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Beware Freedom of Info law 'privacy folktale' - ICO chief

Chicken Lickens in a flap as FOIA scrutinised

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Is Blighty's Freedom of Information (FOI) law working?

The civil servant leading the agency charged with enforcing it thinks so, and says a review by politicians shouldn't succumb to myths about the supposed dangers of more openness by the State.

UK Information Commissioner Christopher Graham has called for "careful analysis" and debate that arrives at an "FOI that's fit for purpose" - without succumbing to "emotion".

"Is academic research really threatened by the prospect of premature release of data sets? Are ministers living in fear?" Graham asked a government computing conference last week. "The Chicken Licken version of the FOI that the sky is falling is just that: it's a folktale – and the trouble with folktales is people start reacting to what the think is the case even when it isn't."

He didn't name names, but two particular chickens spring to mind: chiefs in Whitehall and academics such as those whose work has helped give climate research a bad name.

Graham spoke as politicians moved ahead with a post-legislative review of the FOI Act, which was passed in 2000 but only became law in 2005. The Parliamentary Justice Select Committee on Friday stopped accepting written evidence in an inquiry investigating whether the FOIA is working effectively, what its strengths and weaknesses are, and whether it is operating as intended. The committee will decide whether further scrutiny of the Act is necessary.

The FOIA was introduced by an idealistic post-Tory government and pre-Iraq War Labour Party, with Tony Blair keen to mould the UK towards a more US model of civics and government. Often in reformist British political circles, the US is seen as the model to adopt. It's up there with supreme courts and elected police chiefs and judges.

Under FOIA, you can send a Freedom of Information request to some state official or public servant and – in most circumstances – expect an answer, although your question has to be laser-focused (unlike the response).

Six years in, however, Blair has called the FOIA "dangerous" and "misguided" because governments need the guarantee of privacy to conduct their business; FOIA was "utterly undermining of sensible government", Blair said.

Given Blair led the country to war on flimsy evidence, it's understandable the former PM should feel exposed by the Act. If there is a problem with FOIA, it seems some of the people who would typically qualify for FOIA scrutiny have resorted to creative methods for getting around it. Was this what Blair meant by the undermining of "sensible government"?

Secretary of State for Education Michael Gove and his advisors are now under investigation by Graham's people for a potential breach of the FOIA for sending communications about government business using private email accounts (warning: PDF).

The story broke last year and as Labour MP Lisa Nandy has recently written here, she'd received a letter from the information commissioner stating:

"I plan to conclude a number of complaints under Section 50 of the FOI Act over the next few months – these will cover whether specific information requested is held for purposes of the Act. I am also still considering allegations about whether individuals at the department breached section 77 of the Act."

Setting the scene, the ICO in December published new guidance saying messages in private email accounts, text messages and other messaging systems can be disclosed under FOI laws if they relate to public business. "This has always been the case – the Act covers all recorded information in any form," said Graham, adding it should come as "no surprise" to public authorities.

It would seem that as the UK has followed the US in its freedom of information laws, so our politicians seem to have also followed their Washington DC colleagues in their attempts to evade the law.

Public officials elsewhere have been exploiting the vagaries of data back-up to dodge the law. The University of East Anglia's Climatic Research Unit (CRU) – Ground Zero of Climategate – has claimed it was unable to cough up information emailed to colleagues at Georgia Tech on their research under a Freedom of Information request because the emails were probably not "held", and so could not be disclosed. An FOIA tribunal in January ruled that the absence of a local copy is not a hindrance and that FOI requests extend to back-up servers, too. It ordered that the university provide a copy or mirror of the back-up server. It's the data that's important, not where it lives.

Looking to a future beyond the Justice Committee's current review, Graham spoke last week of an FOI 2.0, saying Britain's politicians should not look back at the last seven years for inspiration when re-crafting the law but look forward – at, for example, data being made available in usable and re-usable formats.

The dispute over formats and public data is not a new battle, though – it's a fight that's been waged between fans of open source and Open Office in one corner and Microsoft with its MS Office in the other for a decade. Both sides have been enlisting their proxy customers to the cause.

A sensible debate on FOIA 2.0 is needed and it would certainly be best to filter out the words of those with a vested interest who may feel threatened. However, the debate would also be better served if reviewers looked in detail at the past seven years for lessons learned on how to close down loopholes and end the culture of "we didn't know" excuses and creative interpretations.

A review could do that by making the law more explicit about what types of data and communications are allowed and subject to the law. This, coupled with ensuring individuals are held accountable through clearer best practices, regular reporting and penalties, would also help. ®

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