European Parliament approves text of forthcoming EU Regulation on the Free Flow of Non-Personal Data within the European Union

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On 4th October 2018 the European Parliament (by 520 to 81 votes) agreed the text of the proposed EU Regulation on the Free Flow of Non-Personal Data in the European Union. The draft Regulation was proposed by the European Commission in 2017, as part of its Digital Single Market Strategy. The European Parliament, Council of Ministers and the European Commission reached a political consensus on it in June 2018. This adoption by the Parliament brings the regulation one step closer to becoming law. All that remains now is for the Council of Ministers to agree it on 6th November. It will then enter into force by the end of the year, although Member States will have 6 months to apply the new rules. This mean that it will enter into force before the UK exits the European Union in March 2019.

Background to the proposal

The European Commission proposed this regulation as part of its Digital Single Market Strategy.

According to the EU Commission the value of the EU data market in 2016 was estimated to be almost 60 billion Euros, with one study suggesting it could increase to more than 106 billion Euros by 2020.  The new regulation is designed to unlock this potential by improving the mobility of non-personal data across borders. According to the EU Commission, the free flow of non-personal data is hampered by:

  • National rules and administrative practices that restrict where data can be processed and stored. The regulation refers to such rules as data localisation requirements;
  • Uncertainty for organisations and the public sector about the legitimacy of national restrictions on data storage and processing;
  • Private restrictions (legal and contractual and technical) that hinder or prevent users of data storage or other processing services from porting their data from one service provider to another or back to their own IT systems (so called vendor lock-ins).

The aims and outline of the regulation

The regulation only apples to the processing of non-personal electronic data. However, like the GDPR, its territorial scope is wide and includes the processing of electronic data which is:

  • provided as a service to users residing or having an establishment in the EU, regardless of whether the service provider is established in the EU; or
  • is carried out by a natural or legal person (an individual, business, organisation or a public authority) residing or having an establishment in the EU for its own needs.

Processing is also defined in very similar terms to the GDPR – as meaning any operation or set of operations which is performed on data or on sets of data in electronic format, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Unlike the GDPR, it only relates to data in electronic format. Its application is wide and encompasses outsourced data storage, processing of data on platforms, or in applications.

The regulation does not apply to personal data (see below).

National rules on data storage (data localisation requirements)

The regulation aims to ensure the free movement of non-personal data within the European Union by laying down a set of rules relating to national data processing localisation rules.   These are essentially any rules, laws or administrative practices that restrict, prohibit, limit or impose conditions on where data can be processed. The regulation states that such data localisation requirements are prohibited. Member States have 24 months to repeal any such laws.

However, Member States can retain or introduce data localisation rules provided they are justified on the grounds of public security and that the rules are proportionate. In the original proposal Member States would have only had 12 months, but this was extended to 24 months by the European Parliament. Although the main body of the regulation doesn’t define public security, the recitals refer to the fact that the term has been interpreted widely to include both internal and external public security, as well as issues of public safety.

Data Availability for Competent Authorities

The regulation does not affect the powers of ‘competent’ authorities to request or obtain access to data for the performance of their official duties. The definition of competent authority is wide and includes any authority of a Member State, or any other entity authorised by national law to perform a public function or to exercise official authority, that has the power to obtain access to data processed by a natural or legal person for the performance of its official duties, as provided for by Union or national law. It therefore includes central and local government but can also include other organisations that fulfil statutory functions.

This is important, particularly if data is going to be processed in another Member State. The aim is to ensure that the powers of competent authorities to request and receive data, to enable them to fulfil their functions and regulatory powers, remain unaffected by the free movement of data. Consequently, the regulation including a procedure for cooperation between national authorities and the possibility of Member States imposing penalties for failure to comply with an obligation to provide data.

The regulation also establishes a single point of contact for each Member State, to liaise with the contacts in other Member States, and the Commission. The aim is to ensure the effective application of the new rules.

