Today (Monday 20^th February), a group of us are formally launching a new campaign. As the title of this post suggests, we are campaigning to #saveFOI.

This week sees the beginning of the long heralded post-legislative scrutiny of Freedom of Information promised by the Coalition Government last year. On Tuesday morning, the first witnesses, including the head of the Campaign for Freedom of Information, Maurice Frankel, will be appearing before the Justice Select Committee.

Last week the Committee published the written evidence that it has received. What is striking about this evidence is how many public authorities have called for restrictive amendments to the Freedom of Information Act. Some have called for charging to be introduced. Some have suggested that the cost limit for answering requests should be brought down, so that more demanding requests can be refused. Others have even suggested bringing in whole new exemptions for information that they hold.

This comes hot on the heels of comments from the outgoing Cabinet Secretary Lord Gus O’Donnell who has been openly critical of the Information Commissioner’s decisions in respect of Cabinet minutes. Others will be aware that our former Prime Minister Tony Blair considered himself a “nincompoop” for introducing FOI. There have been plenty of others queuing up in recent months to add their voices of complaint to the chorus of disapproval of this legislation, only 7 years after it came into force.

It is hard to think of another requirement on public bodies that attracts such venom and open hostility. And these views are diametrically opposed to the views of most people outside the public sector who welcome this important tool for holding public authorities to account.

Even some inside Government are suspicious of the motives of the Act’s government critics. The Minister responsible for FOI in the Ministry of Justice, Lord McNally, commented in a recent House of Lords debate that:

 “…when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.”

And yesterday, writing in the Observer, the Information Commissioner himself made it quite clear where he stands. He dismissed Lord O’Donnell’s criticisms, and dispensed with suggestions from universities that they need a whole new exemption for research data.

Nevertheless, the mood music suggests that there is a desire to contain this young legislative upstart. Some of us even inside the public sector feel very strongly that to do so would be a backwards step. Yes, some individuals abuse the right to access information. Some requests are expensive to answer. It can feel personal when a request affects your work. But the overall benefits, whilst difficult to quantify in hard numbers, far outweigh the problems.

It has forced public authorities to open up in a way that would have been unimaginable a decade ago. It has allowed groups from protesters against library closures to disability rights campaigners to make their case to Government on something approaching an equal footing. It has exposed unfairness and inequality in our country. I believe it is starting to make an impact on the effectiveness and efficiency of some public authorities. In short, it makes the UK a fairer country to live in.

And the UK doesn’t exist in isolation. Countries across the globe are adopting FOI legislation. As Nigeria and the Philippines debate the opening up of their governments, is it right that the UK can be considering reducing the rights of its citizens?

So we are standing up to make the case for FOI this year. And we want as many people as possible to join us. So please take a look at our campaign website and consider how you can help us to #saveFOI.

Paul Gibbons is creator of the FOI Man blog and is @foimanUK on Twitter. 

Libel

• Inforrm>>Case Law: Farrall v Kordowski – assessment of libel damages http://bit.ly/h1OdcC
• LSE MediaPal>>’Ordinary person’ vs ‘the Press’: the unmentioned ‘other’ problem with libel law http://bit.ly/ielK6G
• Press Gazette>>Victory in sight for Hardeep Singh in libel tourism battle:  http://bit.ly/hTIJKU
• Inforrm>>News: Hardeep Singh libel claim, appeal abandoned? http://bit.ly/eYQXxs

Contempt of court

• Media Guardian>>Daily Mail and Sun accused of contempt over online photos http://bit.ly/gqRkbq

Privacy

• Inforrm>>Reporting Privacy: JIH “Privacy Madness”? – Mark Thomson: http://bit.ly/g0tohy
• Press Gazette>>Sportsman wins media gagging order appeal: http://bit.ly/eeRv7r
• Inforrm>>Case Law: JIH v News Group Newspapers, anonymity regained – Edward Craven: http://bit.ly/hA1KtI

Costs

• Out-Law.com>>Jackson slams piecemeal civil litigation funding proposals: http://bit.ly/epVmLp

Injunctions (misc)

• Inforrm>>News: Climate change sceptic fails in BBC injunction application http://bit.ly/ekerzx
• Press Gazette>>BBC sees off climate-change film legal challenge:  http://bit.ly/ifFwIU

FoI / Wikileaks

• Inforrm>>News: ‘Freedom of Information in the Wikileaks Era’ http://bit.ly/hUuOh9
• Andrew Murray’s full talk from Monday’s Wikileaks event at BICCL http://bit.ly/gIjMZh
• Greg Mitchell>> “Cablegate” to Date: A Unique List of What’s Been Revealed

Phone hacking

• Press Gazette>>PCC forms new phone-hack working group http://bit.ly/dKFN8X
• Inforrm>>Opinion: “The PCC’s working group on phone hacking – too little too late” – Martin Moore: http://bit.ly/gjyWlt

Crime maps

• Out-Law.com>>ICO approves crime maps but warns of possible privacy dangers: http://bit.ly/hrE9QJ
• http://www.police.uk/

Media / advertising regulation

• IPMediaLaw>>Comment Is Free-OFT crackdown on Celebrity Twitter Endorsements: http://bit.ly/heJA8B

Court reporting

• Press Gazette>>MPs proposes bill on pre-conviction crime anonymity  http://bit.ly/exbFPS
• Media Guardian>>MPs want to ban the naming of suspects to avoid media feeding frenzies: http://bit.ly/fTmHRu
• Press Gazette>>Court of Appeal quashes murder case reporting ban http://bit.ly/gEsk13
• Alison Gow>> Court orders that make court reporting redundant: http://bit.ly/gdgYge
• UK Human Rights Blog>> Supreme Court welcomes Tweeters
• The Register>> UK’s Supreme Court greenlights Twitter usage

One to mull over:

• One woman’s account of her defamation action against the Daily Mail. Also see comments on Roy Greenslade’s blog.

