Government Information Quarterly 27 (2010) 312–321

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Government Information Quarterly

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Freedom of information and its impact in the United Kingdom

Patrick BirkinshawProfessor of Public Law, Law School, University of Hull, Hull HU6 7RX, UK

E-mail address: P.J.Birkinshaw@hull.ac.uk.

0740-624X/$ – see front matter © 2010 Elsevier Inc. Adoi:10.1016/j.giq.2010.06.006

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The UK Parliament passed the Freedom of Information Act (FOIA) in November 2000 after 3 years ofgovernment White Papers, consultation papers, and various Bills. The author served as special adviser to theHouse of Commons Select Committee on Public Administration which oversaw the Government proposalsfor legislation and the progress of the Bill into the House of Commons. The FOIA introduced pro-activepublication of information via Publication Schemes, which were introduced on a staggered basis across thepublic sector and on January 1, 2005, rights of individual access were granted to individuals. The Act coverswell over 100,000 public authorities in the UK and includes both Houses of Parliament. There is a power toadd private bodies to the Act's coverage. The Act covers UK, English, Welsh, and Northern Irish publicauthorities. Scotland has its own FOIA which was enacted by the Scottish Parliament in 2002. The paper willexamine the operation of the UK legislation and the role of the Information Commissioner and theInformation Tribunal which deal with complaints of refusal and appeals respectively. The jurisprudence hasbeen voluminous and now the English courts are beginning to hear appeals from the tribunal. The article willexamine the major trends of the legislation and the problems presented by the legislation. The Governmenthas already issued vetoes under the Act overriding the Commissioner's decision to grant access to theCabinet papers relating to the Cabinet discussion on entering into war with Iraq and then on devolution ofpower to Scotland, Northern Ireland, and Wales. The decisions to open up the files on MPs expenses havecaused one of the major constitutional crises in the UK in the last 75 years. As well as examining the way theAct has been interpreted, the author will essay some preliminary analyses of the impact of the Act on therealization of government objectives in passing the Act. The FOIA does sit alongside other legislation allowingaccess to personal files and access to environmental information and the whole information debate is set inthe context of heightened sensitivity and secrecy in time of the war on terror and the state's increasingcapacity to demand, store, and share information. The UK experience of the information debate will beexamined.

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1. Background

The UK came late to the Freedom of Information trend and, afterlengthy proceedings, the Parliament passed the Freedom of InformationAct (FOIA) in November 2000 (Birkinshaw 2005; Birkinshaw 2010a;McDonaldet al., 2009).Matters touchingon thebackgroundandhistoryofFOI in theUK, and theUK's cultureof official secrecy, havebeen the subjectof articles in this journal (Birkinshaw, 1997, 2002). FOIA was a majorconstitutional innovation of Blair's government—a government that willbe remembered for the fundamental constitutional changes to gover-nance in the UK. As well as FOI, there were devolution, the Human RightsAct, and the introduction inOctober 2009 of the SupremeCourt under theConstitutional ReformAct 2005 to replace the Appellate Committee of theHouse of Lords as the court at the apex of the UK's appellate process.

FOIA came into effect in relation to individual requests forinformation on 1 January 2005. The delay of almost four and a half

years after enactment was to allow the public authorities (PAs)covered by the Act – the figure ranges from 100,000 to 115,000 – toacclimatize to the new culture created by FOIA. Central government,local government, and the National Health Service had in fact beencovered by non-statutory codes on disclosure since 1994 and localgovernment in England had been covered by access to informationlaws and open meetings laws commencing in 1908. Before 2005, theAct had come into effect on a staggered basis to introduce pro-activeforms of public disclosure by all public authorities covered by the Act.These are known as publication schemes. Initially, they wereintroduced for central government. Schemes were then introducedfor other areas of the public sector.

Every public authority covered by the FOIA has to have apublication scheme. In spite of their good intent, the schemes havenot been widely used and have more readily resorted to relying uponadvances in Google and other search engines. Publication schemeshave been subject to a major review aimed at simplifying them andmaking them more widely used (OIC, 2009a). The Act covers UKauthorities, England, Wales, and Northern Ireland. Scotland has its

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own law, the Freedom of Information (Scotland) Act 2002, whichcovers Scottish public authorities although the UK Act covers UKbodies operating in Scotland. The Scottish Act is largely modeled onthe UK Act, but there are some important differences.

2. Bodies covered

The UK Act covers well over 100,000 public authorities (PAs)—from the Cabinet Office and Cabinet (the center of British govern-ment) to local medical practices. Every university and school iscovered, every police force and every local authority as well as thewhole of central government including executive agencies, non-departmental public bodies, and named advisory committees. It is themost comprehensive FOI legislation with which I am familiar.Furthermore, there is a very effective central authority which acts asthe enforcer of the legislation, as a champion of the legislation, as apromoter of the information, and as an information point for thepublic. This is the Office of the Information Commissioner (OIC) andthis body is dealt with below (see also http://www.ico.gov.uk/).Scotland has its own Commissioner (OSIC) (http://www.itspublick-nowledge.info/home/ScottishInformationCommissioner.asp).

Although the Act's coverage is comprehensive, some bodies areexcluded from the legislation. The most significant exclusions are theQueen and Royal Family and the security and intelligence bodies: MI5,MI6, and General Communications HQ at Cheltenham—the intelli-gence center. The Serious Organized Crime Agency is also excluded.Some nationalized industries are excluded (most recently, failedbanks) and some included (for example, the Post Office).

Other bodies are included under the Act for some information butare excluded for other purposes. For example, the British BroadcastingCorporation and Channel 4 are excluded for information concerningart, journalism, or literature with the goal of protecting their freedomof speech rights under Art 10 European Convention of Human Rights(the Convention is incorporated into UK law by the Human RightsAct). This has been a highly contentious area with decisions from theHouse of Lords being given on preliminary questions of jurisdiction(Sugar v IC [2009] UKHL 9) to the High Court giving its interpretationon the purposes of art, journalism, or literature.1 When thesubstantive point came before the High Court regarding requests forinformation related to matters concerning “art etc.,” the High Courtgave a much broader interpretation to the provision than theCommissioner or Tribunal had done. The court had given a wideprotection to freedom of speech, but as a result, it excluded manyrequests and complaints about the BBC from the access provisions ofthe Act (BBC v Sugar and IC [2009] EWHC 2349 (Admin) and BBC v IC[2009] EWHC 2348 (Admin)).

The Bank of England is also included under the Act, but itsfunctions in relation to monetary policy, financial operations tomaintain stability, and private banking are excluded—all functionswhich are central to its rescue and stabilizing activity in the bankingcrisis. It should be noted that the Treasury, the Department for Trade,and the Financial Services Authority are not excluded, but wideexemptions affect their financial operations (below).