Data Portability

The Regulation also seeks to encourage and facilitate data portability via the use of self-regulatory codes of conduct and certification schemes. The European Commission’s role is to encourage, for example, cloud service providers to develop self-regulatory codes of conduct for easier switching of service provider and porting back data to in house servers. These must be implemented by

Reference is also made to certification schemes that facilitate comparison of data processing products and services for professional users. Such certification schemes may relate to quality management, information security management or environmental management.

Actions to encourage cloud service providers to develop self-regulatory codes of conduct for easier switching of provider and porting data back to in-house servers, which must be implemented within 18 months of the regulation coming into force (mid 2020).

The European Commission is tasked with monitoring development and implementation of these codes of conduct.

The new regulation does not apply to personal data

The regulation concerns non -personal data and does not cover personal data. Data Protection practitioners will no doubt be relieved to know that this means it will have no impact on the GDPR.  According to the European Commission, the two regulations will operate together to enable the free flow of any data-both personal and non-personal “creating a single European space for data”.

In the case of a data set composed of both personal and non-personal data, this new Regulation applies to the non-personal data part of the data set. Where personal and non-personal data in a data set are inextricably linked, this Regulation shall not prejudice the application of Regulation (EU) 2016/679.

The difficulty that this raise will inevitably be a practical one; applying two different regulations to a single data set that contains both person and non-personal data. The regulation rests on the assumption of a clear personal/non-personal data dichotomy, which is practice may be difficult to distinguish.

The impact of Brexit

If the new Regulation enters into force at the end of the year it will apply directly in the UK as per any other Member State. It will remain in force after the date of exit because of the provisions of the EU Withdrawal Act 2018.

After the date of exit, the UK will no longer be a Member State. The regulation effectively allows for any non personal data to be stored and processed anywhere in the EU. It does not extend this ‘right; to storage and processing in third countries. There is of course concern that data localisation rules could be applied against data processors outside the EU, which in turn could have significant adverse business implications for UK data processors.

We are running GDPR and DPA 2018 workshops throughout the UK. Head over to our website to book your place now. New Dates added for London!

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Revised S.45 Code of Practice under FOI

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GDPR has taken the limelight from other information governance legislation especially Freedom of Information.  In July 2018, the Cabinet Office published a new code of practice under section 45 of the Freedom of Information Act 2000(FOI) replacing the previous version.

In July 2015 the Independent Commission on Freedom of Information was established by the Cabinet Office to examine the Act’s operation. The Commission concluded that the Act was working well. It did though make twenty-one recommendations to enhance the Act and further the aims of transparency and openness. The government agreed to update the S.45 Code of Practice following a consultation exercise in November 2017.

The revised code provides new, updated or expanded guidance on a variety of issues, including:

  • Transparency about public authorities’ FOI performance and senior pay and benefits, to mandate the FOI Commission recommendations for greater openness in both areas.
  • The handling of vexatious and repeated requests. The FOI Commission specifically recommended the inclusion of guidance on vexatious requests.
  • Fundamental principles of FOI not previously included in the code, e.g. general principles about how to define “information” and that which is “held” for the purposes of the Act.

In the latter section the code makes a number of interesting points:

  • Information disclosed as part of “routine business” is not an FOI request. Section 8of the Act sets out the definition of a valid FOI request. Judge for yourself if this advice is accurate.
  • Information that has been deleted but remains on back-ups is not held. This goes against a Tribunal Decision as well as ICO guidance.
  • Requests for information made in a foreign language are not valid FOI requests. Again refer to section 8 above. It does not say a request has to be in English!

The code is not law but the Information Commissioner can issue Practice Recommendations where she considers that public authorities have not complied with it. The Commissioner can also refer to non -compliance with the code in Decision and Enforcement Notices.

