councils
Two councils in the East region are to reconsider multi-million pound pension fund investments in tobacco before they take a lead role in NHS anti-smoking campaigns in 2013.
The move comes after a BBC Freedom of Information Act (FOIA) request showed councils across the region have invested more than £167m in tobacco.
Norfolk has invested £25.9m while Essex has invested £9.1m.
The two councils have said they would now review their investments
BBC | 18th of June 2012
Devon and Cornwall Police Taser use nearly doubles
The number of times police have used Tasers in Devon and Cornwall has nearly doubled over a two-year period.
Figures obtained by the BBC through the Freedom of Information Act show the stun guns were used 34 times in 2010 and 65 times last year.
Human rights groups say they were being used too readily. Devon and Cornwall police said the rise could be linked to the increased number of officers now trained to use Tasers.
Of the force’s 3,200 officers, 480 are trained to use Tasers, up from 150 before 2009 and spending on the weapon rose from £33,470 in 2009 to £101,379 last year, according to an FoI request.
BBC | 19th June 2012
Fife Ness Coastguard Station continues ‘life-or-death’ work as closure approaches
A significantly understaffed workforce at Fife Ness Coastguard Station has coordinated more than 400 potential life-and-death rescue operations since it was announced last July that the centre is to close.
A Freedom of Information request by The Courier has revealed that between July 2011 and June 7 the rescue centre — which will close on September 28 — handled 426 incidents recorded as alarm, distress or uncertainty requiring rescue coordination.
The news that Fife Ness, along with the base at Clyde, would be shutting was confirmed by the UK Government last summer following a lengthy consultation period.
Michael Alexander | The Courier | 18th of June 2012
Court out: Shocking haul of 10,000 deadly weapons seized every year from people going into court
At least 35,000 dangerous items such as guns and knives have been recovered by court staff in the last three years.
More than 10,000 deadly weapons are seized every year from suspects, witnesses and the public as they go into court. Figures reveal at least 35,000 dangerous items such as guns and knives have been recovered by court security staff across the country in the last three years.
Mirror | 18th of June 2012
Fear of bullying claims hits public-sector reform
Senior officials express grave doubts over viability of Croke Park deal. Public-sector reform is impossible because managers “fear” they will not be “backed up” and could be accused of bullying if they try to tackle underperformance, top civil servants have said.
Confidential Department of Finance documents released under the Freedom of Information Act show senior officials have expressed grave doubts over the viability of the Croke Park deal.
These documents come amid fresh concern that the agreement is not delivering and follow comments by Transport Minister Leo Varadkar that compulsory redundancies must form part of any new Croke Park deal.
Daniel McConnell and Tom Lyons | Irish Independent | 17th of June 2012
Tomorrow evening Request Initiative will host a roundtable discussion on the public interest and FoIA led by barrister, information law specialist and member of our board Robin Hopkins.
Robin advises the Information Commissioner’s Office, local authorities and other public bodies on policy changes, consultations and equalities duties. He co-edits the Information Law Reports and Panopticon, a leading information law blog, and is on the editorial board of the Freedom of Information Journal and of the Law Society’s Freedom of Information Handbook (2012 edition).
Public interest tests apply to two thirds of the exemptions in the FoIA and every exception in the EIR. But the public interest is not clearly defined anywhere in UK law. What is meant by the public interest?
Campaigners and journalists argue open government and transparency prevent corruption and bad practice. Therefore, the public interest is served by publishing information that exposes wrongdoing and waste.
However public bodies reason that transparency can impede the function of government and have a “chilling effect” on free and frank discussions. Therefore it is often in the public’s interest for meetings to take place in private, behind closed doors. Nick Clegg said that publishing the NHS risk register would reduce civil servants’ ability to provide “frank and fearless” advice to ministers.
Request Initiative board member and barrister Robin Hopkins will lead a discussion that addresses some key issues around the public interest. How do different organisations understand the concept? Why can’t civil servants provide frank and fearless advice to the public? How can campaigners and journalists deploy public interest arguments most effectively? What are the legal precedents that can help us understand the public interest as it is applied in the UK?
Request looks forward to welcoming back an audience of informed FoIA professionals, journalists, campaigners and students for what promises to be its best event of the year for so far.
Tickets are free but registration is required. Please use this link: http://publicinterestandfoia.eventbrite.co.uk/.