Schedule 1of FOIA identifies those bodies that are included in theAct. If not included, a body is excluded. Furthermore, the Secretary ofState may designate a private body as a public authority for thepurposes of the Act by a statutory order. This specifically includessituations where a private body is performing public functions or isproviding public services under a contract. The government launcheda recent consultation on designation and the outcome has beenannounced in Parliament (Hansard, 2009). It has also announced the

1 Sugar v BBC [2009] UKHL 9. This case dealt with preliminary points of jurisdictionand procedure. The Law Lords by majority gave a very broad interpretation toprovisions of FOIA to allow the Information Commissioner and Tribunal to takejurisdiction and hear appeals on questions concerning their own jurisdiction.

first bodies that will be designated as public authorities for FOIA—butit must be said that all four are heavily colored with public authority.The real breakthrough will occur when private companies performingpublic functions are designated; when they act, as we say, as“surrogates for the state”. Privatization and off-loading from thepublic sector to private companies has been a regular feature ofgovernance in the UK for 30 years. The incoming coalition govern-ment has voiced its approval of FOIA and has also identified somebodies as suitable for designation, including, for example, a bank thatwas nationalized in 2007.

3. Requests

The Acts give a presumptive right of access to information held by aPA. The FOIA gives a right to “information” – “recorded information” –not specifically to documents, but where access to information is mosteasily achieved by giving a document, the document should be given. Aspecific request may be made for documents which may be inspectedin an authority if not sent. PAs are obligated to inform requesterswhether they hold information of the type requested. This is known asthe “duty to confirm or deny” (DTCD). Where the effect of confirmingor denying that the PA holds information may lead to the release ofexempt information, the DTCDmay be overridden by the operation ofthe “neither confirm nor deny' provision (NCND). If they do hold thatinformation and the NCND does not apply, they must disclose it,subject to exemptions. In the vast majority of requests the NCNDprovision does not apply, although the NCDC provision potentiallyapplies to virtually all exemptions and is not confined to highlysensitive areas.

The mechanics of the Act is that a requester – the designation ofwhich is not confined to a British citizen or resident in the UK – appliesto a PA for information as specified. Requests must be in writing, and aname and address must be supplied for correspondence. The PA mayask for additional information to clarify the request. Advice andassistance have to be provided by the PA; a code of practice pertainingto such correspondence is published by government on good practice(Department for Constitutional Affairs, 2004). The guidance alsocovers requests concerning third party information and notification ofthose parties of such requests. The provisions in this respect aresomewhat anemic, particularly when compared with those inexistence in other jurisdictions. Additional guidance is also publishedby the Ministry of Justice and OIC. After any clarification, the PA isgiven 20 working days to respond—this may be extended for partic-ular bodies; for example, the National Archives have 30 days. Fees upto £450 are not charged (£600 in the case of central governmentdepartments and Parliament), although “disbursements” such asphotocopying and postage may be charged. Labor costs are calculatedat £25 per hour. Decisions on the public interest may take longer (seebelow). Time taken to determine the public interest is not included inthe calculation of fees.

4. Refusals

If the PA refuses to disclose the information the requester may askfor a second opinion from a higher ranking official. If this confirmsrefusal, the requester may apply to the Information Commissioner(IC). The IC does not charge for his services. He has full powers of entryand investigation after obtaining judicial warrant and has access toany papers he requires although in practice there may be limitationsonwhere he examines these. Memoranda of understanding set out thepractice. This is a purely informal understanding without legal basis.There are several informal practices associated with the operation ofthe Act including the consultation undertaking in relation to the veto(below). One further practice was the development of a ClearingHouse in the Ministry of Justice (http://www.justice.gov.uk/

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guidance/foi-procedural-referring.htm) to act as a focal point forsensitive or difficult requests (Ministry of Justice, 2008).

5. Enforcement

The IC may issue a decision notice, an enforcement notice, or aninformation notice requiring information. The IC's decisions andinvestigations are backed up by the contempt of court powers of theHigh Court—these are considerable and include fines, even imprison-ment in very serious cases. Any refusal against the notices of the IC orfalse statements by officials may be treated as contempt. Anyalterations made to requested information, apart from that whichwas going to be made irrespective of a request, is a criminal offense.

From the IC's decision there are appeals to the InformationTribunal (IT) by either party. Appeals may be based on very widegrounds, including the merits of a decision. The IT may award costsagainst a party where they act with vexation, though this is very rare.Parties usually pay their own costs. Tribunals are meant to operateinformally so parties should be able to conduct their own case, butlegal representation is becoming more common for PAs and, forexample, newspapers. Scotland does not have an IT; a requester or PAwould have to challenge the SIC's decision by a judicial review in thecourts. From the IT under the UK legislation, there is an appeal on apoint of law to the High Court (recently changed to an appeal to theUpper Tribunal), Court of Appeal, and – since October 2009 – the newSupreme Court. This is much narrower than the grounds of appealfrom the IC to the Tribunal. This means that the courts cannot makejudgment calls on merits, only on legality (ECGD v FOE [2008] EWHC638 (Admin)).

6. Exemptions

At first blush, there are 23 exemptions, but some of these containseveral exemptions so the actual number of exemptions is larger.Exemptions may be of two types: absolute or qualified (ordinary).There were eight absolute exemptions, but an additional exemptionwas added in 2010; all the others are ordinary. Exemptions may beexpressed on a class basis – all documents within the class are exempt– or on a contents basis. The latter means that where disclosure wouldcause damage or prejudice of the type specified in the exemption, theinformation is exempt.

Ordinary exemptions are subject to a public interest test. Eventhough an exemption is properly claimed, is there nonetheless apublic interest in disclosure that overrides the exemption? Although Isay “override”, the Bill was changed in the course of its Parliamentaryproceedings so that where the balance of the public interest inretention or secrecy was equal, disclosure would prevail. The publicinterest also operates in relation to the NCND. If the PA decides neitherto confirm nor deny whether it possesses the information asexplained above, in relation to an ordinary exemption, it has todecide whether a public interest overrides the operation of NCND. Noperiod is specified for assessing the public interest, but the IC hasstated that an additional 20 working days would be reasonable.

Absolute exemptions do not allow for the exercise of the publicinterest test. If an exemption is properly claimed and it is absolutethere is no discretion to disclose. There are nine of these exemptions.In most cases they are absolute for simple and non-controversialreasons. The information may be otherwise available, for example,under another statutory provision, such as one relating to consumerinformation rights. The information must be available whether forcharge or not. Informationmay be exempt because there is somethingpreventing the disclosure of the information, such as an actionableduty of confidence or the information relates to personal data whichhas its own legislation, the Data Protection Act 1998, under whichapplications for access may be made or which governs disclosuresunder FOIA (below). The relationship here is complex.

There may be a legal prohibition stopping disclosure – and theseare common in legislation regulating markets such as financialservices or enterprise – and whether the prohibition is in domesticor EU law. Information held by courts is subject to an absoluteexemption because there are provisions allowing applications to bemade to the courts for documents under both civil and criminaljurisdictions. Constitutional sensitivities are recognized so thatdisclosure undermining Parliamentary Privilege is subject to anabsolute exemption—though this would not protect disclosure ofinformation about an MP's expenses which I address below. The twocontroversial absolute exemptions relate to information about thesecurity and intelligence services held by PAs covered by the FOIA andcommunications with the sovereign or the first and second in line tothe throne. The services themselves as well as the royal family areexcluded, but information from them or about them held by officessuch as the Ministry of Justice, the Home Office, or other PA isabsolutely exempt. It might be added that information about the royalfamily held by PAs was not afforded an absolute exemption and thishad become an item of controversy. Such information may well besubject to Data Protection Act requirements.

The exemptions are set out below according to their sectionnumber and are only listed without explanation or analysis.