As well as giving more guidance on advice and assistance, costs, vexatious requests and consultation, the code places new “burdens”:

  • Public authorities should produce a guide to their Publication Scheme including a schedule of fees.
  • Those authorities with over 100 Full Time Equivalent (FTE) employees should publish details of their performance on handling FOI requests on a quarterly basis.
  • Pay, expenses and benefits of the senior staff at director level and equivalents should be published quarterly. Of course local authorities are already required to publish some of this information by the Local Government Transparency Code.
  • The public interest test extension to the time limit for responding to an FOI request (see S.10(3)) should normally be no more than 20 working days.
  • Internal reviews should normally be completed within 20 working days.

Furthermore, the other S.45 Code covering datasets has been merged with the main section 45 Code so that statutory guidance under section 45 can be found in one place. There is also an annex explaining the link between the FOI dataset provisions and the Re-use of Public Sector Information Regulations 2015.

Public authorities need to consider the new code carefully and change their FOI compliance procedures accordingly.

We will be discussing this and other recent FOI developments in our forthcoming FOI Update webinar.

Freedom of Information: New Draft S.45 Code of Practice

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Amongst all the hype about GDPR it is easy to miss developments in other areas of information law.  In November 2017, the Cabinet Office published the revised code of practice (under section 45 of the Freedom of Information Act 2000) for consultation.

In July 2015 the Independent Commission on Freedom of Information was established by the Cabinet Office to examine FOI’s operation. In its report the Commission concluded that FOI was working well. It did though make twenty-one recommendations to enhance the Act and further the aims of transparency and openness.

In its response to the Commission’s report, the government agreed to update the S.45 Code of Practice. The draft code provides new, updated or expanded guidance on a variety of issues, including:

  • Transparency about public authorities’ FOI performance and senior pay and benefits, to mandate FOI Commission recommendations for greater openness in both areas.
  • The handling of vexatious and repeated requests. The FOI Commission specifically recommended the inclusion of guidance on vexatious requests.
  • Fundamental principles of FOI not currently included in the Code, e.g. generalprinciples about how to define “information” and that which is “held” for the purposes of the Act.

The code is not law but the Information Commissioner can issue Practice Recommendations where she considers that public authorities have not complied with the guidance set out in this Code. The Commissioner can also refer to non -compliance with the Code in Decision and Enforcement Notices.

As well as giving more guidance on advice ad assistance, costs, vexatious requests and consultation the code places new “burdens” on public authorities including the following:

  • Public authorities should produce a guide to their Publication Scheme.
  • Those authorities with over 100 Full Time Equivalent (FTE) employees should, as a matter of best practice, publish details of their performance on handling FOI requests.
  • Pay (salaries over £90,000), expenses and benefits of senior staff at director level and equivalents should be published at regular intervals. Of course local authorities are already required to publish some of this information by the Local Government Transparency Code.

  • The public interest test extension to the time limit for responding to an FOI request should normally be no more than 20 working days.
  • Internal reviews should normally be completed within 20 working days.

Furthermore, the other S.45 Code covering datasets will be merged with the main section 45 Code so that statutory guidance under section 45 can be found in one place. There will also be an annex explaining the link between the FOI dataset provisions and the Re-use of Public Sector Information Regulations 2015.

Public authorities need to consider the draft code carefully and decide whether the additional obligations are workable given pressures on resources, especially due to GDPR’s pending implementation.

The deadline for consultation responses is 2nd February 2018.

 

We will be discussing this and other recent FOI decisions in our forthcoming FOI workshops and webinars. For those wanting an internationally recognised qualification the BCS Certificate in Freedom of Information  starts in February 2018 in Manchester and London.

New Local Government Transparency Code Consultation

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The Local Government Transparency Code is due to be updated once again to require local authorities to proactively publish even more information. The Department for Communities and Local Government is consulting on proposals to require councils to publish:

  • more information about land and property assets they hold on the Government’s electronic Property Information Management System
  • existing procurement publication in particular forms
  • the costs of “in-house” service contracts above £500k
  • greater detail about parking charges as well as statistics about the enforcement of parking restrictions
  • information about dealings with small and medium-sized enterprises
  • all information under the Code through a single website landing page

The Code is made under Section 3 of the Local Government, Planning and Land Act 1980 which gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities in England (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) relating to the discharge of their functions.

