Analysis of the Draft Italian Freedom of Information Law

See the Italian Draft Freedom of Information law here

Here is my analysis:

Overview

The legislation is clear, succinct and well-constructed. Particularly noteworthy are:

• A strong and clear purpose clause at the outset, emphasising the importance of transparency to the workings of Italian democracy and access to information as a right. This is important in sending a signal to those working with the legislation of its importance and can also play a part in determining later legal rulings
• The law is wide in applicability including a variety of public bodies and entities providing a public service.
• There are clearly expressed exemptions and a public interest test mechanism.
• There is a good oversight regime located in an already established body.
• Importantly there is a clear sensitivity to data protection and privacy.

Thoughts on the Proposed Legislation

The Request

• The request can normally be made by anyone with a valid email address.
• The draft law states a ‘name and address’ but that could be clarified to explain it does not mean a residential place (i.e. home) but simply an email.
• Some thought could be given to the form of requests, as the UK also now allows requests via social media-see page 22 of this guidance from the UK Information Commissioner.

The Appeal System

• The appeal timelines may prove difficult to work in practice. The draft law gives a rather short time limit of 30 days. All FOI regimes are affected by delay and appeal systems particularly so. The danger with such a timeframe is that delay will build up and slow down the system with a detrimental effect on confidence.
• Across different FOI regimes there is discussion as to whether any appeal body dealing with FOI should either (i) work closely with (ii) be the same body as that which oversees Data Protection appeals. Many appeals and complex requests concern the interaction/tension between the two principles.
• There is also an issue of who the appeal system reports to e.g. is it government or the legislature. This may lend a body independence politically and help in terms of resources.

Duty to help and assist see UK

• One very basic but helpful feature of an FOI law can be a statutory duty on authorities to assist requesters with their questions i.e. to help. See below for an example from the UK law where a body must ‘advise and assist’ e.g. in how to refine a request:

‘16 Duty to provide advice and assistance.

(1)It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.

(2)Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case.

http://www.legislation.gov.uk/ukpga/2000/36/section/16

Pro-Active Publication

• The draft law contains some interesting ideas on pro-active publication and how it can be promoted. The republication idea here is a good one.
• Evidence from different systems points to ‘Publication Schemes’ (i.e. mandated searchable lists of available documents displayed by each public body) as being rather outdated and rarely used by the public.
• One more promising feature are ‘disclosure logs’ whereby all previous requests and answers are listed and can be searched publically (also useful for the public body to be able to search for answers to repeat requests). Here is an example from the UK Ministry of Justice and this one from local government body Coventry City council which has a breakdown of topics and a search engine.
• Many countries are also adopting central online portals for FOI-see the US central FOI computer system e.g. US FOIA portal https://open.foia.gov/ or Mexican Federal tracking system.

Coverage of the Act: Covering new bodies

• Many laws contain a power for Ministers to add new bodies to the legislation as they are created-see here for the section of the UK law
• One body frequently discussed is Parliament. Many legislatures are partially covered for ‘administrative’ aspects of their work while the more party political aspects of their work and other confidential areas (e.g. correspondence between constituents and Members, the private work of committees) are restricted. In the UK the Speakers of both Chambers are given an exemption power to cover Parliamentary privilege (that is actually rarely used).
• The President /Quirinale should also be covered. There may be a similar need to cover some potentially sensitive correspondence as happens elsewhere.
• Other bodies of note include the police and health authorities.

Coverage of the Act: Private Bodies

• This a key area as privatisation and public-private partnerships mean private companies carry out more and more public work.
• Some FOI regimes actually cover of private bodies-both the Nigerian and South African laws cover private entities in certain situations. It is not clear how effective these parts of the legislation are or if they have significantly opened up private bodies.
• India has a different approach where you can use the Act to find out if the government is investigating a particular body, and access the information that way- see this blog for a discussion.
• The Irish FOI Act can potentially cover any body in receipt of ‘substantial’ funding from government.
• UK has currently opted for the insertion of standard transparency clauses in contracts with providers. There are numerous other options-see this discussion document from the Information Commissioner’s Office.