21. Information accessible to applicant by other means.22. Information intended for future publication.23. Information supplied by, or relating to, bodies dealing with

security matters.24. National security.25. Certificates under ss.23 and 24: supplementary provisions.26. Defense.27. International relations.28. Relations within the United Kingdom.29. The economy.30. Investigations and proceedings conducted by public authorities.31. Law enforcement.32. Court records, etc.33. Audit functions.34. Parliamentary privilege.35. Formulation of government policy, etc.36. Prejudice to effective conduct of public affairs—a very broad

exemption.37. Communications with Her Majesty, etc., and honors (The

Constitutional Reform and Governance Act of 2010 made thisexemption absolute where in involves communications withthe Queen, or first or second heirs to the throne held by a PA)

38. Health and safety39. Environmental information40. Personal information41. Information provided in confidence42. Legal professional privilege43. Commercial interests44. Prohibitions on disclosure.

7. The veto

In relation to ordinary exemptions, where the public interest isdetermined by the Information Commissioner to be in favor ofdisclosure, s.53 FOIA allows the Secretary of State to issue a vetoeffectively overriding the decision by the IC. The same applies to PIdecisions involving the NCND. In 5 years there have been two vetoes.Early in 2009, the Minister for Justice issued a veto in relation to arequest for the minutes of the Cabinet meeting discussing theinitiation of war in Iraq and the Attorney General's legal advice. TheJustice Secretary believed that it was a matter of the highestconstitutional importance that discussions in Cabinet should remainprotected from disclosure to protect the integrity of the Cabinet and

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collective responsibility of government. However, both the Commis-sioner and Tribunal had ruled in favor of disclosure under s.35(Ministry of Justice, 2009a).

Many years ago, and long before the FOIA, the English courts hadrefused to give the protection of confidentiality in absolute terms toCabinet discussions. Such discussions and minister/minister/civilservant correspondence were protected by confidentiality but suchconfidentiality was subject to the passage of time (Att Gen v J. Cape[1975] 3 All ER 484). The courts have ruled that the overriding test tostop disclosure is definable as damage to the public interest which isnot the same thing as damage to the government (Att Gen v GuardianNewspapers No 2 [1988] 3 All ER 545). In December 2009, a secondveto was issued again in relation to Cabinet minutes discussingdevolution- the date of the meeting was 1997. (OIC, 2009b; OIC,2010). Under the Act, the decision on a veto is that of the JusticeSecretary (Lord Chancellor), but as seen above the Justice Secretary“consults” Cabinet colleagues. The only means of challenging a veto isby judicial review. In the first veto, the appeal was heard by the ITwhich ruled against the Minister for Justice but no appeal was madeby the Minister to the courts. In the second case, the veto was issuedbefore the IT heard the case.

8. Use of the Act

The Information Tribunal has described the FOIA as creating a“fundamental right to information”. “Fundamental rights” is not thetraditional language of legal discourse in the UK. In the first four and ahalf years of operation, the IChas stated thatupuntilMay2009 therehadbeen 500,000 FOI requests, 11,500 complaints to the IC, 1,225 DecisionNotices, and 415 appeals to the Information Tribunal (OIC, 2008).2

The IC's annual report for 2008–2009 (OIC, 2009c) states that in2008–2009, the OIC received 3,100 complaints about FOI. 3,019 caseswere closed ie completed. Of the 3,100 received, 33% were not closedby 31 March 2009. On that date, 8% of the case load had been underinvestigation for 2 years. Of those received, 49% were informallyresolved, 24% were ineligible, in 10% a decision notice (DN) wasserved, in 9% there was no internal review by the PA, in 6% cases werere-opened, and in 2% complaints were withdrawn. Of 296 DNs servedunder FOI and Environmental Information Regulations (EIR) (seebelow), the complaint was upheld in 105 cases, partly upheld in 153,and not upheld in 38.

From January 2005, there had been 322 appeals to the IT. In 54% ofthese, the IC's decision was upheld. In 30%, the IC's decision wasoverturned or varied. Fifteen percent of appeals were withdrawn.Sixty-seven percent of the appealing parties were PAs (OIC 2009c,p. 33).

In the 2008Ministry of Justice fourth annual report on the Freedomof Information Act 2000 (Ministry of Justice, 2009b), it is recorded thatthere were 34, 950 requests under FOIA and EIRs (below) to centralgovernment departments of state and monitored bodies (of centralgovernment) in 2008. These numbered 43 bodies in total, althoughsome will have 50,000 or so employees. The FOIA covers 100,000–115,000 bodies.

These requests are described as “non-routine” requests. These arerequests where it was possible to give a substantive decision onwhether or not to release information. Eighty-two percent of theserequests received a response within the 20-day working period(30 days for the National Archives). Six percent of these requests weresubject to a public interest extension. Sixty percent of resolvablerequests were granted in full; 13% were partially withheld; 21%resulted in information being fully withheld. Fees were levied in 2% ofthe 34,950 requests—98% of these related to National Archives

2 The overall figures came from an OIC conference Private Data, Open Government:Questions of Information QEII Centre 13 May 2009. See OIC (2008).

records. The average fee was £67 (£35,339 was received in total).6,715 requests received in the year were refused in full or in part.

The exemptions most commonly relied upon were s.40 (personalinformation), s.30 (investigations and proceedings conducted bypublic authorities), and s.41 (information provided in confidence).Central departments were more likely to use s.35 (formulation ofgovernment policy, etc.) and s.36 (prejudice to effective conduct ofpublic affairs) and s.23 (information supplied by or relating to bodiesdealing with security matters). 959 internal reviews were requestedacross all monitored bodies; 153 appeals weremade to the OIC (222 in2007).

The report has details on performance tables including theduration of public interest test extensions and the volume of referralsto the Clearing House (CH) for all departments and monitored bodies.The CH changed its referral practice and focused only on “the mostcomplex and challenging cases” resulting in a significant drop inreferrals from previous years. Nine hundred and eighty-three caseswere so referred in 2008 (Ministry of Justice 2008). The MoJ alsopublishes statistics on FOIA implementation by central governmenton a quarterly basis.

For the vast majority of these requests, requesters now have alargely free and effective information service where before there wasgrace and favor; sometimes, perhaps a very benevolent grace andfavor, but one dependent on discretion and length of foot. With theincrease in numbers, there comes an attendant delay in IC investiga-tions, a matter about which the press have complained because of thedamage to “hot news items” (Hayes, 2009). There have also beencomplaints about the insistence on internal review and the lengthyappeal processes.

Research to be published in 2010 identified the requesters in thefollowing order (greatest number first): individuals, journalists,campaign groups, charities, MPs, and finally business (Hazell et al.,2010). There is little evidence as yet of FOI brokers emerging, althoughthere is a flourishing market in personal information (below).