In February 2015 the code was re issued to require local authorities to publish information about their social housing stock.  Smaller councils, including parish councils have to comply with the Transparency Code for Smaller Authorities, which was published in December 2014.

The consultation began on 12th May 2016. All responses should be received by no later than 8th July 2016.

Give your career a boost by gaining an internationally recognised qualification in FOI. No time/budget to attend courses? Keep up to date with all the latest FOI decisions by viewing our live one-hour web seminars

New Transparency Code for Smaller Authorities

file0001686927828In October 2014 the Department for Communities and Local Government (DCLG), published an updated version of the Local Government Transparency Code . This applies in England only and replaces the previous version. The code requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information (in Part 2 of the code) whilst also recommending that they go beyond the minimum (in part 3 of the code). Read more about the code here.

But what of smaller public authorities and parish councils? On 10th March 2014 the Government launched a consultation on a draft transparency code for such organisations, which will act as a substitute for routine external audit.

On 17th December 2014 the DCLG finally published the Transparency Code for Smaller Authorities. This code applies to the following types of authorities with an annual turnover not exceeding £25,000:

  • parish councils
  • internal drainage boards
  • charter trustees
  • port health authorities

This code is issued to meet “the government’s desire to place more power into citizens’ hands to increase democratic accountability.” However it is published initially as recommended practice, although the Secretary of State told Parliament on 17th December that he intends to make the code mandatory by the start of the 2015 financial year.

The Local Audit and Accountability Act 2014 sets out a new audit framework for public authorities which are currently covered by the Audit Commission regime. Under this new framework smaller authorities will be exempt from routine external audit. In place of routine audit, they will be subject to the new transparency requirements laid out in this code. This will enable local electors and ratepayers to access relevant information about the authorities’ accounts and governance.

Part 2 of the code sets out the information to be published:

  1. all items of expenditure above £100 (see paragraphs 13 – 15);
  2. end of year accounts (see paragraphs 16 and 17),
  3. annual governance statement (see paragraphs 18and 19),
  4. internal audit report (see paragraphs 20 – 22),
  5. list of councillor or member responsibilities (see paragraph 23)
  6. the details of public land and building assets (see paragraphs 24 – 27)
  7. Minutes, agendas and meeting papers of formal meetings (see paragraphs 29 and 30)

The code states that the information specified must be published on a website which is publicly accessible and free of charge. This could be on the authority’s own website or that of the billing authority in its area (district or London borough or unitary council).

Ibrahim Hasan will be discussing both transparency codes in his forthcoming live and interactive one-hour web seminar.

Yet Another Local Government Transparency Code – A Gift for Armchair Auditors?

SwordThe Coalition Government likes “armchair auditors”.

Within weeks of coming to power in 2010, it released all items of local authority expenditure over £500. The Secretary of State for Communities and Local Government, Eric Pickles, said at the time that the move would “unleash an army of armchair auditors and quite rightly make those charged with doling out the pennies stop and think twice about whether they are getting value for money”.

Section 3 of the Local Government, Planning and Land Act 1980 gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities relating to the discharge of their functions. Back in May, Eric Pickles used this power to issue (what was then) a new Local Government Transparency Code. (See my earlier blog post.)

Now, an updated version of the Code , dated October 2014, has been issued. It applies in England only and replaces the previous version. The code requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information (in Part 2 of the code) whilst also recommending that they go beyond the minimum (in part 3 of the code). It follows last year’s consultation on Improving Local Government Transparency: “Making ‘The Code of Recommended Practice for Local Authorities on Data Transparency ’ enforceable by regulations.”

