UK Freedom of Information E-news - September 2011

  1. FOI Campaign draws attention to public authorities destroying information
  2. FOI Act should be extended to private companies providing public services
  3. Parliament could use FOI more, researchers say

1. FOI Campaign draws attention to public authorities destroying information

The Information Commissioner’s powers to prosecute authorities or officials who destroy information to prevent its release under the Freedom of Information Act should be strengthened, according to the Campaign for Freedom of Information.

Special advisers and the Secretary of State for Education are said to have used private email accounts in order to avoid the obligation to release them under the FOIA.

Director of the Campaign for Freedom of Information, Maurice Frankel, said: “If, in trying to answer FOI requests, the Department asked the minister or special advisers for copies of emails about their official work held on personal accounts, and they deliberately withheld or destroyed them, they probably committed offences under FOIA.”

“If the emails had once existed but been destroyed before a request was made, no offence would have been committed – even if they were deliberately destroyed to pre-empt any future request. This highlights a shortcoming in the Act, which does not prevent records being destroyed in anticipation of a future FOI request.”

The Campaign says that this kind of pre-emptive shredding of records should also be an offence. Under section 77 of the Freedom of Information Act, it is an offence for a public authority or an official to deliberately destroy, alter or conceal a record which has been requested under the FOI Act with the intention of preventing the disclosure of information to which the requester is entitled.

Giving evidence at the House of Commons Justice Committee on 13 September, Information Commissioner, Christopher Graham, said he would like to have section 77 offence in FOIA reviewed. Graham explained that as a section 77 offence can only be dealt with at a Magistrate's Court, and the ICO has to be able to bring such offences within 6 months of the offence, it often loses the opportunity to do so.

The Information Commissioner’s uncorrected evidence 

2. FOI Act should be extended to private companies providing public services

The House of Commons' Public Accounts Committee has called on the government to extend the Freedom of Information Act to public companies providing public services. Its report on Private Finance Initiatives (PFI), i.e. funding public infrastructure projects with private capital, found that there is poor transparency of investor and contract information.

The Committee says it suspects that initial investors make excessive profits from selling PFI shares, but there is no information available to back this assumption as FOI does not currently apply to these companies. Transparency on the full costs and benefits of PFI projects to both the public and private sectors has been obscured by departments and investors hiding behind commercial confidentiality.

The Committee recommends that Freedom of information should be extended to private companies providing public services. The Treasury should define commercial confidentiality and the exceptional circumstances where it applies.

The report, Lessons from PFI and other projects

3. Parliament could use FOI more, researchers say

MPs do not make as much use of FOI as they could, reveals a recent study published by University College London’s Constitution Unit.

“The major problem with FOI for some parliamentarians is time and resources. FOI requests require patience and determination, especially if the government puts up a fight,” said Dr Ben Worthy, the lead researcher of the study.

“Members already have Parliamentary questions, and already have direct access to the upper echelons of power. Many, especially peers, stick to the traditional methods available to them; they feel FOI might break the cordial nature of the House. FOI can be seen as an underhand tactic.”

Some MPs have used FOI to uncover politically sensitive information, for example the All-Party Parliamentary Group on Extraordinary Rendition made a FOI request to research the legally dubious movement of individuals across international boundaries, linked to torture.

The study, Sword and the Shield: The use of FOI by Parliamentarians and the impact of FOI on Parliament

Copyright Privacy Laws & Business 2011