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Research on Open Data and Transparency


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The power to just say no: Corbyn, Freedom of Information and the Ministerial Veto

 

Vetoes are there in the hope they will not be needed, but their mere existence reassures. In no case is this truer than section 53 of the UK FOI Act,  which allows the government the ultimate power to block requests. Amongst a number of radical proposals in his recent speech on the media, Jeremy Corbyn suggested that he would ‘look at ending the ministerial veto to prevent the Information Commissioner being overruled’, thereby abolishing the government’s FOI veto.

Some sort of veto, or ultimate backstop, is common across many FOI regimes. The US stands as an exception due to the separation of powers (though this didn’t stop President Johnson trying to insert a thoroughly unconstitutional one into the original bill). In some senses, the veto is symbolic for supporters and critics alike, offering a final reassurance or a last line of ultimate secrecy, depending on your point of view.  The idea to abolish it has been around for some time, and the Liberal Democrats promised to do so in their 2017 election manifesto.

In the UK, whether the Freedom of Information Act 2000 (FOIA) had a veto in it or not was a key sticking point, and an indicator of the shifting radicalism of the policy as it made its turbulent way onto the statute book. The terrifying lack of a veto in the original White Paper sent a shiver through Whitehall (a veto would, it argued, ‘erode public confidence in the Act’). The later draft bill, which emerged after much retreating and agony, had a veto so wide it could be used not only by government ministers but also potentially local councillors. In this form, it was a veto that could be seen, as it were, from Huddersfield. Removed from the White Paper and re-inserted into the draft Bill, the final FOIA gave government a veto to prevent the release of information, even if the appeal system ruled in favour, in situations where the public interest had been weighed and ‘exceptional circumstances’ existed. So far so clear. But there are some complexities that only, perhaps, Corbyn’s proposal would resolve.

Complexity number one is that the veto is rarely used. Jack Straw, who was Home Secretary at the time the FOIA was passed, later claimed that the veto was a deal breaker for himself and Blair – the final line of defence for an increasingly anxious and unhappy Cabinet.  Looking across the last decade or more, the UK veto has been rarely used, especially when compared with other FOI regimes. In the first few years, in fact, it looked it wasn’t used at all.

Comparative veto use in the first four years of FOI systems

Jurisdiction Veto use in first four years
Australia 48
New Zealand 14
Ireland 2
UK 0

It did however eventually get deployed, ironically by Jack Straw himself, in 2009. According to this House of Commons briefing, it was used in total on seven occasions over the next five years, at various levels of the FOI appeal system, in relation to the following topics:

  • Legal advice on hostilities in Iraq (2009)
  • Devolution Cabinet minutes (2009)
  • Devolution Cabinet minutes (2012)
  • NHS risk registers (2012)
  • Hostilities against Iraq (2003)
  • Correspondence from Prince Charles to government ministers (2012): this veto was declared unlawful by the Supreme Court (see below)
  • Documents related to HS2 (2014)

Corbyn, unsurprisingly, emphasized the two vetoes related to the war in Iraq as the reason for his new policy.

But why so few? This may be as a result of the successful functioning of exemptions elsewhere lower down the system. However, it may also be political. Jack Straw argued before the Justice Committee in 2012 that there would be a natural brake through a ‘political reluctance’ to use what is the ‘ultimate’ power. The veto has a clear ‘backlash potential’ as it naturally draws attention to the particular topic, generating headlines and making the government appear secretive’. Straw was accused of a ‘cover-up’ over the devolution veto and Andrew Lansley, one better, was conducting a ‘cover up of epic proportions’ over the NHS risk register.

Complexity number two is that, more than a decade after FOI came into force, no one is really clear how the veto works. The mystery produced a mini-constitutional crisis in 2015–2016, a great illustration of the unintended consequences of transparency reforms (Blair also probably didn’t expect his FOI legislation would lead to the mass resignation of a parish council who claimed FOI answering costs would mean no Christmas decorations either).

A request by Guardian journalist Rob Evans to see pre-2010 correspondence between the Prince of Wales and government departments (the so-called ‘Black Spider memos’) was vetoed following a case at the Upper Tribunal. It left the status in limbo (for a detailed legal explanation, see this article by Mark Elliott).

