Public Accounts Committee says Network Rail should be subject to FOI Act

A report by the Public Accounts Committee 'Office of Rail Regulation: Regulationg Network Rail's efficiency' published today, calls for the Department for Transport and Office of Rail Regulation to ensure that Network Rail is made subject to the Freedom of Information Act. The report states:

The internal operations of Network Rail are not transparent. We are concerned about Network Rail’s use of ‘compromise agreements’ with departing employees, and that a review by the Regulator has been required to investigate the delayed disclosure by Network Rail of an issue regarding level crossing safety. We are concerned that Network Rail was not able to tell us the total value of compromise agreements it had entered into. The Department and the Regulator should ensure that Network Rail is subject to the same transparency requirements as public bodies, with full application of the provisions of the Freedom of Information Act.

It also says:

Pursuing the issue of transparency, we noted press reports of an internal Railtrack memorandum from 2001 regarding safety at the Elsenham level crossing, an issue which had not been made public until 2006. The matter is currently the subject of review by the Regulator, who will judge whether it was material to the public interest and was withheld deliberately. Network Rail is not currently subject to Freedom of Information legislation, but told us that it would not object to being included within the scope of the Act in future.

Does this mean Network Rail has had a change of heart? David Higgins, who took over as Chief Executive of Network Rail in February 2010, told the Committee he would have no objection to members of the public being able to make FOI requests adding that he had "been used to FOI in the last two jobs I have had".

Before the election both the Conservatives and Liberal Democrats promised Network Rail would be covered by FOI.  In April 2010, the Conservatives published 'Big ideas to give Britain real change in politics', which stated:

A Conservative government will increase the range of publically funded bodies that are subject to scrutiny using Section 5 orders under the Freedom of Information Act. These bodies will include:

• Network Rail

• Northern Rock;

• The Carbon Trust;

• The Energy Saving Trust;

• NHS Confederation (in relation to activities in receipt of public funds);

• Local Government Association; and

• Traffic Penalty Tribunals

Section 5 of the Freedom of Information Act enables Secretaries of State to designate organisations that appear to exercise functions of a public nature to scrutiny under the legislation. We will extend the Freedom of Information Act to these organisations within weeks of the General Election.

But an announcement in January 2011 that the Government would extend the FOI Act to additional bodies did not include Network Rail, a decision which the Campaign for Freedom of Information expressed disappointment about.

See also:
We need a regulator with teeth to force efficiencies at Network Rail, says MPs - The Times, 12 July 2011 (subscription)
Network Rail chief in push for openness - FT, 27 Feb 2011

Campaign's response to Government's plans to extend the FOI Act

The Campaign for Freedom of Information has welcomed the coalition government’s announcement (see earlier post here) that it proposed:

• to extend the FOI Act to a range of regulatory, representative and other bodies 
• to implement the last government’s measures to release old government records after 20 years instead of 30 years
• apply the Act to companies that are jointly owned by more than one public authority.

The Campaign said these were valuable improvements to the FOI regime.

However it pointed out that before the election both the Conservatives and Liberal Democrats had promised that Network Rail would be covered and that the Conservatives’ had also promised to cover Northern Rock. Neither body is being covered. Many other individual bodies, including electoral registration officers and returning officers should also be added, the Campaign said.

It also called for companies providing contracted out functions to be brought under the Act, particularly those relating to health, social services, education and criminal justice and for the Act to be extended to housing associations. The Campaign pointed out that the Scottish Government was proposing to extend the Scottish FOI Act to contractors who build or maintain schools, hospitals and roads (where the contract value is above certain thresholds), to private bodies running prisons or providing prison escort services to contractors running local authority sports or leisure centres and to the Glasgow Housing Association.

The Campaign said it was also unhappy at the decision to implement a more restrictive exemption for senior members of the Royal Family. At present, communications with the Royal Family are exempt, but potentially disclosable on public interest grounds. In future the public interest test will be removed for communications with the monarch and the next two in line to the throne. The Campaign said that where Prince Charles was seeking to actively intervene in policy decisions, his input would be withheld in all circumstances, even if it had played the decisive role.