9. Other access laws

9.1. Data Protection Act

In addition to the FOI legislation, there is the Data Protection Act1998 (DPA) implementing ECDirective 45/1995. This Act is concernedwith the processing (i.e. using) of personal data (information) aboutindividuals and setting safeguards for such processing. Subject toexemptions, it provides a system for access to data held by datacontrollers (DCs) and independent regulation of DCs. The legislationcovers the UK. The DPA covers all DCs whether private or publicbodies. DCs have to notify the IC that they hold personal data, theidentity of the subject, the purposes for holding data, the recipients ofsuch data, and other matters. This information is kept on a publiclyavailable register by the IC. In 2008–2009, there were 317,165 DCs onthe register. In 2009, new registration fees were introduced for largerorganizations. Failure to notify the IC is a criminal offense. Tenorganizations were convicted for failing to register in 2008–2009,although the record shows 12 (OIC 2009c, p. 45).

The basic provision of DPA is that data that are held electronicallyor in “structured filing systems” are covered. The latter is defined as asystem which is mechanical (paper) and which has such detailedcross referencing in operation that a stranger coming to thesystem could operate it very quickly. The English Court of Appealhas given narrow definitions to personal data and structured filingsystems so that a considerable amount of personal information willnot be covered by DPA requirements (Durant v FSA [2003] EWCA Civ1746).

The IC also has responsibility for this legislation, but the IC is not ageneral formal ombudsman figure for the DPA as in the case of FOIA.The IC can assist in negotiating an outcome and can conduct

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“assessments” of compliance with the DPA upon request of the datasubject. The basic thrust of the DPA is that data subjects shouldenforce their rights in the courts. In the UK, the IT deals with appealsfrom the IC's decision in relation to enforcement notices againstcontrollers. The IT has power to sit in all countries of the UK. The ITalso deals with appeals concerning the Privacy and ElectronicCommunications Regulations 2003.

Information constituting personal data will be governed by theDPA. Basically, requests about one's own data (data subject) are madeunder the DPA. Requests about another's personal data are dealt withunder FOIA or the Environmental Information Regulations (below)subject to relevant Data Protection Principles. These principlesprovide legal protection in the use of personal data—processingmust be fair, lawful, up to date, subject to specified conditions, forspecified purposes, subject to adequate security, and so on. Additionalsafeguards apply to sensitive personal data defined in s.2 DPA. Theseare data consisting of information such as racial or ethnic origins ofdata subjects, political opinions, religious beliefs, membership of tradeunions, physical or mental health, sexual life, commission of, orallegations, of offenses, or criminal proceedings.

In this latter category, the Court of Appeal in 2009 overruled the ICand IT, both of which had decided that minor convictions committedby young persons many years previously should be erased from thedata held by police forces. Convictions may become “spent”, but thereare numerous exceptions to this where information is required forspecific purposes including employment. In the cases in question, theCourt ruled that keeping the data for a period of 25 years was notoverlong or excessive and would therefore be subject to disclosureprovisions in relation to the Criminal Records Bureau and prospectiveemployers. One potential consequence of this ruling is that theconviction or reprimand for common assault or minor acts ofshoplifting (stealing from a shop) by a teenager could jeopardizetheir employment prospects for life (Humberside Chief Constable ofPolice etc. v Information Commissioner [2009] EWCA Civ 1079).

Exemptions to DPA are varied. For example, data may be exemptfrom the DPA's provisions so that access to data by the data subjectmay be denied, or disclosure may be made to parties not initiallyidentified as recipients or for purposes not initially identified aslegitimate purposes. Generally speaking, national security has thewidest form of exemption.

Although the Act covers both the private and public sectors, FOIAadded to the categories of data covered by DPA requirements held bypublic authorities; in effect, PAs are under duties covering a muchbroader range of personal data – unstructured paper files – than areprivate holders or “controllers' of data. The DPA also brought withinits remit pre-existing personal information known as “accessiblerecords” covering health records, school records, and social servicesand public housing records. The interrelationship between FOIA andDPA is intricate, complex, and technical. The interrelationshipbetween the two has led to attempts to use the DPA to preventaccess under FOIA. This has also been a problemwith EU legislation aswe shall see below.

9.1.1. Enforcement of data protection and privacy concernsIt has been demonstrated how the OIC is not an ombudsman with

power to issue DNs under the DPA. However the OIC does receivecomplaints on DP – 25,509 in 2008–2009 (OIC, 2009c, 37) – as well asrequests for information. Much of the case work is resolved at “firstcontact”. Cases are resolved by offering advice and guidance (44%),ineligible (27%), finding of a likely breach (16%), or finding of anunlikely breach (8%). Individuals may request that the IC audit a DCfor breaches of the DPP as we have seen.

Until recently, DP was given a low priority by government. Manysensational events have attended the national scheme for identity cardsin the Identity Cards Act 2006 (to be repealed by the new government),police retention of data, national databases for children and those in

contact with them, electronic health databases, wholesale data transferbetween DCs, and unlawful commercial sale of data including aconstruction industry secret database to identify and blacklist tradeunionists. Twenty-five million child benefit records were lost followedby a frightening catalog of loss of government and commercialconfidential personal data leading to reforms but not to all of thosereforms suggested by theOIC or House of Lords Constitution Committee(House of Lords. Constitution Committee,2009). Enforcement Notices(EN) for non-compliance with the Act have been served on many PAsand lawfirms and accountants. Following losses of data sinceNovember2007, the IC has recorded all instances of data security breaches. In2008–2009, 319 breaches were recorded. Action was taken in 12 cases:thismay include a range of action from an undertaking to the issue of anEN. ENs may be served where there is a breach of the DPA—in 2008–2009, 6 were issued to both public and private bodies. These areappealable to the IT. Formal undertakings may be given not to breachtheDPA in lieu of an EN. In 2007, the PrimeMinister gave the OIC powerto spot check government departments. There were three ENs issuedunder the Privacy and Electronic Communications Regulations.

One crucial concern has been data sharing. A Data Sharing Reviewwas conducted by the IC for the Ministry of Justice (Thomas &Walport,2008). This review recommended that there should be SeniorInformation Risk Managers in all departments; this recommendationemphasized that dataminimization, safeguards in retention and quality,and cleansing are to be senior management responsibilities. TheCriminal Justice and Immigration Act 2008 introduced the power ofimposing custodial sentences by the courts for unlawfully obtaining,buying, and selling personal data. It provided powers for the IC toimpose monetary penalties for serious breaches of the Data ProtectionPrinciples which occur “knowingly” or “recklessly”. The fines related tothese sentences can amount to £500,000. In addition, the Coroners andJustice Act 2009 Part 8 provides powers for the IC to inspect theprocessingof personal information.However, this only covers the publicsector and not the private sector DCs. The non inclusion of the privatesector has been criticised by the European Commission. A code ofpractice has to be produced by the IC for inspections and also for datasharing, and this latter has to be approved by the Secretary of State andParliament. In 2009, the Home Secretary ruled out a single governmentrundatabase of communicationsdata. In 2010, reformswere introducedin relation to the retention of biometric data following a judgment of theEuropean Court of Human Rights, which had found existing Englishpractices in breach of the European Convention onHuman Rights (S andMarper v United Kingdom [2008] ECHR 1581).

