Tag Archives: transparency

Investigatory powers bill and libraries

This blog post was contributed by Ian Clark from the Informed team and Lauren Smith, a Research Associate at the University of Strathclyde.

The news that libraries may be forced to hand over personal data to the security services raises serious ethical questions regarding the confidentiality of what people choose to read. A fundamental ethical principle of the library and information profession is the freedom of individuals to access information and read whatever they choose in confidence. The Chartered Institute of Library and Information Professionals (CILIP) is very clear on the obligations to library users. Its ethical principles state the need to demonstrate:

Commitment to the defence, and the advancement, of access to information, ideas and works of the imagination.

Such a principle is undermined if the government is known to be able to access data on the “information, ideas and works of the imagination” that individuals access. The chilling effect of such a move would inhibit individuals from accessing whatever they want without fear of reprisals from the state.

Furthermore, CILIP has also endorsed the Council of Europe’s “Public access to and freedom of expression in networked information: Guidelines for a European cultural policy”. These guidelines are very clear that what users choose to access should be treated as confidential and that the privacy of users should be paramount:

1.2 It is the responsibility of individuals using Public Access Points to decide for themselves what they should, or should not, access.

1.3 Those providing Public Access Points should respect the privacy of users and treat knowledge of what they have accessed or wish to access as confidential.

The proposals laid out by Theresa May seriously threaten these basic ethical principles. If the state is able to access data on what individuals have been reading in public libraries their freedom to read and access what they choose is seriously compromised.

Ironically, these proposals come at a time when libraries and librarians in other parts of the world are emphasising the importance of ensuring that individuals can access what they wish in confidence. In December last year, librarians were in uproar when Haruki Murakami’s borrowing record was published in a Japanese newspaper. In response, the Japan Librarian Association re-affirmed that:

“Disclosing the records of what books were read by a user, without the individual’s consent, violates the person’s privacy.”

In the face of similarly intrusive legislation (the PATRIOT Act) in the United States, some libraries have begun purging records of inter-library loan requests to protect users’ privacy. As yet we have not seen comparable moves by the profession in the UK, but the increasingly aggressive rhetoric from the government regarding what and how individuals seek out information is clearly in conflict with the values we espouse as a profession.

Libraries should not distinguish between books and web activity. What individuals read and access online should be as private and as confidential as their book borrowing habits. Although we do not have the constitutional protections to intellectual liberty that American library users are afforded under the First Amendment, both professional organisations (such as CILIP) and political bodies (Council of Europe) are very clear that what a user accesses in a library should remain confidential. The proposals put forward by Theresa May threaten these basic principles of intellectual freedom and liberty and will put intolerable pressure on public libraries. Our government’s desire to undermine these principles is not only dangerous, but will also seriously undermine the bond of trust between public libraries and their users.

Ten years of freedom of information – what does the future hold?

Image c/o v1ctory_1s_m1ne on Flickr.

To celebrate 10 years of the Freedom of Information Act, Bilal Ghafoor (FOI Kid) reflects on its impact and ponders what the future holds for this important Act of parliament.

If you go onto the website or read the official publications of any government department, local council, NHS organisation, the one thing that almost all of the information will have in common is that it has been volunteered. And while the communications and press teams in many organisations do a great job, ultimately they are a prism through which an organisation shines out what light it wishes to. Most press releases or official statements do not contain raw data. Most organisations do not publish email trails that they are even slightly uncomfortable about.

The Freedom of Information Act 2000 came into force on 1 January 2005 and it has, in the words of the Justice Select Committee, which undertook a post legislative review of the Act, been “a significant enhancement of our democracy.”[1] However, it went on to note that “we are not surprised that the unrealistic secondary expectation that the Act would increase public confidence in Government and Parliament has not been met.”[2] This was, after all, while the fire of the MPs’ expenses scandal was still smouldering.

I continue to be struck by an observation I heard when I attended a Request Initiative event on FOI that all the complaints about the burden of FOI are irrelevant – public authorities hire FOI officers and spend money not on releasing information but on withholding it. Aside from personal data, which must be guarded, there is more truth to this idea than I would like.

I remember when I worked in FOI in a central government department, a Labour Secretary of State visited us. The first thing he did was apologise to us for bringing in the Act. It was not just Tony Blair who later thought it foolish. We in the FOI team (it seemed to be the natural home of a couple of a Marxists who had somehow joined the civil service), thought it to be utterly bizarre. How was it not a good thing (and not just because it kept us in employment)?

It is our tax, it is our society, these institutions are ours, the work they do belongs to us. It almost seems like a naïve assertion, but perhaps that is because it is so true. If we live in a democracy.

But there are dangers. The FOI Act, which was heroically worked on by the Campaign for Freedom of Information (which just celebrated its 30th birthday party – 20 years older than the legislation itself), came into force over a long period of time and the dangers are similarly slow but sure.

The Government’s response to the post legislative review[3] highlighted that it wanted allow organisations to refuse multiple requests from the same person or organisation. At first glance, this might be ok – why should one person be allowed to harass an organisation with lots of requests? But what about a local newspaper wanting to make lots of requests to local organisations? How is a local newspaper  supposed to survive on being able to make only a small number of requests in any one year to the local council?

