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Freedom of information and data protection: review of 2013 and preview of 2014

This post looks back at some of the key developments in freedom of information and data protection law in 2013 and highlights the impact these developments (and others that are expected) are likely to have in 2014.

If you are particularly interested in any expected development in this area expected in 2014 (whether set out below or not) please do not hesitate to get in touch with our editorial team by leaving a comment below or by submitting a query through the Ask system.

Data protection reform

It is unlikely that the European Commission’s draft Data Protection Regulation will be adopted until early 2015, due to the European Council’s adoption of conclusions on 13 October 2013. There have been rumours that Great Britain and Germany successfully lobbied for a delay in the Data Protection reforms, until after the next European Parliament elections in May 2014 and the European Commission’s next rotation. For information on all developments relating to data protection, see Practical Law IP&IT: Review of 2013 and what to expect in 2014.

Freedom of information

Several future changes to the Freedom of Information Act 2000 (FOIA) have been announced or suggested, many of are likely to be introduced during 2014. We are not aware of announcements of specific planned changes to the Environmental Information Regulations 2004 (SI 2004/3391) (EIR), but some of the changes to FOIA will undoubtedly have an impact on the EIR.

Changes introduced by POFA

The Protection of Freedoms Act 2012 (POFA) (and the Protection of Freedoms Act 2012 (Commencement No 8) Order 2013 (SI 2013/1906) in particular) made several amendments to FOIA with effect from 1 September 2013, particularly with regard to the release of information in datasets by public bodies. Guidance on these POFA changes has already been published (for example, the Ministry of Justice’s Code of Practice dealing with the disclosure of datasets) and more guidance is likely to follow in 2014.

Other provisions of POFA are also due to come into force during 2014, such as those relating to the retention and use of biometric data, which come into effect on 31 January 2014.

Time limits on historical information requests

The Freedom of Information (Scotland) (Amendment) Act 2013 was passed this year, and one Order under it is already planned for 2014. The Scottish Government plans to introduce an Order to reduce the period of time at which a record becomes “historical” (and therefore publicly disclosable) from 30 to 15 years, with effect from 1 April 2014.

This 15-year period contrasts with the reduction of the lifespan of several FOIA exemptions from 30 to 20 years, which was introduced in England and Wales with effect from 1 January 2013.

Changes following FOIA post-legislative scrutiny

During 2013, the government carried out some of the steps it had committed to in response to the Justice Committee’s post-legislative scrutiny of FOIA, and more are expected in 2014:

  • The government has announced that it intends to address situations where one applicant makes unrelated FOIA requests to the same public authority so frequently that they become an inappropriate burden. The action that will be taken has not been specified, but it may involve blocking these “industrial requests” and it is likely to be introduced during 2014.
  • The above “industrial requests” measures appear to be taking the place of the government’s previous suggestion that it may follow the Justice Committee’s recommendation of making a small reduction in the section 12 cost limit. The government has now stated that it will not reduce the cost limit in 2014, as such reduction “would result in only the most minimal reduction in costs”.
  • The Justice Minister has indicated that the government is considering revising the policy on the use of the ministerial veto, to make the process clearer and to offer reassurance on when it should be used. Any proposed revisions are expected during 2014. For more information, see our Practice note.
  • A new section 22A is expected to be introduced into FOIA by the Intellectual Property Bill during 2014. This will exempt information from disclosure that is to be used for continuing programmes of research intended for future publication, provided that disclosure would, or would be likely to, prejudice a matter that is listed (which includes the programme, or the interest of an individual participating in it).
  • Despite previous indications, the government has stated that it does not currently intend to bring more bodies under the scope of FOIA during 2014, in order not to burden businesses that are providers of outsourced public services. Instead, the government prefers the Justice Committee’s recommendation of using contractual transparency clauses, and strongly encourages authorities and contractors to voluntarily disclose more than is required by FOIA.

ICO publications

In 2013, the ICO carried out a programme of updating much of its guidance, its model publication scheme and many of its sector-specific definition documents to reflect changes to FOIA and the EIR.

During 2014, the ICO has announced that it will complete the revision and update of the remaining sector definition documents. Further updates to linked pieces of ICO guidance are also expected (see ICO: Publication scheme plan for 2013/2014 (June 2013)).