9.2. Environmental Information Regulations (EIRs)

Additionally, there are Environmental Information Regulations2004 SI 2004/3391 (EIRs), as part of the implementation of the EUCouncil Directive 2003/4 EC. The Directive followed the AarhusConvention (UN Economic Commission for Europe, 1998). Separateregulations implement this Directive in Scotland. The EIRs use the pre-existing framework established under the FOIA so the mechanismsexplained above are more or less identical. These involve the IC and ITas explained previously. More or less, the EIRs apply to publicauthorities as they would under FOIA, but they also apply to bodiesunder the “control” of public authorities thereby opening the way forcoverage of private companies. Some decisions of the IT have taken anarrow interpretation of bodies that are covered (EA/2006/0061-62Network Rail Ltd v IC and NRI Ltd, FoE etc.). The onus is on the PA (noton the requester) to identify in a request whether the subject isenvironmental information –which is defined very broadly – or otherinformation, and to determine which regime applies—FOIA or EIR. PAsfrequently make mistakes in their identification/classification ofinformation.

Only the FOIA is a purely domestic legal provision; other measuresflow from the UK's membership of the European Union, so those laws

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have to be interpreted in the light of EU jurisprudence. The EnglishCourts have provided some narrow interpretations of the Act'sprovisions with regard to data protection, and the EuropeanCommission has criticized the UK for not implementing the Directivecorrectly.

The Ministry of Justice (formerly called the Lord Chancellor'sDepartment and then the Department for Constitutional Affairs) hasresponsibility for FOIA and DPA, leaving responsibility for the EIRsunder the jurisdiction of the Department for the Environment, Foodand Rural Affairs. All three regimes fall under the OIC and OSIC asexplained.

The Office of Public Sector Information deals with re-use ofinformation and government information technology concerns. Ielaborate upon this below.

9.3. Public Records Acts

The Public Records Acts 1958 and 1967 set out the duties topublish official documents held by National Archives after they are30 years old. Some records may be “closed” for longer. Those over30 years old are referred to in FOIA as “historical records”. Scotland,Wales and Northern Ireland have their own provisions for publicrecords. Publication takes place at the beginning of the year, usuallywith a fanfare of publicity from the press. The legislation is dovetailedwith FOIA to be consistent with FOIA. No timescales apply to FOIAwith regard to historical records; exemptions may be applicable bothbefore the end of the 30-year period and after, although FOIA specifiescertain exemptions that do not apply after 30 years. In July 2009, theGovernment announced proposals to reduce the 30-year period to20 years following a government commissioned review by Lord Dacre,the editor of a national newspaper. The review also made otherrecommendations which may result in the special treatment ofCabinet documents (Dacre, 2009). The 20-year period was introducedinto legislation in 2010, but no changes were made to the exemptionfor Cabinet documents.

10. Overview

This is the public sector side of access to information, although DPcovers both public and private sectors. FOIA amended DPA to give agreater right of access to unstructured and “loose” files held by PAs.There are difficulties in some of these regimes—DPA is nothing lessthan tortuous, but the underlying framework is reasonably clear andin the hands of one centralized office, OIC. The role and performanceof the OIC have been impressive and it has assisted citizens, the mediaand press, consumers, interest groups, and others. The IC heads arobust regime at the forefront of FOI practice. FOI has an easy,accessible, and inexpensive enforcement mechanism. FOI stands incomplete contrast to specific statutory regimes established to assistconsumers in relation to information rights. Rarely do these giverights to individuals. Enforcement is accomplished by way of criminallaw and prosecution by a public authority. FOI is rights based, and in apaternalistic culture of governance such as the UK, it amounts to asignificant break with our heritage.

I will direct attention to the more famous cases concerning FOI in amoment. Many of the requests for information raise only points ofinterest or importance for the requester. Recently, we have witnessedPAsmaking amore pro-active use of information to inform the public ofinformation that it has collected about service providers. Much of thisinformation would be available under FOIA and concerns informationheld by PAs on, for example, decisions to prosecute restaurants, foodoutlets, or producers for breaches of regulations, warnings, and so on,where the information is not otherwise available. Access will be subjectto any exemptions and the public interest test. Third parties should beconsultedwhere requests aremade for information concerning them. A

publicly available database is “Scores on the Doors” covering foodoutlets (http://www.food.gov.uk/safereating/hyg/scoresonthedoors/).

Apart possibly from designating bodies who are engaged in theprovision of public services such as major utilities, or bodies engagedon a widespread basis in charitable and voluntary work in areas ofsocial welfare, there would bewidespread opposition from the privatesector to an extension of FOI laws to that sector. Utilities, etc., may alsowish to resist being covered by FOIA. The opposition would be basedon familiar arguments of unjustified state intervention, damage toprofitability, undermining competitive capability, and producing anuneven playing field especially in relation to overseas competitors. Inthe absence of EU-wide initiatives, those within the business sectorwould maintain: why should the UK business sector be hampered bylegal requirements affecting only British industry? Be that as it may,an extension of FOI into the private realm is a topic of growingimportance and legal models allowing for this already exist in othercountries, including South Africa.

11. The Information Commissioner and Tribunal

The IC (http://www.ico.gov.uk/) has several roles including thatof issuing DNs. The IC is a champion of the legislation; an adviser ongood practice; a publisher of advice, guidance, and decisions; and anenforcer. The high profile cases of constitutional significance includethe MPs' expenses saga where MPs had abused the system forclaiming accommodation and other expenses. The judicial decision onappeal from the IT led to wider disclosure than originally ordered bythe IC. Two ministers resigned and the Speaker of the House ofCommons resigned in disgrace—the first time this had occurred forover three centuries! Many MPs decided not to seek re-selection ascandidates for the next Parliament in 2010. There was a disclosureinvolving national budgets and tax reform concerning pensions towhich the government objected. There was also disclosure of agreedterms of the Attorney General's advice on the legality of the war inIraq after leaks. In a case involving the Department for Education andSkills, information on civil service advice to Ministers was requested.This was refused on the grounds that it would undermine civil serviceneutrality. Such neutrality is a core feature in the UK constitutionbecause the civil service is “permanent” serving different govern-ments independently and disinterestedly. Disclosure was ordered andthe alleged danger has not materialized. Where policy remainsunresolved, information has not been released.

Disclosure was allowed by the Labor Government of the so-called“Black Wednesday” papers concerning a Conservative governmentand the financial catastrophe of 1992 when the UK had to leave theExchange Rate Mechanism of the European Community. Disclosureoccurred shortly before the 2005 UK general election promptingallegations of use of FOI for party political purposes. There weredisclosures over a period of 4 years relating to the Iraq Weapons ofMass Destruction dossier. Disclosures have also been made relating togovernment contracts, the BBC, commercial interests of bodiesdealing with public authorities. There have been disclosures of PrinceCharles' memos to government Ministers. Cabinet minutes have beenthe subject of vetoes as explained. Information on governmentmeetings with lobbyists has been disclosed. In the now worldwidefamous case concerning research reports by scientists at theUniversity of East Anglia on global warming just before the 2009Copenhagen summit, there had been damaging leaks of emailsbetween the scientists following FOI and EIR requests and UKuniversities have been frequent recipients of FOI requests. In manycases they have reacted over-defensively.

There is nothing to suggest favoritism to PAs in the decisions of theIC or IT. And, in many respects, their decisions have been more robustthan government would like. This is certainly so in relation to the useof the public interest override in relation to s.35 and s.36. Theseexemptions protect, among other things, collective responsibility of

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government and the effective working of government and other PAs.The IC and IT have both maintained that civil service advisers have toaccept that they now operate in a FOI culture and they must expectgreater openness and transparency accompanying their advice,although timing is crucial. As one would imagine there has been areluctance to question judgments on national security and interna-tional and diplomatic relations although there have been PIdisclosures in the latter case.

