I sent an FOI request to the Cabinet Office about progress on the following open contracting milestones in the UK National Action Plan for Open Government 2021-2023 - GOV.UK see.
FOI request Open Government National Action Plan 21 Feb 2023.pdf|attachment (121.5 KB) and was most surprised at the response. To sum up, a milestone to report on a milestone has been missed, or if it has been achieved, the report is not being made public at this time.
Milestone 1- Achieve 95% of ‘above threshold’ tenders on Contracts Finder Ongoing April 2022 End date March 2023
My question - What is the percentage of ‘above threshold’ tenders being published on Contracts Finder?
Milestone 5 - Issue twice-yearly report on progress in meeting NAP5 Open Contracting milestones
New April 2022 Ongoing
My question - When will the first of the twice-yearly reports be published, and when is the second report scheduled to be issued? Will the report be published on gov.uk?
Extracts from the response I received:
“We are writing to advise you that following a search of our paper and electronic records, we have established that the information you requested is held by the Cabinet Office.”
“The further information you have requested relating to open contracting milestones is being withheld as it is exempt under section 22(1) of the Freedom of Information Act (“theAct”). Section 22(1) protects information intended for future publication”
"After weighing up the competing public interest considerations, we consider it is reasonable in all the circumstances that the information held should be withheld from disclosure until the future date of publication (section 22(1)(c)) and that the public interest in maintaining the exemption outweighs the public interest in disclosure at this time"
Full response here:
CO FOI response_FOI2023_02237.pdf|attachment (242.2 KB)
This appears to be a lazy attempt at stonewalling by the CO. The official headed notepaper puts off most requestors and they don’t even make an effort with the first refusal. This kicks the can down the road another two months whilst you fully exhaust their internal review process. (See FOIA s.50(2)(a). CO prevarication is well documented.)
For s.22 to be correctly engaged, the CO must have planned to publish this information prior to your request. They can’t apply it retrospectively. (An old joke best illustrates this. Man calls council to ask if there is a preservation order on the tree in his back garden. After a pause, the council reply, “there is now sir.”) If they become involved later, the ICO will want evidence that the CO had pre-existing plans to publish. Proving this is difficult, however the ICO only need to establish this on the balance of probabilities.
If s.22 is correctly engaged it is a qualified exemption and the CO must carry out a Public Interest test. They must identify all the pros and cons of disclosure then balance them. Looking at the reply, the only reason they give for not disclosing the information until they publish it later is the cost efficiency in how they choose to publish information. That argument is non-sequitur. You are requesting the information is disclosed to you. You are not asking them to bring forward the date they publish it on their website. (The root of this conflation could be the Tribunal’s decision in S v ICO and GRO EA/2006/0030 This established the principle that disclosure is purpose blind, viz disclosure to an individual is no different to disclosure to the world at large.)
s.10 requires the CO to reply both promptly and within 20 days. Those are two separate requirements. I don’t understand how a request made 21 February replied to on 4 April meets either. If the ICO become involved, they will want the CO to provide evidence about why it took so long to reply. The final paragraph on page 2 and the first two paras on page 3 strike me as a copperplate lazy stonewall response. The ICO might’ve seen a few more responses and be able to arrive at a more objective view on whether that is the case. They may also have seen evidence of this type of response from the CO before.
Request an internal review into both their application of s.22 and s.10.
firstname.lastname@example.org (if you want to discuss outside the forum.)
Thanks James. Very interesting. I will bear this in mind if I do decide to escalate.
Their response was surprising, considering I was asking about progress on transparency milestones in the Open Government National Action Plan that expires at the end of this year.