Ministers will imminently make and lay regulations (The Local Government (Transparency Requirements) (England) Regulations 2014)) to make it a legal requirement for local authorities to publish the data specified in Part 2 of the code. Subject to Parliamentary processes, Part 2 should become mandatory by 7 November 2014.

Part 2.1 of the code sets out information, which must be published at least quarterly. This includes:

  • Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.
  • Government Procurement Card transactions
  • Procurement information which includes details of every invitation to tender for contracts to provide goods and/or services with a value that exceeds £5,000, together with any contract, commissioned activity, purchase order, framework agreement and any other legally enforceable agreement, also with a value that exceeds £5,000.

Part 2.2 of the code sets out nine sets of data which must be published annually. This includes local authority land, grants to voluntary bodies , trade union facility time, parking information and senior salaries. In relation to trade union facility time, authorities should publish the amount spent on providing support and facilities to trade unions within their workforces, and specify which unions. In relation to parking charges, categories include the number of off-street parking places and the revenue raised from them; the number of on-street parking places and the revenue they raise; as well as the revenue from parking fines and the number of free parking spaces available.

The main difference between the May and October codes is that the latter has added three datasets to the list of information which must be published: namely information about how the authority delivers waste services, uses the parking revenue it collects and tackles fraud.

On salaries the code requires publication of more information than is currently required under the Accounts and Audit (England) Regulations 2011. Local authorities must now place a link on their website to these published data or place the data itself on its website, together with a list of responsibilities (for example, the services and functions they are responsible for, budget held and number of staff) and details of bonuses and ‘benefits in kind’, for all employees whose salary exceeds £50,000. The key differences between the requirements under this new code and the Regulations referred to above is the addition of a list of responsibilities, the inclusion of bonus details for all senior employees whose salary exceeds £50,000 and publication of the data on the authority’s website. What effect will this have on FOI requests for salary information? Certainly senior figures will find it hard to claim that they have an expectation of privacy when it comes to FOI requests for similar information. (More on salaries here.)

Part 3 of the new code sets out the information, which is recommended to be published, but there is no requirement to do so. This is about providing more detail to information already published under the required category in Part 2, e.g. more details about expenditure, procurement, grants etc. For example instead of just publishing details of expenditure over £500 on a quarterly basis, local authorities are encouraged to publish expenditure over £250 on a monthly basis or better still in real time.

Existing restrictions on disclosing information still apply though. Paragraph 14 of the code states:

“Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.”

However where a qualified exemption under FOI applies, the appearance of the requested information in one of the categories set out in the code will have a big impact on the public interest in support of disclosure.

How should data under the new code be published? The code states that it should be in a format and under a licence that allows open re-use, including for commercial and research activities, in order to maximise value to the public. The Open Government Licence, published by the National Archives, should be used as the recommended standard. Where any copyright or data ownership concerns exist with public data these should be made clear. Data covered by Part 2 of the code must be published in open and machine-readable formats.

The DCLG has also published an accompanying FAQ Guide which gives further guidance on how to practically apply the new code.

Despite Part 2 of the code being legally enforceable soon (see above), does the code have any teeth? The code does not have an enforcer like the Information Commissioner under FOI. Indeed the DCLG has pointed out in the FAQs that it is not the Commissioner’s role to enforce the code. It does though suggest that complainants can issue a judicial review claim in the High Court (unlikely with public funding of such cases being virtually ceased) or complain to the Local Government Ombudsmen. It also suggests they make an FOI request for the same information!

It will also be interesting to see how this new code works with the new dataset obligations under the FOI, which came into force on 1st September 2013 via the Protection of Freedoms Act.

On 10 March 2014 the Government launched the consultation on a draft transparency code for parish councils with a turnover not exceeding £25,000, which will act as a substitute from routine external audit. The Government published its response to the consultation on 6th August and intends to lay regulations to make the code mandatory later on this year. (More for those advising Parish Councils here.)