The requester’s appeal was eventually upheld by the Supreme Court after a six-year court battle in the case of R (Evans) v Attorney General. The complex case hinged upon the ‘constitutional dubiousness of the override power’, whether a court could ‘strike down a government decision under power granted by Parliament’ and whether a government could ‘overturn an independent judicial tribunal’ rather than the ICO. In a ‘radical’ majority verdict, the Supreme Court upheld the decision of the Court of Appeal. By a 3-2 majority, it ruled that the use of the veto cut across two constitutional principles and fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.

The executive could have such a power only with clear legislation, and ‘section 53 is a very long way from being clear’. As well as kick-starting a detailed and controversial review of the law, the ruling became, according to Mark Elliot, one of the ‘landmark public-law cases of the early twenty-first century’, raising ‘fundamental’ questions around the rule of law, sovereignty of parliament and the separation of powers and illuminating the ‘complex constitutional environment FOI inhabits’. Interestingly, the actual memos (read them here) showed Prince Charles doing all sorts of reasonable things like lobbying over the quality of equipment in Iraq.

The Independent FOI Commission created in the wake of the Black Spider ruling (also known as the Burns Commission), created by David Cameron to cut back on the pesky FOI, actually ended up supporting it. The commission also argued that the veto needed to be rewritten for clarity and used more narrowly only after Information Commissioner decisions. It also added a note of caution:

In making this recommendation we recognise that by forcing the government to exercise the veto earlier or not at all, the veto may be used more frequently than previously. However, we would hope that the veto is held in reserve for the most serious cases, and that it continues to be exercised relatively rarely.

The government ducked any legal change and just promised a dollop of self-denying ordinance:

The government agrees with the Commission’s analysis that parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.

So what if, as Corbyn wishes, the veto is abolished? Evidence from other Westminster systems seems to show it won’t affect much. New Zealand effectively removed its veto power in 1987 and Australia similarly abolished their equivalent in 2009. Former NZ Prime Minister Geoffrey Palmer felt the veto change in New Zealand had no effect at all. Not having a veto might make things awkward and difficult, but isn’t making things awkward and difficult what FOI is supposed to do for politicians anyway?

I’d point to some quotidian problems that are more worrying than any veto. Looking across the last few years, the IFG’s Whitehall Monitor shows a clear slowdown in responses at central government level: ‘Since 2010, departments have become less open in response to FOI requests’: while 39% of requests were ‘fully or partially withheld’ in 2010 a full 52% were ‘fully or partially withheld’ in 2017.

Moreover, there are signs of growing resistance and avoidance at the top with politicians fighting, hiding and avoiding FOI. In June 2018, following complaints by Scottish journalists, a report by the Scottish Information Commissioner concluded that the Scottish government had sought to create a ‘two-tier’ system delaying journalists or politically sensitive requests. At the same time, Northern Ireland’s most senior civil servant, David Sterling, informed the RHI inquiry that records had not been kept of certain sensitive political meetings. The BBC quoted him as saying that ‘Ministers liked to have a safe space where they could think the unthinkable and not necessarily have it all recorded’, and the ‘DUP and Sinn Féin were sensitive to criticism and in that context, senior civil servants had “got into the habit” of not recording all meetings’. He said this was done on the basis that it was sometimes safer not to have a record which might be released under Freedom of Information rules.

Corbyn spoke of how his party ‘should be more ambitious’ in terms of FOI. For any government, abolishing the veto would send a clear signal of its commitment to transparency. However, the debate over the veto is a smokescreen which can distract from some of the seemingly lesser issues of delay and interference that are potentially more deadly.

