New commissioner sets out FOI plans
Martin Rosenbaum Freedom of information specialist 31 August 2016
The UK has already placed its monetary policy in the hands of a Canadian, the Bank of England governor Mark Carney.
Now it's going to fall to another Canadian to decide whether the British government's secrets should indeed remain secret.
She is Elizabeth Denham, who has recently taken up her new role as the UK's information commissioner, who oversees freedom of information (FOI) and data protection.
Previously she was the information commissioner in the Canadian province of British Columbia, where she was particularly noted for a hard-hitting investigation last year into a ministerial official deleting emails covered by an FOI request.
Ms Denham found that records had been wilfully destroyed, emails had not been properly preserved and FOI searches had been negligent.
She rejects the provincial government's criticism that the tone of her report was too harsh. "There was a poor record of government compliance," she says. "You can start off with audits and go as far as you can with more gentle methods, but when there's a serious allegation then it was important that the office took whatever means necessary."
In her first interview since becoming UK commissioner in July, Ms Denham told me about her plans for the FOI side of her new responsibilities.
She takes over from Christopher Graham, who succeeded in making internal processes at the Information Commissioner's Office (ICO) more effective and tackling a huge backlog of complaints that was undermining the organisation's work.
However, some people who worked in Mr Graham's ICO expect Ms Denham to be more outspoken and aggressive in relations with government than he was.
Ms Denham particularly wants to improve the transparency of public services delivered by private companies, as more and more national and local state functions are outsourced. She says she will be raising this issue with ministers.
"Private contractors above a certain threshold for a contract or doing some specific types of work could be included under the FOI Act. The government could do more to include private bodies that are basically doing work on behalf of the public," she says.
The new commissioner also plans to review how her office tackles public authorities with a poor track record of handling FOI requests.
'Not a sign of success'
Currently those that fail to meet legal deadlines for at least 85% of applications may be subject to a period of special monitoring. She suggests that condition, which allows authorities to be late on 15% of requests, is not tough enough.
"I'm going to be looking at that threshold. Looking at this from the outside, most of the public would have the view that more than one in 10 not getting a timely response to a request is not a sign of success."
She will also face the challenge of those major public authorities that have demonstrated persistent failings, such as the Metropolitan Police and the Cabinet Office. "It is something on my radar. I would expect the Cabinet Office to be leaders in FOI."
Ms Denham proclaims her opposition to the government's suggestion that fees should be introduced for those who want to appeal against her office's decisions to the Information Rights Tribunal.
"Introducing new fees could potentially lead to a chill in requesters making use of the appeal process. From a high-level principle stance, I think having no charge for applicants is positive for the entire system."
One issue she pursued consistently in British Columbia was the "duty to document" - an obligation on public agencies to create records of all significant decisions. "If you've got FOI and you want it to work, the right records have to be created in the first place," she argues.
She's especially worried by the growing impact of technology: "What concerns me is that in a digital age when everybody walks around with their devices clutched to their chests or in their pockets, we all become our own records managers."
Ms Denham is unhappy about potential evasion of FOI via the use of private email. "People shouldn't be using private email accounts to conduct government business. If they do, legally it's subject to FOI - however, it frustrates the purposes of FOI from a search perspective."
Following pressure from her, the British Columbia government has enacted a "duty to document" law. So does she think the same change should be implemented in the UK?
"I think the principle is right. I need to understand more about the legal context in the UK to see where such a duty should rest."
The new commissioner is impressed by the UK government's leading international record in producing open data, but she rejects the argument that more proactive publication of information could make the FOI system more or less redundant.
"Government will pick the datasets that are easy to publish or non-controversial and get them out there. Sometimes we get to see shiny open-data projects, and that's great, but a lot of the information the public has a thirst for doesn't always come out. There's no replacement for the right to ask for the information that a citizen wants, and that means the right legislative regime and an independent overseer with teeth."
The main surprise in the seven weeks of her job so far has been the volume of FOI in the UK - both in terms of applications made to public authorities and also complaints to the ICO.
Earlier in her career she was an FOI officer for a regional health authority in Canada, and she is sympathetic to the challenges faced by staff who deal with the public's information requests.
"It's a very tough job to be the internal champion of freedom of information. Really those jobs need to report to a senior executive for it to work effectively, and they need to be given the tools and the resources to do the job."
Conflict of interest
Ms Denham has responded to one controversy that has already arisen by ordering a review of the involvement of her staff in political activities. This was prompted by the recent revelation by the information law blogger Tim Turner that an ICO manager running a team that handles complaints about councils and political parties is actually the Labour leader of Stockport Council.
Mr Turner argued that this meant Alex Ganotis, the team manager involved, who has authorised many ICO decisions, has an unacceptable conflict of interest.
Ms Denham stresses that she has no reason to think any previous decisions have been made improperly, but says: "It is important that we look at our policy on staff engagement in political activities and how the scope of their work is reflected. I do appreciate the importance of our decisions not only being independent and objective, but also being perceived as such."
Although there are naturally significant differences between information law in the UK and Canada, many broader issues (from digital technology to fostering a culture of openness) arise in both countries, and the institutional framework is similar.
"My mandate at the ICO is very much as it was in British Columbia," she says. "So it's about promoting access and privacy rights, educating the public, providing advice to public agencies, investigating complaints and making independent adjudications. Those are very much the same."
"I looked at the role as a combination of being a teacher, a counsellor, a police officer and a decision maker, all wrapped up in one agency."
At the time Elizabeth Denham was applying for the post, the UK's freedom of information law was being reviewed by a government-appointed commission. Contrary to widespread expectations that it would call for restrictions on FOI, the commission generally backed the law as it stands.
"I was concerned that it might lead to recommendations where individuals' FOI rights might be diminished," she says. "I didn't want to come into the UK in an environment where there were recommendations to dilute the very good law in place. I'm very, very pleased that report really was positive about how well FOI is working in the UK and that it was striking the right balance."
Now the future effect of freedom of information in the UK is very much up to her.
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By Freddy Mayhew SEPTEMBER 2, 2016
Newly appointed information commissioner Elizabeth Denham has said she supports the expansion of the Freedom of Information Act to include private companies that provide public services.
Currently only government bodies are subject to the act, which allows any member of the public to request information from them and expect a reply within 20 working days. It is mitigated by the Data Protection Act.
The information commissioner oversees the FoI Act and has the power to enforce compliance if a body fails to respond adequately to an information request. The role was previously held by Christopher Graham.
Denham told the BBC: “Private contractors above a certain threshold for a contract or doing some specific types of work could be included under the FoI Act.
“The government could do more to include private bodies that are basically doing work on behalf of the public.”
She also told the broadcaster that there should be a legal duty on public authorities to record all significant decisions, which would then open up negotiations to FoI requests.
Denham, who was formerly the information commissioner in British Columbia, Canada, has said she wants to be tougher on bodies that fail to respond to FoIs within the legal time limit.
She said: “Looking at this from the outside, most of the public would have the view that more than one in ten not getting a timely response to a request is not a sign of success.”
She also expressed concern over officials attempting to evade their emails being subjected to FoI requests by using personal accounts.
“People shouldn’t be using private email accounts to conduct government business,” she said.
“If they do, legally it’s subject to FoI – however, it frustrates the purposes of FoI from a search perspective.”
The FoI Act came under threat earlier this year, following a government review to mark its tenth anniversary, amid fears new public charges and restrictions would be brought in.
However, after the Society of Editors’ Hands Off FoI backed by Press Gazette, it was announced in March that there would be no legal changes to the act.
A Press Gazette petition urging the act to be left alone gained more than 43,000 signatures.
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