The Government believes that transparency about how local authorities spend money and deliver services, and how decisions are made within authorities, gives local people the information they need to hold their local authority to account and participate in local democratic processes. It claims that the availability of data can also help secure more efficient and effective local services and open new markets for local business, the voluntary and community sectors, and social enterprises to run services or manage public assets.

Will armchair auditors make use of this new information? Time will tell but readers would be right to be sceptical.

Give your career a boost by gaining an internationally recognised qualification in FOI. No time/budget to attend courses? Keep up to date with all the latest FOI decisions by viewing our live one-hour web seminars.

Veni, Veto, Vici : Court of Appeal FOI Veto Case and its Implications

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What effect will the Court of Appeal’s recent decision on the FOI – and EIR – ministerial veto have on another recent case – the vetoing of the decision to require disclosure of the High Speed Rail assessment review?

On 6 June 2013 the Information Commissioner (IC) served a Decision Notice under the Environmental Information Regulations 2004 (EIR). Section 50(4) of the Freedom of Information Act 2000 (FOIA) gives the IC the power to do so (those powers being extended to the EIR by Regulation 18). The Decision Notice required the Cabinet Office to disclose a Project Assessment Review (“PAR”) report concerning the high-speed rail link, High Speed Two (HS2).  On 30 January 2014 Patrick McCloughin, Secretary of State for Transport, signed a certificate pursuant to section 53 of FOI and Regulation 18(6) of the EIR. The effect of this certificate was that the Cabinet Office was no longer required to comply with the IC’s Decision Notice:

“the decision taken by the Cabinet Office not to disclose the PAR report in response to the relevant request was fully in accordance with the provisions of the EIR, or the Act, as appropriate”

Of course, this exercise of ministerial veto – described as a “constitutional aberration” by the Lord Chief Justice (Evans, R (on the application of) v HM Attorney General & Anor [2013] EWHC 1960 (Admin)), is not unprecedented; the power has now been wielded seven times (twice by the Labour government and five times by the coalition). The minister, notably, was minded to disagree with the IC that the request had fallen to be determined under the EIR, rather than FOIA:

“there is considerable force in the Cabinet Office’s position that the information within the PAR report was insufficiently proximate to the environmental impact of the HS2 project itself to amount to “environmental information” for the purposes of the EIR”

However, he went on to say that:

“it is not necessary for me to determine whether the PAR report is environmental information, because I take the view that the Cabinet Office was entitled to withhold it from disclosure, whether or not it consisted of environmental information”

This is perhaps surprising, because at the time he issued that veto certificate there was an argument, being aired in the Court of Appeal, that the power to exercise the veto does not exist under the European law to which the EIR give domestic effect.

Now, the Court of Appeal has handed down judgment (Evans, R (on the application of) v HM Attorney General & Anor [2014] EWCA Civ 254). The case is being recognised, correctly, as primarily about the specific lawfulness of the vetoing of the disclosure of private correspondence on policy matters between the Prince of Wales and government departments. However, as in the Divisional Court beforehand, one point which fell to be determined was about the general status of the veto power in relation to environmental information. On this point the Court of Appeal held that

“the certificate is incompatible with EU law in so far as the information to which it relates is environmental information”

The court’s reasoning was that, although, the EIR, by Regulation 18, provide for a ministerial veto no such power exists in the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (“the Directive”) which is implemented in domestic legislation by the EIR. Moreover, Article 6(2) of the Directive says, crucially

Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final

And this requirement to have a “final” review before a court or independent and impartial body could not be satisfied by the availability of judicial review of a ministerial veto. Article 6(2) and (3) should be given their natural and ordinary meaning: the right is to have the acts or omissions of the public authority reviewed, but in judicial review proceedings the question becomes whether the accountable person had reasonable grounds for forming the opinion that the public authority had in fact complied with its EIR obligations and, “that difference is not a mere matter of form”. Moreover, and for broadly similar reasons, the veto power offended Article 47 of The EU Charter of Fundamental Rights which provides:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”

