FOI amendments pressed during Localism Bill

The Campaign for Freedom of Information has been working on amendments to the Localism Bill tabled by Lord Wills, the former Labour FOI minister. The amendments sought to:

1) Require local authority executives and their committees to meet in public, unless regulations specify otherwise. The Localism Bill amends the arrangements for local authority governance, allowing councils to return to the committee system should they choose to do so. For authorities which operate executive arrangements, the Bill allows for new regulations to be made governing the circumstances in which meetings and documents must be open to the public (Clause 11 of the Localism Bill gives effect to Schedule 2 which inserts a new Part 1A into the Local Government Act 2000, and the proposed section 9GA(4) of that new part provides for these regulations to be made). But if the regulations are not made before the new arrangements come into force, the Bill would leave it to executives themselves to decide which of their meetings will be open to the public and which will be held in private (Sections 9G(1) and (2) of the new part 1A). They would be free to hold all their meetings in private, should they choose to do so. The amendment sought to reverse this position, so that in the absence of regulations, all meetings of the executive or its committees would have to be in public.

2) Ensure that future contracts entered into by local authorities would include a ‘freedom of information’ provision. This would stipulate that all information about the performance of the contract which is held by the contractor would be deemed to be held 'on behalf of' the authority for the purpose of the Freedom of Information Act or Environmental Information Regulations. The ‘Community Right to Challenge’ in Chapter 3 of the Localism Bill envisages that a growing proportion of local authorities’ functions will be carried out for it by other bodies. The intention of the amendment is that the public’s rights to information should be the same, whether a particular task is carried out in-house or contracted out.

3) Bring companies that are 50% or more owned by local authorities within the scope of the FOI Act. At present the FOI Act applies to companies that are wholly owned by a single public authority. The Protection of Freedoms Bill would extend that definition to cover a company which is wholly owned by more than one public authority. However, a company which jointly owned by a public authority and some other body, perhaps a private company, is not subject to the FOI Act at all, even where the public authority is the dominant shareholder. The amendment would bring such companies within the Act’s scope.

4) Require local authorities to publish annual statistics on their compliance with the FOI Act.

5) Bring the Housing Ombudsman within the scope of the FOI Act. At present, complaints about social housing matters are dealt with by two different ombudsmen. Complaints about housing associations go to the Housing Ombudsman; complaints about local authority housing go to the Local Government Ombudsman. The Localism Bill proposes that in future a unified complaints system should apply, with both types of complaint going to the Housing Ombudsman.

This transfer of functions, may be accompanied by a strengthening of the Housing Ombudsman’s enforcement powers. The Bill allows the Secretary of State by Order to give the Housing Ombudsman the power to make determinations which have the force of a court order (New paragraph 7C, which would be added to Schedule 2 of the Housing Act 1996 by clause 158 of the Localism Bill). Surprisingly, the Housing Ombudsman is not subject to the Freedom of Information Act. The Localism Bill contains no provision to bring the Ombudsman under the Act, despite the fact that the Housing Ombudsman is to take over important responsibilities from the Local Government Ombudsman, who is subject to the FOI Act. The amendment would redress this anomaly.

The amendments were debated during the second day of the Bill’s committee stage on Thursday 23 June 2011. Responding to the debate, the minister Baroness Hanham gave a reassurance that the Government would make it clear there is a presumption of openess regarding meetings of local authority executives. But she did not support any of the other amendments.

I cannot say anything more than that we are very much in favour of open access to meetings of local authorities, but we recognise that there are occasions when confidential information has to be discussed – for example, information on contracts and members of staff. Meetings have to be closed sometimes, but we will make it clear that there has to be a presumption in favour of openness… 

We do not believe that it is necessary to extend the Freedom of Information Act to those bodies at present with information about contracts with public authorities, which can be requested from them. A local authority can be quizzed about any contract that it has and we are proactively publishing contractual information online.

Amendment 133C would introduce a statutory requirement for the publication of an annual report by every local authority, including the smallest parish councils receiving very low volumes of freedom of information requests. We do not think that this is a burden that should be borne...

Finally, on extending the Freedom of Information Act to cover the Housing Ombudsman, it is worth noting that we are planning to extend the Act to a considerable number of new bodies through legislation and we intend to keep those under review. While I do not say “in”, I do not say “out” at the present time.