One interesting development has been in the interface betweenFOI and DPA. DPA was widely invoked to attempt to prevent access todocuments which contained the names of individuals, usually officialsbut sometimes lobbyists and government interlocutors. There was afear that a coach and horses would be driven through the FOIA. Innumerous cases, the IC and IT have ruled that under Schedule 2 of theDPA, the legitimate interests of the requester may allow disclosuredepending on the facts to be disclosed. There has been awillingness toprotect the identity of junior officials. Also of interest is that under s.41on confidentiality although protection of confidentiality provides anabsolute exemption, the law of confidentiality itself provides adefense against breaches of confidentiality which are affected in thepublic interest. There is no confidence in an iniquity runs the old legalmaxim. Unlike FOIA, the onus on proving the PI in confidentiality liesupon the requester.

12. The courts and FOIA

The courts generally have been welcoming of the new era ofopenness that FOIA has ushered in. As one judge expressed the pointin the first FOI case to come to the High Court:

The FOIA is, in its way, an Act of an entirely new kind … clearly itmust have major underpinning by reference to the conceptsenshrined in Article 10 of the European Convention on HumanRights with regard to the freedom to receive and impartinformation: although it was rightly acknowledged before methat the FOIA goes very much further than Article 10 would ofitself require. In very broad terms, the FOIA would seemprincipally to be directed at achieving openness in requiringinformation to be revealed by defined public authorities but witha necessary acknowledgment of the need for confidentiality orprivacy when disclosure is not in the public interest.(BBC v Sugar [2007] EWHC 905 (Admin) Davis J).

The Court of Appeal has ruled that intellectual property rights inand of themselves are not exemptions to access—in this case underthe EIR (Office of Communications v IC [2009] EWCA Civ 90. The casehas been referred to the European Court of Justice for a preliminaryruling because EU law (EIR) is involved). There has been someconfusion and obfuscation on this point as parties have sought to raisecopyright and other legal intellectual property principles in anattempt to prevent access. This confuses access and use. Only specifiedexemptions can prevent access. The court further ruled that decisionson the public interest have to be determined cumulatively and not assingle issue determinations. Although the appeal is by way of a pointof law, inadequate consideration and weighing of factors involved inassessing the exemption for legal professional privilege (law officer'sadvice to government) will lead to a reversal of a decision to discloseby the IT (Dept BERR v D.O'Brien and IC [2009] EWHC 164 (QB)).

In several cases, the Administrative Court has ruled that the IT andIC's interpretation of artistic, journalistic, or literary purposes forholding information in relation to the BBC was wrong (above). The ICand IT applied a test based on proportionality: if the artistic, etc.,features were determined to be incidental and not preponderant, theinformation was not excluded and was only subject to exemptions.The Court ruled that on a true construction, FOIA did not contain this

test so the decision was wrong according to the law (BBC v Sugar andIC [2009] EWHC 2349 (Admin). On one level, this protects freedom ofspeech and artistic integrity. On another, it excludes many financialdecisions from FOIA concerning the BBC when the latter has beenaccused of extravagance in relation to public money.

13. The impact of FOIA

The total cost of FOIA across the public sector was estimated at £35million in 2006/07. The OIC budget for 2008–2009 was £5.5 millionwith no increase from the previous year despite a 15% increase in caseload. In the 2008–2009 annual report (OIC 2009c, pp. 12–13), thereport from which this figure came, the IC reported OIC surveysshowing that the numbers of respondents agreeing with thestatement that FOI “increases public knowledge of what PAs do”increased from 54% in 2004 to 84% in 2008. Those agreeing that FOI“increases confidence in PAs' increased to 75% from 51%.

The only detailed study of the impact of UK FOIA to date has comefrom colleagues at the Constitution Unit, University College, London(Hazell et al., 2010). This study, which took place over 2 years and willbe published in 2010, sought to assess the achievement of thelegislation and the extent of the realization of objectives set out ingovernment statements, reports, and publications. The objectivesbehind FOIA were identified by this study as: improving the quality ofgovernment decision making, improving public understanding ofdecision making, increasing transparency and openness, increasingaccountability, increasing public participation, and increasing publictrust. Other objectives that were raised by other studies includedcontrolling corruption and having an informed citizenry.

The CU study found that in relation to increased transparency andaccountability, there had been a meeting of objectives. However, theevidence in relation to the other objectiveswas not as positive, althoughit is in many respects anecdotal. For instance, in relation to betterdecision making, many officials were doubtful of the benefits of FOI inguaranteeing the keeping of better records. However, in the UK, officialswork in the context of Ombudsman investigations and numerousinvestigations reveal that not having adequate records' bases fordecisions ismaladministration and culpable. Itwouldmeetwith judicialcensure before the courts if litigation became an issue. The study foundthat the claims for the benefits of FOI had been over-exaggerated.

In relation to increased public understanding of decision making,the FOI seemed to have little effect although there was evidence of FOIbeing helpful in political campaigns. The popularity of FOI with thepress has increased considerably, even with the conservative press,although the press has become critical of delays. FOI in the UK has alsobeen contemporaneous with increased resort to and popularity of theInternet, so it might be difficult to separate out the combined effect ofthese two elements in relation to public understanding.

In termsof increased trust, the evidence fromvarious quarters is thatFOI does not increase trust (Hazell et al., 2010). How can it increase trustwhen it constantly reveals shortcomings in government? The Consti-tution Unit research repeats that belief. I think the more pertinentquestion is what would the position be without FOI? Since thenineteenth century the UK had widespread and ill-defined officialsecrecy laws. These were reformed in 1989, but they still have a chillingeffect on behavior. In addition, in 2005 it was stated by the Departmentfor Constitutional Affairs that there were 336 statutory prohibitions ondisclosure often enforced by criminal penalty (Department forConstitutional Affairs, 2005). What would trust be like without FOIlaws?Aswe sawabove, FOI has beendirectly responsible for someof themost significant outcries against public greed and folly.

The impact on government and Parliament has been dramatic aswe have seen. Both Parliament – or, to be more specific, the House ofCommons – and the Prime Minister have introduced FOIA reformingmeasures—both unsuccessfully. The Commons approved a Bill thatwould have removed Parliament from the FOIA. Prime Minister

3 Tarsasag v Hungary (2009) Application No 37374/05.

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Brown, following a review of the Act by Frontier Economics (FrontierEconomics, 2006), prepared draft regulations amending the costsprovisions and charges for using the Act. The Commons Bill fell whenit failed to attract a single sponsor in the House of Lords. Theregulations were withdrawn. It seems likely that reform will comefollowing the Dacre (2009) review, and although this was widelymooted to include exclusion of Cabinet minutes from FOI and possiblyother items, this did not occur. It was widely rumored that membersof the Royal Family were displeased about disclosures involving themby PAs under FOIA. The amendment to s.37 was referred to above.