So what does this mean for the veto on the HS2 “PAR” request? It certainly appears at the moment that following the Court of Appeal’s ratio in Evans, and to the extent that the HS2 request was for environmental information, that the veto may be unlawful, if (as has been suggested, it is challenged). However, there are two caveats to that. Firstly, the Attorney General has been given permission to appeal Evans to the Supreme Court: it seems highly likely that the general EIR point will be appealed, as well as the overarching specific point about the public law validity of the veto (if the former is not appealed, then it would mean in effect that the government accepts that the EIR fail properly to implement the Directive). Secondly, we must look back to the suggestion by the Minister when issuing the certificate in the HS2 veto that he tended to disagree with the IC that the information in question was environmental. Much, despite what he implied about the lack of need to determine this point, may now turn on this: if the information was environmental then Evans, providing the EIR point is not overturned by the Supreme Court, may well lead to the veto being struck down. If, however, the information was not environmental, and FOIA applied, then any appeal of it will presumably be on domestic public law grounds.

At this point it is probably otiose to start speculating on what will happen with requests which are classed as hybrid ones – namely, those which seek information which is a mix of environmental and non-environmental (as, indeed, those in both Evans and the HS2 case arguably are). All these matters are by no means yet resolved.

Jon Baines, who is Chairman of the National Association of Data Protection Officers (NADPO) and works in local government.

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops and online webinars.

The £200 taxi and the 4 inch fish.

It was December. I’d spent a day training in Edinburgh and the following day was doing a morning in Reading. Bad planning I know but all I had to do was take a train from Edinburgh to London then on to Reading and I’d make the hotel in time for a pizza and a beer. I’d booked in advance and found a first class advance ticket from Edi to Lon for just £31. I was looking forward to a pleasant journey and maybe a quality snack or two.

Things started badly. There was flooding in the air. I know it’s usually on the ground but we live in interesting times.

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The booked train was cancelled. I took the following one and settled down to a slightly delayed journey but ultimately a stuffed crust and a kronenbourg. Then we arrived at Darlington. The floods meant that we had to sit still for 3 hours. It wasn’t much fun. The relief train crew from Newcastle, contrary to all expectations, had forgotten to load the pies so first class refreshments were down to cans of speckled hen and Dolmen peanuts. They were free which did ease the pain.

Further delays as we were re routed meant a very late arrival in London. As the clock ticked round to midnight I started to get worried. Tubes would stop; most busses would stop; I suppose there would be taxis but would Paddington be open this late…

Out of the blue at 0115 in the morning as we crawled though north London an announcement came over the tannoy. “Passengers needing assistance for their onward journey should contact East Coast staff at Kings Cross who would help with taxis.”

Wow…

I walked through the train to get to coach M so I was first off and strode boldly up to an East Coastie.

“Where are you going to sir?”

“Reading”

“Follow me sir”

Minutes later I was in a large taxi with 5 other fellow travellers sliding westwards through slick rain covered streets. My companions were  going to Ealing, Heathrow and other points west but I was the Marathon man so I snickered silently to myself.

Eventually at 3am we arrived at my hotel. For the last 30 minutes I chatted to the driver and he set out a wonderful life enjoyed by London mini cab drivers on the evenings when trains were delayed. They knew from experience and watching the media when the pickings would be rich. When they arrived at the terminus they would have no idea where they would end up but they knew it was a large guaranteed fare.

My driver said he’d done Kings Cross to Portsmouth; Victoria to Leeds, Kings Cross to Bath. The best nights were when Eurostar was delayed. He’d once has a trip to Edinburgh from St Pancras. He didn’t tell me the exact meter reading but the phrase “Four figures guv” said a lot. Some weeks in the winter he did two or three nights like this.

It had been a full train due to the earlier cancellations. There had been standing in first class. I estimated several hundred grumpy and tired passengers had disembarked at Kings Cross and been squeezed in to taxis to finish their journeys. Even with 5 in a taxi at least 100 taxis had been used on that train at £200 a taxi. I wonder how much that cost?