There is a suggestion that ‘thinking time’ be included in cost limits for responding to a FOI. This means that any request of a new kind or for new types of information or invoking a new exemption will start to breach the cost limits and be refused. This encourages organisations to hire non-specialists. Or to copy in 15 members of staff into emails about FOI requests and to count thinking time 15 times over.

The chronic under-funding of the Information Commissioner’s Office (ICO) is another terrible problem. While the ICO’s basic stance seems to be to advocate the release of information and accessibility for all, in the latest triennial review of the ICO, its own submission to the Ministry of Justice[4] proposed a charge for requestors wanting to use its services. This would be appalling. But I can see that the ICO is constantly frustrated by its tiny grant in aid (the organisation runs its entire FOI operation for less than many central government department’s communications and spin budgets) and that this proposal is a sign of its desperation.

Application of the Act has become complicated – most ICO decision notices and Tribunal judgments add nuances onto how we should apply exemptions. I love the complication, but I am also very drawn to an idea that was kicked around by others on Twitter that perhaps all of the exemptions should be discarded and everything become subject to a plain public interest test. This would include cost limits – if you ask for a lot of information, if it is in the public interest to provide it, it should be provided. Thanks to relatively recent developments in understanding of ‘vexatious requests’), where a request would be significantly disruptive, the Act allows for a refusal.

The FOI Act is not perfect. But I am still of the generation that compares it to Yes Prime Minister days of secrecy and am thankful to the Campaign for Freedom of Information and other advocates that we can now ask the people who formerly felt like our masters for our own information.

[1] Post legislative scrutiny of the Freedom of Information Act 2000 – Justice Committee Para 241, http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/9602.htm.

[2] ibid

[3] http://www.justice.gov.uk/downloads/publications/policy/moj/gov-resp-justice-comm-foi-act.pdf

[4] https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2014/11/ico-response-to-the-ministry-of-justice-s-announcement-of-their-triennial-review-of-the-information-commissioner-s-office/

Public Functions, Private Companies, and Freedom of Information

Should private companies and charities delivering public services be subject to FOI? (Image c/o danbrady on Flickr.)

The following article was sent in by Erin Ferguson, a qualified librarian and doctoral researcher at the University of Strathclyde Law School. Erin tweets as @fergusonerin.

The recent privatisation of the Royal Mail and scandals involving companies like G4S and Serco have highlighted the ongoing concern over the transfer of public services to the private sector. Privatisation, in this instance defined to include both the sell-off of public assets and the contracting out of public services, has long been a controversial issue. Critics point out that privatisation often fails to meet its objectives, such as improving the quality or reducing the cost of public services. Additionally, there is concern that the delivery of public services is becoming less transparent as private companies are not responsible for responding to requests for information under the Freedom of Information or Freedom of Information (Scotland) Acts.  This post examines these concerns, as well as some of the recent proposals that have been put forward to extend FOI responsibilities.

Both the FOIA and FOISA confer on the public the general right to make requests for information from public bodies, which are listed in Schedule 1 of the Act. The list does not include private companies or charities that are now frequently responsible for the delivery of public serves, and both the Scottish and UK Information Commissioners have expressed concern over the potential for services to become less transparent and accountable. A recent survey by We Own It revealed that the public shares these views, with 88% of respondents indicating that they believe private companies delivering public services should be held to the same transparency requirements as the public sector. This concern is not only about the public’s ability to track the public pound. With 1 in 10 prisons no longer covered by the FOIA, there is concern that reduced transparency will make it difficult to scrutinise the performance of core functions of the state.

The continuing calls to protect transparency have spurred politicians into action. In 2012 Shadow Justice Secretary Sadiq Khan announced Labour’s pledge to extend the FOIA to private contractors if successful in the next election. Labour MP Graeme Morris introduced the Freedom of Information (Private Healthcare Companies) Bill in October 2013. The Public Services (Ownership and User Involvement) Bill, sponsored by Green MP Caroline Lucas, had its first reading in Parliament in January 2014. Among the latter private members’ bill’s aims was to make the contracting process more transparent and to extend FOI responsibilities to private contractors. Earlier this month the House of Commons Committee on Public Accounts published a report, in which it was acknowledged that greater transparency in contracting is needed and recommended that extension of the FOI regime be considered.

Last week, Justice Minister Simon Hughes confirmed plans for upcoming consultations on the FOIA. He announced the intended publication of a revised Code of Practice aimed at introducing FOI requirements into the contracts of private companies performing public functions. However, the coalition government has stopped short of actually extended the FOIA to private companies, a move that has been criticised by the Campaign for Freedom of Information. They argue that contractual disclosure provisions defeat the purpose of the FOIA, which was to provide a statutory right of access to information. Indeed, the plans seem reminiscent of the Code of Practice on Access to Government Information, which was introduced by the Conservative government in 1994 as an alternative to FOI and was subsequently criticised for lacking ‘teeth.’ Whilst the details of the revised Code are still unclear, it is clear that the consultation process will need to consider how to ensure that this is not another missed opportunity to preserve transparency.