14. The European dimension

The UK is a member of the European Union. The EU has its ownaccess regulation which has been the subject of much litigation:Regulation 1049/2001 EC (Birkinshaw, 2010, chap. 10). A reasonbehind the movement to access to documents laws in the EU was toovercome the “democratic deficit” which it was felt characterizedgovernance in the EU. Reform of Regulation 1049/2001 has beenunder consideration for over 2 years although the proposals from theEuropean Commission have some very illiberal aspects and have beenopposed by the European Parliament (Birkinshaw, 2010b, chap. 12).On the whole, the case law of the EU courts has been supportive oftransparency and openness and there have been some very importantdecisions about the relationship between the access regulation andthe regulation on data protection covering EU bodies. The Commissionsought to keep documents secret where parties were named indocuments—redaction was not an answer because the requester hadlegitimate reasons for identifying who had attended meetingsrecorded in documents. The courts rejected the Commission'sarguments but on different grounds. The matter has to be finallyresolved but the key decisions have gone in the requester's direction(Birkinshaw, 2010b, chap. 12). However, in June 2010, the EuropeanCourt of Justice, the highest court in the European Union, ruled thatnames on official files were protected by data protection laws and theaccess regulation had to be read in that context: Case C-28/08PEuropean Commission v Bavarian Lager Co Ltd 29 June 2010.

The Treaty of Lisbon (ratified December 2009) is now the legallybinding foundation of the EU. The Treaty refers to the Charter ofFundamental Rights of the EU as a measure possessing the samebinding legal validity as the treaty (there are two treaty componentsto Lisbon). Under the Charter, access to documents is treated as afundamental right, together with data protection, a right to goodadministration and democratic rights.

There is also a Council of Europe (CoE) Recommendation and a2009 Convention on access to official documents. The CoE overseeshuman rights protection in Europe and has a very wide membershipincluding Russia and Turkey. The Convention would make this aTreaty obligation for signatories, but it would not introduce access toinformation into the European Convention on Human Rights (ECHR)thereby treating it as a human right.

15. Impact on the war on terror

We have seen that the security services and MI6 and SOCA areexcluded from FOIA but not from EIR and DPA, although very wide(albeit not absolute) exemptions exist under these measures. The waron terror has seen an important role played by the ECHR. This isparticularly relevant in relation to Art 5 (concerning executivedetentions and the right not to be detained without judicial authority),Art 6 (concerning access to justice and fair adjudications coveringcontrol orders (house arrest)), Art 8 (concerning the right to private andfamily life), and Art 10 (concerning the right to free speech). AlthoughArt 10 has been ruled by the Court of Human Rights not to provide a freestanding right of access todocuments the court ruled in2009 thatwhere

access to state heldfileswasnecessary to exercise the freedomof speechright, access to the file was covered by Art 10.3

It is also relevant in relation to Art 2 (concerning the right to life)and Art 3 (concerning the right not to be tortured or suffer inhuman ordegrading treatment) (Birkinshaw, 2010a, chap. 11). All of these, byvirtue of judicial interpretation, have supplementary rights toinformation in the judicial arena. A recent example of litigationconcerns access to information from the US government to the UKgovernment regarding the treatment of a person detained in Pakistanand then Guantanamo and where British involvement in the torturewas alleged. The US government objected to disclosure by the courtsaying that if this were ordered it would jeopardize any future transferof intelligence by the US to the UK. The UK government supported theUS objections in the court. The Administrative Court eventually ruledin favor of disclosure to the claimant. It represents the highwatermark of judicial involvement in national security decisions(BinyamMohammed v Secretary of State [2009] EWHC 2549 (Admin)).This decision was upheld by the Court of Appeal whose judgmentcame after the information was released in a U.S. court—this was acrucial factor in its judgment. The court did not approve of secondguessing the executive on such a sensitive matter (R (Mohamed) vSecretary of State [2010] EWCA Civ 65 and 158.

16. The wider information debate

FOI takes place in a wider context of government and information.Government communications were subject to change following thedeparture of Prime Minister Blair's press secretary Alistair Campbell.Reforms followed a review by the Phillis Committee (Phillis, 2004).The House of Lords Communications Committee still found much tocriticize in government communications (House of Lords. Commu-nications Committee, 2009).

The Dacre review of the 30-year rule to which I referred abovestated that the Internet had brought about “a significant increase inboth volume and candor of official information made available duringrecent years” (Dacre, 2009, p. 14). I will examine this a little moreclosely.

16.1. IT and e-government

Like government everywhere, the UK government and devolvedgovernment have made full use of IT. Tony Blair was a devotee of IT ingovernment and for public service. An E Government Unit (2007)existed in the Cabinet Office although its Web page ceased in 2007 andthe sitenow is forhttp://www.cabinetoffice.gov.uk/government_it.aspxand Directgov (http://www.direct.gov.uk/en/index.htm). Further focalpoints include govtalk (http://www.cabinetoffice.gov.uk/govtalk.aspx)and http://www.cabinetoffice.gov.uk/govtalk/policydocuments.aspx.

The current focus is the White Paper Putting the Frontline First:Smarter Government (Government, H.M. 2009 Cm 7753, December2009) and the launch of www.data.gov.uk in beta in early 2010following the developer site testing. This is an ambitious program,which aims to put government information on the Internet toenhance public service and service delivery and to enhancegovernment performance.

TheCentralOfficeof Information (COI) (http://usability.coi.gov.uk/)is the focal point for usability ofWeb sites and COIworkswith the Powerof Information Taskforce established in 2008 to advise on social andeconomic gains to be achieved through better use of governmentinformation. Open source and accessibility are key themes http://powerofinformation.wordpress.com/.

A particularly important initiative camewith the EU laws on re-useof public sector information. This has now been implemented in the

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UK by regulations (SI 2005/1515). These regulations aim to allowpublic sector information to be re-used for commercial purposes. Thescheme is quite complicated and detailed. In the UK Crown andParliament publications are protected by copyright. The Office ofPublic Sector Information (OPSI) in the National Archives isresponsible for overseeing the operation of re-use.

A further development is the Information Asset Register (IAR)which is accessed via inforoute (http://www.opsi.gov.uk/iar/index).The following leans on official literature. The IAR lists informationresources held by the UK Government, concentrating on unpublishedresources. IAR enables users to identify, from one single source, theinformation held in a wide variety of government departments,agencies, and other organizations. “Inforoute” is a key part of theGovernment's agenda for freeing up access to official information. TheUK government cites analogs existing in the USA and in Canada. Asdepartments identify information to be published through their FOIPublication Schemes (above), so unpublished information can also beidentified for inclusion in the IAR. IAR will include central governmentdatabases, old sets of files, recent electronic files, collections ofstatistics, research, etc. The IAR concentrates on information resourcesthat have not yet been or will not be formally published. Responsi-bility for IARs is placed on individual departments. OPSI has overallresponsibility for IAR formats and standards and for maintaining theinforoute Web site. It complements but does not duplicate existinglists of published materials. It has links to other sources of officialinformation and lists of official publications (e.g. Directgov, UKOP andThe Stationery Office). The Government does not wish IAR to become“resource-intensive or over centralized”. OPSI is establishing agreedindexing practices across all IARWeb sites to build an evolving centralservice. Contact names are given.