In reply, Lord Wills pressed the minister to consider the amendments again in more detail.

I am grateful to the Minister for the spirit in which she engaged with these amendments. However, her response was not quite as welcoming instinctively as I would have hoped, so I ask her to scrutinise the amendments in more detail and perhaps to consult the noble Lord, Lord McNally. I do not say that because I discount any possible burdens put on local authorities or contractors or businesses. As someone who ran a small business in the past, I am deeply conscious of the need to avoid putting burdens on small businesses. These amendments were framed not to place a disproportionate burden on anyone. Perhaps on closer scrutiny that will become apparent.

I am willing to accept any suggestions for amendments and I am sure that the Government would be able to improve the drafting. The key point that I ask the Minister to take away is that, if the Government do not engage with the issues behind these amendments…that will mean, potentially, over time, a significant diminution of transparency in the operation of local authorities and those whom they contract to provide services for them. That is very serious for those who believe in freedom of information. It is in breach of a fundamental tenet of the coalition agreement, which is why I hope that this Government will take it seriously.

Read the full debate on the amendments here (begins Col 1433).

See also:
Localism Bill Explanatory Notes [HL Bill 71] ) (pdf)
Second Marshalled List of Amendments as at 21 June. Lord Wills' amendments were 52A, 133A, 133B, 133C and 181A.

Evidence to Protection of Freedoms Bill Committee

The Information Commissioner and Campaign for Freedom of Information gave oral evidence to the Protection of Freedoms Bill Committee on 24 March 2011. You can watch a recording of the evidence session here.

A note submitted to the Committee setting out the Campaign's views on the Bill is available here. The Information Commissioner's written evidence to the Committee is here.

Campaign welcomes FOI changes in Protection of Freedoms Bill but calls for them to be extended

The Campaign for Freedom of Information has welcomed the changes to the Freedom of Information Act set out in the Protection of Freedoms Bill, published today.

Requiring public authorities to publish data sets proactively, under the ‘publication schemes’ that all authorities are required to have under the Act, was a positive step, the Campaign said. It was also helpful that when applying for datasets applicants would be entitled to specify that they be released in a reusable electronic format. The Campaign said that should prevent authorities deliberately turning a spreadsheet into a pdf, before releasing it, to stop requesters running their own analyses of the spreadsheet itself.

However, the Campaign said the Act’s provisions on the form in which information should be released needed further improvements, to allow requesters to specify that they wanted photocopies of original documents. At present, requesters can only express preference between obtaining information in hard copy or electronic form or inspecting records but are not entitled to specify that they want photocopies of actual correspondence or documents.

The new Bill also seeks to prevent authorities invoking copyright to prevent requesters republishing datasets released under the Act, where the authority is the copyright holder. The Campaign said this was a positive step which should be extended beyond datasets. Authorities frequently insist that requesters apply to them for a copyright license to reproduce information about the authorities’ own policies and performance. It said this was an unnecessary restriction which obstructs the use of information which has no commercial value to the authorities themselves.

The Campaign also welcomed the decision to bring companies that are jointly owned by several public authorities under the Act.

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.

EDM 589: FOI and companies owned by two or more public authorities

An early day motion has been tabled in the House of Commons calling for companies that are wholly owned by two or more public authorities to be brought within the scope of the Freedom of Information Act. Currently, companies that are wholly owned by a single public authority are subject to the Act, but those owned by two or more authorities are not. The motion calls for this loophole to be closed. It also calls for companies to be covered if they are 90% or more publicly owned, as opposed to the current 100% threshold.

The motion has been tabled by Conservative MP Peter Bottomley with the help of John Cross, a volunteer for mysociety's FOI website whatdotheyknow.com.

That this House notes that section 6 of the Freedom of Information Act 2000, with certain exceptions, makes companies wholly owned by the Crown or by a single public authority subject to the Act; further notes that a company wholly owned by two or more public authorities or 95 per cent. owned by a single public authority will be outside the scope of the Freedom of Information Act 2000; and calls for the closure of this loophole and for companies owned 90 per cent. or more by any number of public authorities to be subject to the provisions of the Freedom of Information Act 2000.

The motion is open for other MPs to sign. Please write to your MP and ask them to sign EDM 589 on Freedom of Information and companies owned by two or more public authorities. 22 MPs have already signed - check the list here.