Finally, the Campaign suggested the proposal to allow the Information Commissioner to serve for only a single 5 year term was a potentially double-edged sword. Limiting appointment to a single term only meant that the Commissioner could not be tempted to comply with the government’s wishes in order to be reappointed. But appointing a new Commissioner every 5 years could be potentially disruptive, as a new Commissioner needed at least a year to master the brief, and the Campaign suggested the Commissioner’s term of appointment should be extended to 6 or 7 years.

Full press release here.

Government plans to extend the FOI Act

The Ministry of Justice has announced plans to extend the scope of the FOI Act. The plans include:

increasing the number of organisations to which FOI requests can be made, bringing in bodies such as the Association of Chief Police Officers, the Financial Services Ombudsman, and higher education admissions body UCAS; and also all companies wholly owned by any number of public authorities

consulting on bringing a range of further bodies which are believed to perform functions of a public nature under the FOI umbrella, including Examination Boards, Harbour Authorities, the Local Government Association and the NHS Confederation

making most public records available at The National Archives and other places of deposit ten years sooner, when they are 20 years old; the package will also reduce the time some types of information - including court records, ministerial correspondence and policy formulation - can be withheld, to 20 years instead of 30

undertaking post legislative scrutiny, to see how well the Act is working in practice and whether there are further changes to be made.

The full press release is here and response issued by the Information Commissioner's Office here. Further comment to follow later today.

Coalition programme for government on FOI and government transparency

'The Coalition: our programme for government' document published this morning (20 May 2010) promises to introduce a Freedom Bill and repeats the commitment to extend the scope of the Freedom of Information Act made in the earlier Coalition Agreement and by the both parties.

A Freedom Bill was promised in the Lib Dem manifesto. A draft Freedom Bill published by the Lib Dems last year contained a number of proposals to strengthen the FOI Act such as removing the ministerial veto. See http://freedom.libdems.org.uk/the-freedom-bill/17-strengthening-freedom-of-information/

The Coalition document also contains the 'right to data' and the proactive publication proposals from the Conservative manifesto. The relevant extracts of the document are:

3. CIVIL LIBERTIES
We will be strong in defence of freedom. The Government believes that the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties. We need to restore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness.

• We will implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion.
• We will introduce a Freedom Bill.
• We will scrap the ID card scheme, the National Identity register and the ContactPoint database, and halt the next generation of biometric passports.
• We will outlaw the finger-printing of children at school without parental permission.
• We will extend the scope of the Freedom of Information Act to provide greater transparency.
• We will adopt the protections of the Scottish model for the DNA database.
• We will protect historic freedoms through the defence of trial by jury.
• We will restore rights to non-violent protest.
• We will review libel laws to protect freedom of speech.
• We will introduce safeguards against the misuse of anti-terrorism legislation.
• We will further regulate CCTV.
• We will end the storage of internet and email records without good reason.
• We will introduce a new mechanism to prevent the proliferation of unnecessary new criminal offences.
• We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.

...

16. GOVERNMENT TRANSPARENCY
The Government believes that we need to throw open the doors of public bodies, to enable the public to hold politicians and public bodies to account. We also recognise that this will help to deliver better value for money in public spending, and help us achieve our aim of cutting the record deficit. Setting government data free will bring significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites.

• We will require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials paid more than the lowest salary permissible in Pay Band 1 of the Senior Civil Service pay scale, and organograms that include all positions in those bodies.
• We will require anyone paid more than the Prime Minister in the centrally funded public sector to have their salary signed off by the Treasury.
• We will regulate lobbying through introducing a statutory register of lobbyists and ensuring greater transparency.
• We will also pursue a detailed agreement on limiting donations and reforming party funding in order to remove big money from politics.
• We will strengthen the powers of Select Committees to scrutinise major public appointments.
• We will introduce new protections for whistleblowers in the public sector.
• We will take steps to open up government procurement and reduce costs; and we will publish government ICT contracts online.
• We will create a level playing field for opensource software and will enable large ICT projects to be split into smaller components.
• We will require full, online disclosure of all central government spending and contracts over £25,000.
• We will create a new ‘right to data’ so that government-held datasets can be requested and used by the public, and then published on a regular basis.
• We will require all councils to publish meeting minutes and local service and performance data.
• We will require all councils to publish items of spending above £500, and to publish contracts and tender documents in full.
• We will ensure that all data published by public bodies is published in an open and standardised format, so that it can be used easily and with minimal cost by third parties.