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Does FOI Work? An Experiment in the Netherlands

Council-Office-Sign-600

Here’s a brand new replication of our past FOI experiment on English parish councils-re-done in the Netherlands. As with our earlier experiment, a series of requests were sent to 390 local bodies, half FOI and half informal ‘asks’. In the Dutch case, the use of FOI appeared to have an even stronger effect than in the English case. Here’s the full abstract:

Transparency and responsiveness are core values of democratic governments, yet do Freedom of Information Laws – one of the legal basis for such values – actually help to increase these values? This paper reports a replication of a field experiment testing for the responsiveness of public authorities by Worthy et al (2016) in the United Kingdom. We sent 390 information requests to Dutch local government bodies, half of which were framed as official FOIA requests, the other half as informal requests for information. We were able to reproduce the original findings, that is, we found a positive effect of FOIA requests on responsiveness. The overall response rate of local governments was much higher (76%) and the size of the effect was larger than in the original experiment. Furthermore, the strongest effect of FOI was found on proactive disclosure (concordance), something that governments – strictly speaking – are not obliged to do according to the Dutch FOIA. Implications for future replication studies are discussed.

The pdf of the paper is here FOI Experiment Netherlands. You can download the full paper for free and see the paper details here http://www.journal-bpa.org/index.php/jbpa/article/view/34

Our earlier experiment with English parish councils is described on this LSE blog here and the paper is available on ssrn: Worthy, Ben and John, Peter and Vannoni, Matia, Transparency at the Parish Pump: A Field Experiment to Measure the Effectiveness of Freedom of Information Requests (December 4, 2015)  https://ssrn.com/abstract=2699198


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Open Government in Australia and the UK

OGP-Australia-logo-200p

Birkbeck hosted a discussion comparing the openness of Australia and the UK, looking at the Australian government’s OGP commitments. The Open Government partnership is an international ‘multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance’. Governments who take part sign up to a set of commitments within a certain time frame and are then publicly assessed on how they implement them.  More than 70 countries have been signed up, as well as 15 sub-national governments.

Daniel is the assessor of the Australian government’s openness commitments, and interviewed NGOs and officials to write a report on how far the commitments have been implemented. Australia has a longer history of openness than the UK, having passed an FOI law long ago in 1982. This is not to say all is well and, as Daniel pointed out, secrecy has surrounded many of Australia’s activities not least its Trump-esque refugee ‘turnback’ policy and horrific stories from its offshore detention centres.

Australia was invited to join the OGP in 2011 but took a long circuitous journey to get there, as Daniel explains. It is currently on its first National Action Plan, with its Second National Action Plan 2018-20  due by the end of August, 2018 (the UK has just finished its Third and will soon be on its Fourth). Daniel’s first report was published for public comment in April.

As Daniel explained, there were many similarities with the UK’s own policies. Australia’s plan covers similar themes to the UK, highlighting integrity and private sector openness. Like Britain, it is pushing a Beneficial Ownership register opening up who has control of businesses, as well as extractives openness (a very big issue in resource-rich Australia) while also opening up data and ‘re-booting’ existing provision around FOI or elections. You can see how it overlaps with what the UK has been doing here.

Not everything has been smooth and there has been some resistance and foot dragging along the way. One key issue, as seen in other countries, is around the extent to which civil society, who must co-create the plan, is involved. A survey of members of Australia’s civil society network in early 2018 found that there were ‘hopes and disappointment’ with members expressing their ‘disappointment with the limited progress made on some commitments and the failure of most lead agencies to engage with civil society in a way that reflects the true spirit of partnership’. As happened with the UK earlier on, commitments have been driven from the centre with less input from either civil society or other levels of government (state or local), where interesting openness experiments often take place.

Some of the patterns in Australia are not new. There are cycles of enthusiasm and interest and governments go on and ‘off’ openness (more often off). There are also different levels of engagement between departments and often a slow down once commitments are made. This is also where CSOs come in as a force for pressure, and to build relationships.

As with openness more generally, leadership is key. Senior politicians need to be involved and enthusiastic to provide momentum. So far, there has silence from large parts of the Australian government.

You can hear the podcast here https://backdoorbroadcasting.net/archive/audio/2018_07_12/2018_07_12_Daniel_Stewart_talk.mp3

You can see Daniel’s report here and a summary here.

Daniel is a senior lecturer at the ANU College of Law. Daniel is the independent Research Monitor for Australia as part of the international Open Government Partnership, reporting on developments relating to access to information in Australian Commonwealth, State and Territory Governments.