Oversight/Implementation [including thoughts on once the law is passed]

• Separate from the appeal system, there is a need for a body to oversee implementation, particularly in the early years to promote the Act and ensure standards.
• In New Zealand there was a specific body, the ‘Information Authority’, external to government that promoted the Act and provided guidance and information that was then disbanded after 5 years.
• The UK had a body within the Ministry of Constitutional Affairs called the Information Clearing House that was more practical and dealt with compliance, requests across government and maintaining standards. Again, this was disbanded after a number of years.
• It is important that public bodies maintain and publish statistics on use of the Act and requests made to them for monitoring purposes and to get a sense of how the Act is working.
• A further important factor is to ensure political support, to persuade and create compliance, and gathering of evidence to offset concerns/anxiety among government. Frequently there are
  • Concerns over resource costs (often a camouflage for a political discussion-see this paper from Ireland and this from the UK Constitution Unit)
  • Concerns over decision-making and procedures (well protected decision-making exemptions/exclusions are the answer)
  • Concerns over ‘abuse’ (this is often centred on ‘vexatious’ requesters and journalists but here statistics and positive examples can help)
• Publicity is important in raising awareness among the public and encouraging use-the Scottish Information Commissioner ran a series of TV advertisements to encourage use and India has a state run TV show on its Right to Information Act.
• Legislation can also usefully be reviewed by Parliamentary Committees at certain intervals once the law is in place. In the UK, for example, a Parliamentary Select Committee reviewed the Act one year on and there was further detailed post-legislative scrutiny in 2012.

Further Links

• Analysis of the Italian law by the Centre for Law and Democracy here
• UK Post-legislative scrutiny by the Justice Select Committee in 2012 see here.
• Analysis of a number of older FOI regimes from 1999 based on the UK’s draft FOI see here.

FOI and Fees

 

The UK Freedom of Information Act is currently, more or less, free to use. This week it was claimed (via a leak) that the new independent FOI commission has re-floated the idea of a ‘flat’ application fee.  But what would paying for an FOI request mean in practice? And how would it work?

What is the fuss about?

The fee is likely to be of the kind that exists under the Data Protection Act, which has a standard £10 fee.

Most FOI regimes, from India to the US, have a standard application fee that is charged for most (but not all) requests. However, almost all these charges have been part of the system from the start. Although some regional or state level openness regimes have introduced a fee , only one country, Ireland, went from having no charge to charging five years into the Act (the fees were then abolished again in 2014). In Australia Federal level FOI charges were abolished in 2010  [N.B there is now no application fee and 5 hours free Australian Federal government but state level fees vary – thanks Peter Timmins].

The difficulty with fees for governments are both practical and symbolic. Their introduction or abolition not only effects how the system works but is seen as a ‘signal’ of their attitude towards openness. Introduce fees bad, abolish fees good, to put it crudely. This comes at a time when fees for FOI appeals are also being considered, so it looks like a clampdown.

Why would a government do this?

The answer depends on your point of view, or your level of cynicism. Governments often make the case that FOI costs money so the fee goes towards offsetting the resources used-some public bodies make it explicit on their website. Critics see the cost claims as a smokescreen, as fees have also been found to deter requesters (see below).

What effect will it have if they are introduced?

Using Ireland as an example, a fee for an FOI request may do and not do a number of things, though these lessons are not strictly comparable as Ireland does not have a Data Protection law (so FOI is used to get personal records).

One clear effect in Ireland, as Martin Rosenbaum pointed out, was to cut the number of requests almost in half and according to the information Commissioner the result was a ‘dramatic’ fall in [non-personal] requests of 75% in a single year. Certain groups such as MPs and journalists saw a particularly sharp decline. As of 2013, a year before fees were abolished, requests remained at only half of their pre-fee level and represented a ‘tangible barrier’ to ordinary requesters.

It’s less clear whether a government can claw back any costs. In Ireland, Nat O’Connor concluded that the fees recouped only 1.6 % of the estimated cost and, given the relatively small number of non-personal requests to most bodies, were likely to cost more to administer.