Had the milestones been met, I expect I would have received a more helpful response, so its safe to assume that they haven’t and they may be feeling rather exposed at the moment as the OGP Resolution of the Criteria & Standards Subcommittee regarding the Participation Status of the United Kingdom in OGP dated December 20, 2022 says:
"Considering that the government of the UK has now acted contrary to the OGP process for three
consecutive action plan cycles as outlined above, and striving to maintain a consistent and fair
approach to enforcing OGP requirements asked of all participating countries, the Criteria &
Standards Subcommittee hereby resolves to maintain the UK under Procedural Review until the
IRM concludes that it has met the minimum requirements in the implementation of the 2021-23 Action
" Furthermore, to prevent being recommended for inactivity to the full Steering Committee, the C&S Subcommittee asks the UK government to provide evidence of meeting the minimum requirements during implementation of the 2021-23 Action Plan by 30 June 2023.
Failure to do so would result in the C&S subcommittee automatically recommending the full Steering
Committee to place the UK under inactive status"
Not a good look is it?
What James says about the section 22 FOIA exermption is correct. However, the first milestone that Chris has asked about was due to be achieved at the end of March 2023 and his FOI request was dated February 21 2023 - i.e.5 weeks before that milestone date. There’s nothing to stop the Cabinet Office answering by providing the figure as it was at the date of the request or Chris complaining about a refusal. But in this kind of situation it may be better to hold off making a request until the deadline has passed and the Cabinet Office has had a reasonable opportunity to report on compliance with the relevant milestone or group of milestones and has failed to do so.
On the 2nd request: an FOI request only has to be answered if the information exists in recorded form. So if they have a record of some kind saying “we are planning to publish the first report on [date] and the second on [date]” they should disclose it. If they haven’t got round to specifying a date in their recorded exchanges, they would be able to say that the information is not held. A separate question is whether they would be required to publish a date which is recorded but has been missed. Strictly speaking the request does not ask about past dates, only future dates (“when will…the reports be published”), so only recorded future dates may have to be disclosed.
Campaign for Freedom of Information
@MauriceFran What the Cabinet Office should be doing is helpfully set out in the OGP NATIONAL
HANDBOOK Rules + Guidance for Participants
Accountability and Information Provision
Access to relevant information is essential for enabling participation and ensuring accountability throughout the OGP process. OGP members should follow the principle of maximum transparency, whereby relevant information is published and disseminated proactively" [my emphasis], in the most relevant format(s) and through the most appropriate means in order to reach as much of the population as possible. This can help raise awareness of OGP processes generally and opportunities for participation. This can also help foster accountability because the public can scrutinize and review OGP-related information and ask questions from responsible ministries involved in the OGP process." [my emphasis]
The fact that the government is not proactively publishing information about its progress on all of the milestones in the NAP is not open government and a and is not following best practice set out in the OGP Rules and Guidance which recommends:
An OGP website can be a stand-alone website or an OGP subsite/web page on a government website where all information related to the country’s OGP processes, outputs, and outcomes are published. Based on the experience of member countries, it is helpful if the website or page:
• Is searchable, so information can be easily located and retrieved;
• Contains information and documents in non-technical language that is as easy to understand; and
• Has features that allow the public to comment as progress updates.
The following information is useful to publish on the website:
a. Leading and participating government agencies and their contact information
b. Lead agency and government point of contact for OGP and their contact information
c. OGP processes and opportunities for participation
d. Meeting agendas and minutes
e. Civil society organizations that participate in the MSF
f. Regular updates (at least every six months) on the progress of commitment implementation, including progress toward milestones, reasons for any delays, and next steps (Ideally, this would be a public dashboard to corroborate the document repository.)
g. Other relevant documents that pertain to the country’s open government processes
It certainly needs to be highlighted in the Independent Reporting Mechanism final report on the NAP 5 and raised during the co-creation process for NAP 6. @KevinKeith FYI.
Attached is the U.N.'s special rapporteur’s report on justice in the U.K. You will note its significant concerns. It appears transparency of contracts given by government is just part of a wider malaise… You may wish to add comments to the U.N. about lack of transparency being absent from our governance, adding this absence possibly/probably will give give rise to further complaint by the public. https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27487
Thanks @classic I’ll check it out