 

 

 


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The Scottish Information Commissioner’s Intervention: skulduggery in Scotland?

Today the Scottish Information Commissioner published his report into claims that the Scottish government had been making certain FOI requesters (namely journalists and political researchers) subject to different procedures. This followed claims from Scottish journalists in 2017 of interference in their FOI requests. Here’s a few conclusions from the report…

Were journalists dealt with differently?

The SIC concludes they were.

‘While I received reassurances throughout my interviews that journalists’ requests were dealt with in the same way as requests from any other person, this is clearly not the case.

Journalists, together with MSPs and political researchers, are expressly made subject to a different process for clearance than other requester groups. As set out above, their requests are almost invariably subjected to an additional layer of clearance which is likely to delay the consideration of the case. This process is applied because of who/what they are, not what they asked for. This is far from the applicant-blind principle of freedom of information legislation’.p.24

‘It may very well be the case that many requests for information from journalists, MSPs and political researchers are for sensitive information, in which case it may be entirely justified that clearance is required at a higher level in the organisation. However, by creating and applying a process based on requester type rather than the nature of the request, not only is the spirit of FOI legislation offended, but trust between those groups mentioned in the policy and the Scottish Government may also be damaged. I have heard criticisms of a two-tier system, and the existing policy simply reinforces such concerns’. P.24

Did it affect disclosure?

There’s no evidence that the ‘two-tier’ approach changed disclosure.

‘Except for 2015/16, the statistics do not show journalists to be treated in a materially different way from other requester types, insofar as the likelihood of obtaining full or partial disclosure is concerned. However, given the level of involvement that special advisers have in the handling of many information requests, there is obviously a perception that their involvement is disadvantageous to such requests’.p.27

…But  it did delay journalistic FOIs, above the average amount of time taken…

‘Despite these significant improvements, there is still a noticeable difference in time taken to deal with media, as opposed to non-media, requests. While some of this may be due to the complexity of some of those requests, it is inevitable that higher levels of clearance will add time to any response process’. P.30

Was any there wrongdoing (Part 1 identity)?

The SIC concludes it contravened the ‘spirit’ of FOI

‘In my view, the practice of referring all media requests for clearance is contrary to the spirit of FOI legislation. In most cases, the identity of a requester should be irrelevant for the purposes of FOISA and an authority should handle requests on the basis that they are applicant, and purpose, blind’ P.30.

Was there wrongdoing (Part 2 use of exemptions)?

It seems not-though exemptions were ‘pushed’ to their limit or tried out.

‘I could find no evidence of improper motives in the application of exemptions… There was an indication in some cases of reliance on exemptions where, although there may have been a legally stateable basis for doing so, the prospects of success, were the case to be reviewed or appealed, were not high’…though he notes one ‘flimsy’ attempt. P.31

Was there wrongdoing (Part 3 records and a chilling)?

One recurrent theme of the report was that there was a lack of documents to either support or refute claims (and the IC recommends there be new rules on record keeping).

‘The clarity of the situation is not helped by the general lack of records of interactions between special advisers and case-handlers in the case files… The lack of a clear record of what was discussed only feeds speculation which a clear record could dispel.’ P.23

‘Looking at the advice provided to Ministers, as previously mentioned, records management in case files is sporadic and in many cases the rationale for the decision is not clear from the documents.’ P.32

‘The examination of Scottish Government case files revealed significant gaps in the information recorded. In many cases, there was scant information contained in case files; in some there was no documentation whatsoever…Consequently, in many cases examined by my officers it was impossible to ascertain what processes had been followed, what (if any) discussions had taken place, whether advice had been sought and/or received and who had been involved in shaping responses’.p.34


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Fight, Hide, Avoid: Resistance to Freedom of Information Laws

trump-oval-office-advisorsAlthough there is no clear evidence of any government-wide, systematic resistance to freedom of information laws in the UK or elsewhere, there are examples of avoidance and resistance, often at very high levels and in sensitive situations. There appear to be numerous strategies to avoid or mitigate FOIs. Some clearly contravene the law while others run against the spirit of openness. Examples include:

Use of private email systems. In the UK, Michael Gove was found to be using a private system when he was Education Secretary, leading to an ICO ruling in 2012 clarifying the distinction between public and private communications (see below). Allegations have been made about other politicians trying to circumvent FOI through private emails, from Sarah Palin to various members of Donald Trump’s team, including, according to CNN, Steve Bannon, Jared Kushner and Ivanka Trump. Most famously, Hilary Clinton’s use of a private server and email may have violated the Federal Records Act and later archiving regulations, though whether she did this simply for convenience of access (as Clinton claimed) or to hide from FOI requests and potential Congressional investigation (as her opponents alleged) is unclear.

Non recording of information (known as the ‘Chilling Effect’). This type of non-minuted, informal mode of decision-making can take many forms, stretching from using phone calls, verbal decisions or disposable post-it-notes to having informal meetings entirely without records. The Swedish government, with the world’s oldest openness law, calls this the ‘empty archives’ phenomenon and mentions of ‘post-it-note’ approaches date back to the US in the 1960s and Australia in the 1980s. There was some recent evidence of non-recording in Scotland when, in November 2017, the Ferret unearthed evidence that the Scottish Environment Protection Agency asked for ‘verbal’ updates instead of written documents, mentioning FOI as a reason (see the emails here on page 11-12). This chain from 2008 shows a UK official apparently urging others to delete emails because of FOI.

Informal meetings, made famous by Tony Blair’s (pre-FOI) ‘sofa government’ style, are more difficult to prove. However, in March 2018, giving evidence to the RHI ‘Cash for Ash’ Inquiry, the Head of Northern Ireland’s Civil Service admitted that ‘the practice of taking minutes had “lapsed” after devolution’. The BBC quoted him as saying “Ministers liked to have a safe space where they could think the unthinkable and not necessarily have it all recorded” and the ‘DUP and Sinn Féin were sensitive to criticism and in that context, senior civil servants had “got into the habit” of not recording all meetings’. He said this was done on the basis that it was sometimes “safer” not to have a record which might be released under Freedom of Information.’ He did, however, qualify this and ‘agreed with the inquiry panel that when it came to ministerial decisions on matters of public money it should be recorded.’ Former Head of the UK Civil Service Gus O’Donnell had made similar claims for the UK Cabinet being ‘hamstrung’ by FOI, though relied on anecdote and hypotheticals to illustrate his point (see this analysis).

Involvement of press advisors and media officials. The Scottish Information Commissioner spoke of claims of ‘deliberate delaying tactics and requests being blocked or refused for tenuous reasons’. One study of more than 2000 ATIA requests in Canada by Professor Alasdair Roberts found exactly this happening, with ‘requests that were identified as sensitive, or which come from the media or political parties, found to have longer processing time, even after other considerations are accounted for’. Procedures within government focused on ‘giving special attention to politically sensitive requests for information’, ‘flagging’ difficult requests electronically and using communication officers and Ministerial offices as gatekeepers for releases. Similar claims were made in the UK for the ‘Clearing house’ that was intended to co-ordinate responses across government.

Timing, requesting and release. One approach seen in Ireland and elsewhere is for government departments to deprive journalists or others of scoops by publishing request responses online simultaneously. Alternately, releases can be buried by publication on a busy news day or at the end of a week. Even more creative has been the approach of the FBI, who recently asked that FOIA requests only be sent by fax (though the FBI FOI email appears to still exist).

One important point to make is that while high profile examples exist, mainly from politicians, we found officials were generally as fearful of not having a record as having one, with the pressure from bosses or potential judicial review to keep a record outweighing the danger from FOI. Research at local government level in Scotland and the UK found there to be a positive, professionalising effect on records.

Two problems: Is it happening? Is it FOI?

Any research in this area hits two major difficulties.