Reference should be made to Oneplace. This is a recent initiativegiving public access to performance achievements in public services. ItsWeb site opened on 9 December 2009. It is a new site giving details ofperformances by local authorities and health bodies in local services,children's services, care for the elderly, policing, and health. It cost £22million to put together and is politically contentious. The Conservativeshad promised to do awaywith it before they came to power in 2010 in acoalition government. Below is a brief section of the official description.The site uses greenflags for exceptional services and redflags for serviceareas of significant concern (http://oneplace.direct.gov.uk/Pages/default.aspx).

On this site, one can see how local public services are performingin England, if they provide value for money and where they couldimprove. The Audit Commission, Care Quality Commission, HMInspectorates of Constabulary, Prisons and Probation and Ofsted(education) “are working together to provide an independentoverview of the quality of life in your area” the site states. “You canalso discover howwell local public organizations, such as councils andpolice forces work together to meet local needs.”

16.2. Consultation, participation, and inquiries

Consultation is awidely practiced activity on the part of governmentin the UK. Official guidance on what is required by consultation isprovided by government and the courts have also set standards onwhatis required bywayof provision of information, feedback, time schedules,and fairness. The government guidance on consultation is at http://www.berr.gov.uk/files/file47158.pdf (BERR 2008).

Participatory exercises have long existed, especially in relation toplanning and land use (zoning) through the public inquiry. Heavylegal involvement and delay have led government to introduce newparticipatory mechanisms in this area under the Planning Act 2008.Inquiries are also used to establish information and facts in relation tocrucial events and several have been held on the subject of the Iraqwar including that on the use of intelligence (Butler, 2004) and on the

events leading to the Iraq war and its aftermath (Chilcot, 2009–2010).Invariably, on some aspects sensitive information is not made public.

This was to be the case in the inquiry announced by DavidCameron in July 2010 into allegations of British secret serviceinvolvement in torture of terrorist suspects overseas.

16.3. National statistics

The method for regulating national statistics was reformed in2007. A good deal of skepticism has attended government use andcontrol of statistics (Briscoe, 2009). The Financial Times reported inDecember 2009 on high levels of skepticism of statistical data held bythe UK government. Furthermore, the public authority NationalStatistics moved from London (the hub of UK government) to SouthWales—the latter has its undoubted attractions and it is far removedfrom the corridors of power. The move was seen as a demotion.

17. Conclusion

The information explosion in the UK has taken a new dimension injust over 5 years. FOIA has been operative and has seen dramaticdevelopments. All public officials now have to work in a culture ofopenness, like it or not. DPA has generated a new sense of urgency inprivacy protection. Government communications and use of theInternet have moved at breathtaking pace. The courts have becomemore demanding in terms of standards of openness and transparencyin government and administration. But we also live in a country thathas notoriously wide powers of surveillance. Privacy is everywherecompromised and invaded—we have approximately one CCTV forevery sixteen citizens (House of Lords. Constitution Committee,2009). We are notoriously submissive to claims of secrecy and theprotection of national security. The information revolution has welland truly planted its tentacles in the UK. Government has been quickto realize that this revolution can serve its purposes very well. A newinformation environment has raised traditional concerns of theprotection of civil liberties and individual integrity as governmentgets to know us better and more intimately.

References

BERR. (2008). Code of practice on consultation. London: Department for Business,Enterprise, and Regulatory Reform Retrieved b INSERT DATE RETRIEVED N, fromhttp://www.berr.gov.uk/files/file47158.pdf.

Birkinshaw, P. (1997). Freedom of information and open government: The Europeancommunity/Union dimension. Government Information Quarterly, 14(1), 27−49.

Birkinshaw, P. (2002). Freedom of information in the UK and Europe: Further progress?Government Information Quarterly, 19(1), 77−86.

Birkinshaw, P. (2005). Government and information: The law relating to access, disclosureand their regulation, 3rd ed. Haywards Heath: Tottel Publishing.

Birkinshaw, P. (2010a). Freedom of information: The law, the practice and the ideal, 4thed. Cambridge: Cambridge University Press.

Birkinshaw, P. (2010b). Transparency and Access to Documents. In P. Birkinshaw, & M.Varney (Eds.), The European Legal Order After Lisbon [Monograph]. EuropeanMonograph Series Set. Holland: Wolters Kluwer Law & Business.

Briscoe, S. (2009, December 30). The Financial Times The Financial Times.Butler (2004). The Right Honorable Lord. Review of Intelligence on Weapons of Mass

Destruction HC 898. London: The Stationery Office.Chilcot, J. (2009–2010). The Iraq Inquiry http://www.iraqinquiry.org.uk/ ongoing.Dacre, P. (2009). Review of the 30 Year Rule. London: The Stationery Office.Department for Constitutional Affairs (2004). Code of Practice on the discharge of

public authorities' functions under Part I of the Freedom of Information Act 2000http://www.foi.gov.uk/reference/imprep/codepafunc.htm.

Department for Constitutional Affairs (2005). Review of Statutory Prohibitions onDisclosure. London: Department for Constitutional Affairs.

Economics, Frontier (2006). Independent Review of the Impact of the Freedom of InformationAct, a report prepared for the Department for Constitutional Affairs. London: FrontierEconomics Ltd..

Hansard (2009, July 16). Hansard House of Commons Debates Vol 496 col 64WS.Hayes, J. (2009). A shock to the system: Journalism, government and the Freedom of

Information Act 2000. Oxford: Reuters Institute for the Study of Journalism.Hazell, R., et al. (2010). Does FOI work? The impact of the Freedom of Information Act on

central government in the UK. forthcoming.Government, H. M. (2009). Putting the frontline first: Smarter government, Cm 7753.

London: The Stationery Office.

321P. Birkinshaw / Government Information Quarterly 27 (2010) 312–321

House of Lords. Constitution Committee. (2009). Surveillance, Citizens and the State, HL18 (2008–09). London: The Stationery Office.

House of Lords. Communications Committee. (2009). Government Communications FirstReport (2008–09). London: The Stationery Office.

McDonald, J., et al. (2009). TheLawof Freedomof Information, 2nded. . Oxford:OxfordU.P.Ministry of Justice (2008). Working with the Central Clearing House; Toolkit for

Practitioners. London: Author.Ministry of Justice (2009a). Exercise of the executive override under s.53 FOIA. London:

Author.Ministry of Justice (2009b). Fourth Annual Report on the Operation of the FOI Act in

Central Government 2008. London: Author http://www.justice.gov.uk/guidance/foi-procedural-referring.htm.

Office of Information Commissioner. [OIC] (2008). Annual Report 2007-08 HC 670(2007-08). London: The Stationary Office.

OIC (2009a). Background to the Publications Scheme Initiative http://www.ico.gov.uk/what_we_cover/freedom_of_information/publication_schemes.aspx.

OIC (2009b). Exercise of Ministerial Veto under the FOIA. London: The StationaryOffice.

OIC (2009c). Information Commissioner's Office Annual Report 2008–09HC 619 (2008–09). London: The Stationary Office.

OIC (2010). Ministerial Veto and Devolution HC 218 (2009–10). London: The StationaryOffice.

Phillis, B. (2004). Review of Government Communications. London: Cabinet Office.Thomas, R., & Walport, M. (2008). Data Sharing Review. London: Ministry of Justice

http://www.justice.gov.uk/reviews/datasharing-intro.htm.UN Economic Commission for Europe (1998). Convention on Access to Information,

Public Participation in Decision-making and Access to Justice in EnvironmentalMatters.