They also refunded the cost of the ticket as it was waaaaaaaaay over their expected arrival. I expect the other several hundred passengers had theirs refunded as well.

Contrast that with the 1703 north from Kings Cross on an equally cold and wet day in February. I’d done another day’s training and was looking forward to my first class offering. (Senior rail card otherwise I’d be in second err…standard class).

The complimentary glass of alcohol. OK. The complimentary peanuts. OK. The hot dish was a disappointment. Fish & Chips. Nonetheless I ordered it.

filetoWhat a disaster. When it arrived 5 minutes later as we crawled past Finsbury Park there it was on a small plate in front of me.

A four inch fish  and with 6 square cut chips beautifully arranged three on top of three others. I looked at it for too long before eating as the waiter asked if I was alright.

“A bit small isn’t it?”

“You can have another afterwards if you want Sir, we’re not busy today”

I declined. There was cheese & biscuits to follow or so I thought.

Wrong. Like the Filet ‘o’ Fish I had just eaten it was a load of pollocks.

“Cheese is on the 1733 Sir”

So there you have it. Phenomenal customer service on a late running train at enormous expense. Very poor first class food on the 1703. Who decides how this train company spends its money? Whose money is it anyway? Would an FOI request elicit this information? If it was a public body we could find out.

Hang on a minute….

 

FOI Can Make You Money

Ibrahim Hasan has done a guest blog post for the Save FOI Blog. He says…

“Many public authorities have expressed concerns about the Freedom of Information Act 2000 (FOI) being “abused” by the private sector. They have cited examples of information requests where they are effectively asked to do unpaid research or to supply facts, figures and statistics, which are then repackaged and sold on for profit with little return for the authorities. Many have taken the opportunity to present evidence to the Justice Select Committee  about the cost of dealing with FOI requests. Although some of the figures cited are somewhat dubious, there seems to be groundswell of opinion that the price of openness and transparency is too high. But how many of the same public authorities have considered the forthcoming changes to the FOI regime which may well assist in defraying some of the costs?

The Protection of Freedoms Bill will provide an opportunity for public authorities to raise much-needed revenue from the licensing of some information released pursuant to FOI requests.

READ MORE: http://savefoi2012.wordpress.com/

Freedom of Information Workshops from Act Now Training Ltd
Venues: London, Manchester, Cardiff, Birmingham
Click here for more details

My cat’s got no nose

Actually he’s suffering from coughing fits, lack of appetite and lethargy (but that’s irrelevant to the story) and my current vet isn’t making an accurate diagnosis. We’ve had several consultations which all require payment usually £20, boxes of expensive cat food for sensitive stomachs at £1 a pouch (Co-op 30p), an x ray (£200), an injection (£35) and a series of blood test (£77). In total we’re approaching £500 but he’s not getting to the root of the problem.

What would you do if your child wasn’t getting the right diagnosis? You’d ask for a referral to a hospital or maybe a second opinion. You might even ask to see your child’s medical records. But what do you do with a cat? There is no cat hospital and as far as I know there are no specialists or consultants who take over where vets get stuck.

I asked the vet for my cat’s medical history so I could transfer to another vet. He said no. Obviously Data Protection Act doesn’t apply here as I know only too well but who owns my cat’s medical records. Could it be the cat? Is it me or is it the vet? I can’t try Freedom of Information although it would catch doctors so exactly how do I get my cat’s personal data? Is it in the gift of the vet? And if he feels that it would affect his commercial interest if he let a captive cash cat move to another provider can he just say no? Who has any rights here? I might have encountered a grumpy old vet but can I appeal to the commissioner? Which commissioner?

Meanwhile my cat is wasting away. I have no confidence in his current medical practitioner but cannot move to another. I can’t access his data; I can’t use any law to force handover of the data. It’s a catastrophe.

Answers please (and awful puns) to info@actnow.org.uk with Tiddles in the subject line.

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