How do we know it is happening? It is unclear how widespread such activity is. Are the examples above are the tip of the iceberg or isolated misbehaviour? By its nature, it is very difficult to prove a negative (i.e. something didn’t happen) in terms of records or avoidance and is often reliant on anecdote. One study found many comments to ‘not record’ were often jokes or light hearted quips. However, the problem is that the myth could become reality. One previous UK Information Commissioner warned that constantly ‘talking about a chilling effect’ can make it a ‘self-fulfilling prophecy’, so when Tony Blair claims FOI laws make politicians ‘very cautious’ or David Cameron argues it is ‘furring up the arteries of government’ they could make it happen.

How do we know it is FOI? Isolating and disentangling FOI as the cause of the problem is almost impossible. Fear of leaks, the arrival of new technology, new decision-making styles and the key question of resources all influence how and if records are kept. Ex-Downing Street Communications Director Craig Oliver complained that accusations made during the Brexit referendum campaign that Cameron was avoiding FOI by using WhatsApp misunderstood that it was simply quicker and more secure than email. Concerns over the non-recording of information go back far into the past. As the Justice committee pointed out, the 2004 Butler report raised serious concerns over Tony Blair’s use informal meetings and ‘sofa government’ a year before FOI came into force. James Callaghan’s famous quip captures the nuances and grey area between official and unofficial disclosure: ‘I brief, you leak’.

What can be done?

There exists rules on records and destruction in almost all FOI laws (and Scottish FOISA has them in section 60 and 61). In March 2018 the first charges were bought for a Councillor in Thanet ‘blocking, concealing or destroying records held by Thanet council “with the intention of preventing the disclosure by TDC of information”. This also touches on rules around whether emails are archived or deleted and more generally what records are kept and for how long, issues that proved controversial recently in relation to Scottish care homes and a panel looking into paramilitary disbandment in Northern Ireland.

Some laws also cover private emails being used for public business. In 2012 the UK ICO, for example, created new guidance in wake of Gove email controversy, making clear that texts or emails are covered if ‘information “amounts to” public authority business’ or “generated in the course of conducting the business of the public authority”.

In 2017, former Scottish Information Commissioner Rosemary Agnew called for a ‘radical re-think’ around how FOI works in terms of disclosure, recording keeping and release, so bodies ‘invest in dissemination of information as a way of doing business’ rather than through requests.

The letter from Scottish journalists in 2017 called for a specific legal duty to record decisions. The UK information Commissioner has also championed the creation of a ‘duty to create records or “duty to document”…a positive duty in law to create records of significant decisions, actions and events’. That means public bodies must keep ‘records explaining and providing context to why a specific course of action was taken [including] Minutes of important meetings, decisions, that led to policy change and new initiatives’. Such a law exists in British Columbia following an email deletion scandal, though campaigners claim the law lacked teeth as it did not mandate the creation of records.

Further Reading

  • Worthy, Ben and Hazell, Robert, Disruptive, Dynamic and Democratic? Ten Years of Freedom of Information in the UK (December 28, 2015). Parliamentary Affairs, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2708768
  • Roberts, Alasdair S., Spin Control and Freedom of Information: Lessons for the United Kingdom from Canada (December 20, 2003). Public Administration, Vol. 83, No. 1, pp. 1-25, Spring 2005. Available at SSRN: https://ssrn.com/abstract=1308145

 

 

 


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Freedom of Information and Universities UK: Could it? Should it? Why Should It Worry UKIP?

UniversitiesUK.svg

Could Universities UK be covered by the FOI Act, as this e-petition asks? I’ll try to answer this, using the old EU joke, to see if it works in theory as well as in practice.

In the UK, universities are covered by FOI (as Vice Chancellors have found out) but UUK is, as of this moment, not. You can’t really ask a body not covered (though this hasn’t stopped people trying). So could and should UUK be covered?

Doubt it…

Most FOI Acts cover ‘public bodies’ and, to very different degrees, private bodies doing work for them. This means legally ‘bodies that appear to be exercising functions of a public nature or who are providing, under contract with a public authority, any service whose provision is a function of that authority.’ Only two Access to Information Acts in the world directly cover private bodies as a whole (South Africa and Nigeria seeing as you asked/need to know in case of some unimaginably obscure pub quiz).

