The weekly newspaper, the gagging order that wasn’t … and some pointless regulations

Buxton – home of water …. and a bit of a murky row.

Regular readers of this blog will know that I rarely miss a chance to ‘name and shame’ a council or public authority which is being less than true to the spirit of Freedom of Information.

Main offenders in the past have been Kirklees Council (whose council leader likes to be very involved with FOI), NHS North West, the pointless extra tier of government management which seems to think any sort of accountability to the public is beyond it, and Cheshire West and Chester Council, which they planned to charge for FOI until being told that, er, that wasn’t allowed.

So when I saw a story, first on the Newspaper Society email newsletter, and then on Holdthefrontpage, about a council in Derbyshire – High Peak – apparently refusing a member of the public permission to share information he obtained under FOI, the red mist was in danger of descending. The green ink was very nearly spilt.

The Buxton Advertiser accused the council of an ‘Orwellian attitude’ over the council’s stance, described by HTFP as a ‘gagging order’. But had the council actually told the man in question – Edmund Bradbury, who asked about what was happening to empty council offices – he couldn’t share the information?

As far as I can tell, no.

At the end of FOI responses from many authorities you get a standard paragraph or two pointing out that you don’t have the right to reuse the information – beyond your own personal use – without permission, courtesy of the Re-Use of Public Sector Regulations 2005. The best explanation I can find of this on a council website comes from North West Leicestershire Council, which states:

The Freedom of Information Act 2000 (FoI), and the Environmental Information Regulations (EIR), came fully into force on 1st January 2005. These 2 pieces of legislation provide anybody in the world with a general right of access to most recorded information held by Public Authorities, subject to a few exemptions.

However, although FoI and EIR give applicants a right of access, they do not provide them with the right to re-use any information which is disclosed to them.

Basically, it is a way of public bodies retaining some sort of control over the information they own. I’ve seen it at the foot of many FOI requests, but have never thought to seek permission to use the information.

It appears in this case that Mr Bradbury then sought council permission to share the information. The council appears to have spent six weeks failing to respond to his request, but suddenly got round to it when the Advertiser started making calls on the issue.

So there’s a subtle – but important – difference here. I don’t agree with Buxton Advertiser editor John Phillips that it was a sort of gagging order. That would have been the case if they’d said no. Instead, Mr Bradbury was essentially a victim of his own honesty in that he played by the rules, and a victim of the snails pace councils often work at. They were probably shocked someone actually asked.

The issue here is the existence of the Re-Use of Public Sector Regulations 2005. In theory, a local authority could release information to a journalist under FOI but say it can’t be used by them. The excellent Paul Gibbons, the man behind the FOIMan blog says that, in theory, they could, but it woudn’t stand up to much scrutiny.

That, in part, is because under copyright legislation, there is an acceptance under copyright law that journalists can republish information they receive (Emily Goodhand, aka @copyrightgirl blogs on this on FOIMan) for the purposes of news reporting.

But why should regular members of the public have to ask permission to share information? My advice to anyone who asked me would be to tell them to ignore the ‘don’t pass it on’ rule – after all, any request submitted through theyworkforyou is instantly visible to anyone at all. In 2010, the Information Commissioner’s Office ruled that the fact information was instantly available to many without prior permission wasn’t a reason for the information not to be disclosed to Whatdotheyknow.

The irony here is that the body which refused to release the information to Whatdotheyknow was the House of Commons – hardly in keeping with the spirit of ‘right to know’ that MPs profess to sign up to.

Emily Goodhand dug up this quote from an ICO ruling which stated:

“Disclosure under FOIA is effectively an unlimited disclosure to the public as a whole, without conditions*” but which starred conditions go on to say “in the Commissioner’s view, information under the Act or EIR can still be subject to copyright restrictions”.

If, as an industry, we want to take up the crusade on access to information, it shouldn’t be through creating rows where perhaps they never really existed.

We should be asking authorities why they aren’t signing up to the Open Government Licence to information which works on the assumption that any information which has been published on a website is free to be reused – and which, in my opinion, should include FOI material published in disclosure logs on the websites.

Anything else simply creates the impression that a council or public body has something to hide – and in this case, I suspect that wasn’t the case at all.

 

 

2 comments

  1. Excellent write-up of a really baffling anomoly.

    If a Council (or whoever) DID say ‘no’ but the asker of the question did disseminate the answer anyway, exactly what rule has been breached and what sanctions are at the Council’s disposal? An answer to that question might help complete your survey and even to raise the fog.

    More generally, congratulations on the blog – it must require a good discipline to maintain it.

  2. Cheshire West & Chester Council also sought to ban me from accessing freedom of information and my own personal data protection data in October 2009. The ban lasted 20 months and it took the intervention of Hugh Tomlinson QC for them to relent.

    This certainly gave ME the distinct impression they had “something to hide”.

    I have since asked for some specific information but the answer came back that it “wasn’t held”.

    So evidently, there was no need for seeking to ban me in the first place.

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