The actual economics of FOI are rather difficult and very political, as I’ve pointed out elsewhere. Measuring the ‘cost’ of FOI involves balancing administrative resources against democratic benefits and any figure, high or low, can be challenged.

The details of any fees system will be key. Public bodies could use the sytem to point blank refuse or simply work outside of the rules. Evidence from a number of Australian states, where the first two hours of answering was ‘free’, found that many public bodies simply didn’t bother to charge if a request was small, as it was cheaper simply to send it out. You could imagine that parts of local government, the focus of 70-80% of all FOI requests, would opt for this.

On the other side requesters could try to get round it by, for example, asking lots of requests in one ‘request’. There may also be ways of building up ‘funds’. In a number of countries there have been successful experiments in the crowdfuding of requests including this FOI Machine in the US.

So will it happen?

The chances are unlikely. FOI systems come in for much criticism but actually changing them is difficult due to the symbolic potency of its name. In the UK fees have been suggested before in 2006 and some vague action against ‘industrial users’ was floated in 2013 but neither got off the ground. Many governments moot changes but few take place because they encounter stiff resistance, from press criticism to hunger strikes. The principle of Freedom of Information attracts cross-party and, more importantly, cross societal support-see the signatories on the letter about the FOI commission. Often governments see the hostility and resistance and conclude it’s simply not worth it politically. Often, but not always.

Opening Up The Private Sector

The focus of transparency is almost always on government and public bodies. However, over the past ten years, often outside of the headlines, a growing collection of laws, regulations and technological innovations have gradually shone a light on the private sector too. So what can we know and how far does it go?

Freedom of Information

One of the principle legal routes to accessing information about private bodies is the FOI Act, at least for those companies working on behalf of public bodies. Although it remains a ‘complex’ legal grey area, an FOI can obtain information material ‘held by a private company “on behalf of” a public authority with which it has a contract’. Public sector contracts in the UK are currently worth around £93 billion per year according to the ICO.

Section 5 of the Act also allows government to extend the law to actually cover companies within the scope of the Act itself, something the Public Accounts Committee has urged use of in the past. The last Labour government gave some thought to it in a rather long running consultation between 2007 and 2009. This led to some minor extension to cover ACPO [now called the National Police Chiefs’ Council] and exam bodies. The Coalition and new government took a different approach. Rather than extending the Act under section 5, they have championed the use of new FOI clauses in public sector contracts. It’s not exactly clear how far this is working.

The Scottish government has also consulted on extending its separate FOISA legislation in 2009, and in 2013 local trusts involved in leisure activities were covered. This year they have had a new consultation looking into whether other bodies such as private prisons can now come under FOISA (though this did not include Housing Associations as some hoped).

Alongside government attempts there has been some gradual natural ‘creeping’ outwards of FOI. Network Rail became subject to the Act in March 2015 (see some requests here) and new bodies such as the UK’s Police and Crime Commissioners are also covered (though this report was ‘deeply’ worried about how transparent they were-see page 11-12). The Police Federation is now set to follow. More significant than this ‘creep’ is the influence of decisions from appeal bodies and the courts. An important legal ruling in Fish Legal v Information Commissioner and others [2015] over FOI’s sister Environmental Information Regulations appeared to extend the law to water companies-and this may potentially include other utilities too.

The issue of extension remains a political one. All the major parties remain, at least in principle, supportive of pushing FOI further. The new Labour leadership has also committed [or actually re-committed] itself to extending the Act to private bodies doing public work as well as closing up ‘gaps’ in coverage caused by education and health reform.

Polling by the Scottish Information Commissioner showed that this is a policy that definitely gets the support of the public. A full 76% of Scots asked felt private prisons should be covered with 79% believing that housing associations should be as well. A UK tracker found that 75% of respondents saw extension as an ‘important’ issue and the Information Commissioner has recently offered a range of options to fill the ‘transparency gap’ caused by outsourcing.