The legal status of UUK looks pretty far from being a public authority. UUK is the ‘voice’ of UK universities made up of the ‘vice-chancellors or principals (executive heads) of universities in the UK’. Legally speaking it is a ‘Company Limited by Guarantee’. This means, according to my brief foray on Wikipedia, it is like a private company but, as pointed out here, ‘a major difference is that it does not have a share capital or any shareholders, but members who control it’.

This status is often used for charities and others to prevent liabilities. According to Wikipedia[1], common types of companies limited by guarantee are:

So, a big fat no in theory?

On a practical level, it takes ages. Gordon Brown (that clever PM who didn’t call snap elections) took two years just to think about who to extend it to. By the time he’d decided and extension was begun, David Cameron (the one who called snap referendums) was in power. A full five years.

Or Could It?

The government can extend the FOI to cover broadly who they want. Section 5 of the Act allows government to re-designate bodies (sorry to get a bit legal), roughly as long as it has a ‘number of definable relationships with public authorities’.

The first actual section 5 extension (in November 2011) designated the Universities and Colleges Admissions Service (UCAS), the Association of Chief Police Officers (ACPO) now known as the National Police Chiefs’ Council (NPCC) and the Financial Ombudsman Service (FOS).

As of May 2018, you’ll be pleased to know, another 15 bodies will be covered including my favourite Independent Monitoring Board The Independent Monitoring Board for the Military Corrective Training Centre and my second favourite development Corporation the Ebbsfleet Development Corporation. The separate Scottish FOI Act has been extended to cover ‘secure accommodation for children and young people, grant-aided schools, independent special schools and Scottish Health Innovations Limited’.

But even if the government want to do it, can they justify it or, to quote George Galloway (rather out of context), are they ‘mad enough to do it?’ A broad moral case to open them up could be made. Many other university bodies in the same ‘regulatory ecosystem’, admittedly of very different legal status, such as UCAS or HEFCE are covered by FOI, as is the Student Loans Company (go on-what are you waiting for?). As the ‘voice of universities’ it also does seem to at least appear to be exercising functions of a public nature’ and has a ‘number of definable relationships with public authorities’. The Public Accounts Committee, among others, has also repeatedly called for FOI to ‘follow public money’ and post-Grenfell there was a further attempt by Private Members’’ Bill to extend FOI.

Even the fact it is a ‘Company Limited by Guarantee’ may not totally exclude it. What’s interesting is that almost all the wikipedia list of examples have been the subject of discussion about extension. In 2009 and again in 2016 (post Kids Company) there was some serious discussion of making charities subject to FOI. Though various investigations have concluded they shouldn’t be, the possibility is still there. Even more fun, Network Rail came to be covered by FOI almost by mistake, when its legal status changed for accounting purposes (you can see what people have been asking here-I now know how many platforms every station in the UK has and the length of all of Reading station’s platforms).

Political parties aren’t covered by FOI in the UK but in some countries, such as Indonesia according to an ongoing discussion, it seems they are. There was a hellish row in India about trying to get Indian political parties covered by their Right to information Act and, seeing as we are talking cricket, pressure to make the Indian Board of Control for Cricket a public body for the purposes of the law.

And so?

Technically, UUK is not covered. For the present, you can ask for ‘material held by a private company “on behalf of” a public authority’. This is very confusing and no one really knows what’s going on but it may mean some UUK material is covered. Moreover, many of the public authorities UUK interacts with, meets and emails-such as all the universities where all the VCs are based, the government departments they work with etc-are covered by FOI.

Even if Theresa May decided, in yet another flush of pointless and futile Brexit distracting incompetent zeal, to get out of the chimney she was in and extend the law (thus robbing yet another Ed Miliband policy), it would take time. One thing to reflect on. The more such bodies are covered, the closer we could get to getting UKIP covered by FOI. Oh, the emails, as America’s new racist in chief would say.

See my piece on VC expenses here and on opening up the private sector. There’s some better legal analysis by FOI man here and a post on wider legal openness developments from Act Now.

[1] Note to my students: don’t ever use or cite Wikipedia for essays. I am doing it ironically.