Journalists should be granted greater access to sensitive personal data in cases where publication has a strong public interest under the Freedom of Information Act, a leading barrister told data protection officers today.
Robin Hopkins, a practicing barrister specialising in transparency, was speaking at the Information Commissioner’s Office Data Protection Officer Conference in Manchester attended by hundreds of staff from councils, central government, the NHS and private companies from Apple to Zurich Financial Services.
He identified a trend in decisions by information tribunals in deciding sensitive personal data should be given to reporters for publication where there was a public interest even where that same data would not be given to a member of the public.
“Journalists have a stronger hand to play at tribunal than they had even 18 months ago,” he said. Graham Smith of the Information Commissioner’s Office chaired the session and added: “The applicant blind element is starting to crack a bit and I don’t think that is entirely inappropriate.
Hopkins, from the law firm 11KBW and a blogger at panopticonblog.com, referred to the success of Ian Cobain of The Guardian in obtaining information relating to the prosecution of BNP leader Nick Griffin’s 1998 prosecution.
He pointed to the fact that Condition 10 of Schedule 3 of Section 40 (2) of the Freedom of Information Act triggers the Data Protection (Processing of Sensitive Personal Data) Order 2000.
In the order “lawful processing” of personal data includes publication by a journalist where disclosure serves a “substantial public interest” and also “in connection with” issues such as “the commission of an unlawful act”.
The Freedom of Information Act states that public bodies must treat requests in a way which is “applicant blind”. However, this clause in the Data Protection act is recognised as an exemption.
Smith also told the workshop of data protection officers that there was nothing in the law preventing them from asking about the applicant if that was helpful, for example if they are a journalist, although they could not limit the information disclosed based on the answer.
Almost three million criminal record checks were carried out in England and Wales last year, amounting to one person in 20 having their backgrounds examined, a FoIA reveals.
A Freedom of Information Act request obtained by Big Brother Watch revealed that councils, companies and scout groups were among more than 2,000 organisations that ran the checks. Nick Pickles, from Big Brother Watch said: “The checks have already been shown to brand innocent people as criminals and cost people their jobs for totally unrelated incidents that would not suggest they pose a risk.”
The Government has outlined plans to reform the system of checks, saying it was time to return to a more common sense approach.
Nick Clegg, the Deputy Prime Minister, said last February the current system would be scaled back so that only those working most closely with children or vulnerable adults would need to undergo the checks. The government said results would also be transferred when people change jobs, cutting down on bureaucracy.
The changes were outlined in the Protection of Freedoms Bill, which aims to scale back state powers.
Mr. Pickle, the pressure group’s director said: “For nearly three million people to be checked in just one year is remarkable. Given just how many organisations now have access to the system, there is a clear risk that it is easy to delve into someone’s private life and run a CRB check without them ever knowing.” He added.
Steve Jobs’ ‘distorted reality’ and drug use, FBI file shows
The US Government released a previously secret 191-page FBI dossier on the late Apple chief Steve Jobs yesterday, following a Freedom of Information Act request. The document, compiled 20 years ago, notes his past drug use and cites interviews with people who say he had a penchant to “distort reality”. One long–term friend described him as “a deceptive individual who is not completely forthright and honest. Jobs will twist the truth and distort reality in order to achieve his goals”.
Other acquaintances criticised the Apple creator for abandoning his highschool sweetheart after she gave birth to their first child and confirmed Jobs’s own confession to the FBI that he had experimented with drugs in his youth. While a number of people, including family and friends, portrayed Jobs in negative terms, criticising his manner and his personal life, they nevertheless described him as an impressive individual.
A FoIA reveals another child protection scandal at Haringey Council
Haringey Council in North London — slammed for its failings in the death of Baby P- failed to protect ten starving children and tries to keep it a secret, The Sun reports. The case involved a mum jailed last year for cruelty after her ten children were found filthy, starving and covered in lice. The report reveals that council staff first had contact with the family in July 2002, seven years before police rescued the children. At least one was on Haringey’s at risk register in 2006, three years before their mum was arrested. It raises fears the youngsters could have been rescued earlier.
The Sun took the case to the Information Commissioner’s Office where Deputy Commissioner Graham Smith ruled in its favour. His ruling will apply to all councils in future. Claude Knights of the charity Kidscape said: “This could help save lives. If The Sun had not pursued it, how would we have known about Haringey’s failings?” Haringey said: “This case happened when things were going badly wrong with our child protection services.”