Public sector transparency: open data and open standards

Open Data

The government signed up to the EU Open Data charter during 2013, and also published its response to the Shakespeare review of public sector information.

The government published the Open Government Partnership National Action Plan on 31 October 2013 (see Open Government Partnership: UK National Action Plan 2013). This plan sets out government commitments with regard to Open Data during the next 12 to 18 months, and its key commitments to be expected during 2014 include:

  • The UK government will develop an inventory of all the datasets it owns (published and unpublished), in order to identify the National Information Infrastructure (NII): the datasets which are likely to have the broadest and most significant economic and social impact if made available. Datasets in the NII will be prioritised for release. (The Charity Commission has already announced plans to make data from the public register of charities freely available to download and use by the end of March 2014.)
  • NHS England will work with international governments and civil society organisations to share online their experiences of embedding high quality standards into information and will build an accreditation scheme for doing so.
  • The government will issue a revised Local Authorities Data Transparency Code (which requires local authorities to publish key information and data). A draft code was issued for consultation on 12 December 2013.
  • By 2015, the UK aims to be the most transparent social investment market in the Open Government Partnership and G20, in line with the Open Data Charter principles.
  • The government will manage and capture digital records and it intends for there to be a comprehensive, accessible and timely paper and digital record of UK government publicly available.
  • The government will bring together all of the UK’s anti-corruption efforts under one cross-government anti-corruption plan.
  • The government will create a publicly accessible central registry of company beneficial ownership information. The registry will contain information about who ultimately owns and controls UK companies.
  • On 31 October 2013, plans to publish historic police records were announced (see GOV.UK press release, Plan to publish historical police records announced, 31 October 2013). A high level working group is being established to explore the options for achieving this, and to ensure greater transparency and accessibility of police records in England and Wales. The working group will report with a clear proposal and action plan by 30 June 2014.
  • The government will promote transparency and accountability in all domestic and international government-funded construction projects, including, during 2014:
    • working with others in government and civil society to identify suitable projects for the application of the Construction Sector Transparency Initiative (CoST) in the UK; and
    • using its bilateral and multilateral relationships to encourage the establishment of at least four new national CoST programmes in countries where DFID is working.
  • The government intends to:
    • promptly publish all new primary and secondary legislation on;
    • bring the revised versions of primary legislation on up to date by the end of 2015 and keep them up to date subsequently; and
    • make legislative data available in an open and accessible format to allow people to reuse content under terms of the UK’s Open Government Licence.
  • The government intends to ensure “a strong legislative framework to encourage workers to speak up about wrongdoing, risk or malpractice without fear of reprisal”: this could possibly be ensured through the proposals recommended by the whistleblowing commission set up by Public Concern at Work.

Other government responses to the Shakespeare Commission include:

  • A central transparency team will be set up to review and simplify the governance of open data.
  • Business users of Open Data may have the opportunity to comment on what existing information they would like to be released as Open Data.
  • The government will support the development of a digital skills strategy, the Information Economy Strategy, a part of which is the UK data capability strategy.
  • The civil service will prioritise data analytics skills.
  • The charity Nesta is due to publish in 2014 a report that will explore the data science skills that businesses need and the attributes required of a multi-disciplinary data team.
  • The Department of Business Innovation and Skills will work with the Ministry of Justice and the Information Commissioner’s Office to make re-users of data more fully aware of their obligations.

The Law Commission is reviewing any barriers to data sharing between public sector bodies. Its consultation on the issue closed on 16 December 2013, so we can expect the results of that consultation in 2014. The consultation examined whether the barriers to data sharing come from the law itself too unclear, from a culture of resistance to data sharing, or from a lack of guidance. Therefore, any recommendations resulting from the review may not necessarily involve legislative changes.

Open Standards Principles

On 1 November 2012, the government announced that all government departments will be required to comply with the Open Standards Principles (OSPs), which are an agreed set of standards aimed at encouraging more competition, choice and innovation in the provision of IT services. OSPs were published in April 2013 (see GOV.UK: Open Standards Principles).

On 4 December 2013, the Cabinet Office announced that the government has begun the process of selecting open standards-based ideas to meet document format challenges, and we may see these ideas being developed during 2014.

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