Other Laws

It’s not only FOI. A succession of other laws have opened up different parts of the private sector. One recent headline grabbing reform, launched by the Prime Minister in 2013, has been the promise to create a Beneficial Ownership Register under the Small Business and Enterprise Act 2015. What this means is that as of April 2016 Companies House will publish, as Open Data, a list of the ‘Person[s] With Significant Control’ of all UK registered companies. Another eye catching reform has been over Extractives Transparency covering companies involved in natural mineral extraction such as oil or gas. The transposing of EU laws and joining of the International EITI network (see this paper) means all UK registered companies involved in this area will report tax payments, licences and contracts as of next year. Similar small pieces of transparency can be found across many other new laws and regulations. The recent Consumer Rights Act 2015, for example, ‘imposes a duty on letting agents to publish their fees and other information’.

The government has also pushed British dependencies and overseas territories to follow suit and publish Beneficial Ownership information. David Cameron sent a letter in 2014 on the subject to various tax havens. Although Grant Schapps appeared a little cooler on it during a visit to the Caymans, Cameron then pushed the issue again recently in Jamaica as did the new anti-corruption champion Eric Pickles, who appeared to threaten legislation.

Technology

Alongside legal mechanisms, there has been a growing use of online tools to open up companies. The government recently rebooted its Contracts Finder site that details its tenders and contracts with the private sector while other innovators, such as spendnetwork, have created new apps.

There have also been specific ‘transparency’ pushes after problems or controversies. This year David Cameron committed to publish data on property ownership following claims of large amounts of ‘dirty money’ swilling around the London property market and promised new data on gender pay gaps in all companies employing over 250 workers (this one is a bit of a sleight of hand as it was mandatory under the Equalities Act 2010 but was never implemented). These moves, as Jo Bates points out, may have all sorts of political implications. Nor is it clear what effect they may have. Despite hopes publishing salaries online will help lower inflated pay packets evidence indicates that disclosure makes them go up rather than down.

The Politics of Private Sector Transparency

Opening up is often piecemeal. Any politician pushing for any large scale opening up, such as using section 5 of the FOI Act, faces three main problems.

First, there is a potential reluctance to publish and it may be a struggle to get companies to cooperate. Our study of FOI and local government found that most companies do comply with FOI requests. However, any sceptical business can argue it is (i) unnecessary as so much information is published anyway (ii) a costly burden-see this analysis here.

Second, added to this may be the complexity of any change, that will take time and energy. Any large scale opening up only works with international cooperation. So, for example, UK Beneficial Ownership is slightly stymied by the fact that the EU equivalent will only be partially open. The devil, as someone warned of extractives, is in the detail.

Third, given these problems there needs to be a lot of political will, energy and attention to follow through. Any politician or party pushing large scale openness needs either a very good reason or very strong principles. Most likely it will only happen when there is a very obvious problem to solve or a very obvious political benefit (or both if possible).

What Next?

Accident and change will open up different areas. Legal changes, designations or rulings will continually shift the boundaries. Network Rail was re-designated for accounting purposes and FOI coverage was, in that sense, a ‘side product’. The laws in place will already keep opening up new areas through use and Martin Rosenbaum has shown how FOI has opened up not just MPs’ expenses but also restaurant hygiene ratings and MOT tests.

It is often pushed by scandal or concern in a specific area such as over tax avoidance (Beneficial Ownership), gender pay or corruption. It was the poor performance of G4S, for example, that led to recent calls to extend the FOI Act.

 

Finally, experimentation with open data and technology may move openness across the private sector. Chris Taggart, designer of Open Corporates, has created a prototype site Who Controls It? to use the new Beneficial Ownership data. As he points out, apps and websites alone won’t bring change but benefits may ‘be revealed when the beneficial ownership data is combined with other datasets, including government procurement, licences, environmental citations, and other public data.’

It’s unlikely there will be a clear ‘big’ opening up of the private sector comparable to FOI across government. It will problem happen, as many things do, gradually, through a mixture of accident, law, politics and experiment.

To find out more you can read the full IRM report of the UK’s Open Government Partnership commitments here see especially commitments 7 (Beneficial Ownership), 12 (Contracts) and 21 (Extractives).