Know about a media law/ethics event? Let me know and I’ll put it in the round up and on a soon-to-be-written events page. You can find a full stream of aggregated media law news via @medialawUK on Twitter; and Meeja Law tweets go out via @meejalaw. Contact me via @jtownend or jt.townend [at] gmail.com.

Julian Assange is more than capable of dominating a room he’s not actually in, showed Monday’s event at the British Institute of International and Comparative Law, ‘Freedom of Information in the WikiLeaks Era’.

His lawyer Mark Stephens, however, was there to articulate (if not represent) Wikileaks’ and Assange’s position and activity as he understood it.

A panel, chaired by legal commentator Joshua Rozenberg and also including David Banisar (Article 19), Chris Bradshaw (Ministry of Justice), Andrew Murray (LSE), and James Leaton Gray (BBC) alongside Stephens, discussed the ethics, role and legal implications of Wikileaks and similar operations.

Wikileaks good or Wikileaks bad, Rozenberg asked at the end. Stephens had already left the room by that point, but the audience could probably could guess his answer.

“Both,” said Article 19′s senior legal counsel David Banisar. Bad, in the context of the UK, said the MoJ’s Bradshaw. “Bad” said Murray. “Inevitable,” said the BBC’s Leaton Gray.

But prior to that question, the Wikileaks issue was fleshed out by the panelists with several key questions emerging:

• Can the FoI Act prevent the need for leaks? Where are its limitations?
• Who is a journalist? What is a journalistic operation?
• How to make the balance between right to freedom of expression and right to privacy?
• How should/could Wikileaks be regulated?
• How can Wikileaks’ material be verified?
• Is Wikileaks a “source” or a commercial partner to the media organisations it works with?
• Do public bodies have a right to keep parts of the decision making process private?
• Do states have a right to privacy?
• What are the legal issues arising from the emergence of ‘citizen’ journalism?

Article 19′s David Banisar put Wikileaks into context: while it had “garnered the public imagination” and done things differently, the organisation was not the first online whistleblower, and he cited Cryptome as an early example. “If you were in the techie world, you knew about Cryptome.”Additionally, the “end of government as we know it” had been slightly exaggerated, he said.

Banisar, who worked for Privacy International before joining Article 19, said that Wikileaks came under a media umbrella, but also acted as an intermediary between people with information, and the media.

One successful outcome has been Wikileaks’ influence on media method, said Banisar; Al Jazeera’s Palestine Papers have provided actual documents, as opposed to analysis of the documents. That’s a “step forward” he said, and gives “context and understanding”.

Chris Bradshaw, a lawyer in the Information and Human Rights team in Legal Directorate of the Ministry of Justice, argued that leaks are generally harmful and government information should be accessed through Freedom of Information mechanisms.

He set out the Freedom of Information process, stating that FoI officers have a duty to advise and assist people who make requests. The audience were treated to some stats: of 17,822 requests in 2009, 59% had been disclosed in full, and 29% withheld in full. The most common reason for withholding data was its personal nature.

Ministers and officials need to be able to discuss issues in private, with “thinking space”, he said. There is an effective route for disclosure through FoI, and large-scale unauthorised leaks risk adverse effects, he concluded.

Andrew Murray, Reader in Law at the London School of Economics pursued a rather more academic line, examining Wikileaks’ social basis and which legal and moral norms apply.

Referring to the central tension between right to freedom of expression and right to privacy, he said that social norms play a role in how material is treated by the media. Media illegally obtained via phone hacking is rightfully vilified, where as material such as Bradley Manning’s alleged leak, is repeated in newspapers.

Murray also touched on the advent of digital publishing, where anyone can be a journalist but do not necessarily want to obey journalists’ publishing rules.

In recent times, the government has employed more and more communication directors, he said, with spin as the “natural response” to attempts to invade government privacy.

Former journalist James Leaton Gray may work at a media organisation, but he had his gamekeeper hat on for the debate, as head of the BBC’s Information Policy and Compliance department.

In terms of his organisation’s duty under FoI, he thought it was the right of the BBC and other public broadcasters to have a private space to consider significant editorial matters.

Reminding us that Hansard began as illegal scribblings in the Gallery, he said that Wikileaks was another test of the freedom of expression balance.

While digital technology had improved accessibility and speed for releasing information, it was a retrograde step for providing context, he argued.

“I still want a journalist to act as a filter for me,” he said – not least because he didn’t want to sift through 250,000 documents online.

So, to Julian Assange’s lawyer, Mark Stephens, left to present Wikileaks’ approach. Wikileaks is more responsible than anyone really wants to recognise, he said (answering a later question, he reported that Assange had refused an offer of a couple of million pounds for the cables – from someone in the Middle East).

In his talk, Stephens pointed out that the US Embassy Cables had been available to three million people before the wider electorate were given access. Assange ran all the cables past the D-Notice committee and the Americans, he said.

“They were offered the opportunity to identify any single cable,” he said, which would fail the test of ‘we will not endanger life or an ongoing operation’. “That’s the touchstone test that the D-Notice committee has.”

All of the cables passed that test, he claimed: “There were some exceptions and they were taken out and not used.” One story which the Americans didn’t want published concerned bombing in Yemen. This caused a big discussion between the media partners [The Guardian, the New York Times, Der Spiegel, Le Monde and El País], he said, but in the end they decided it was of such importance to the public that they should publish.

“No harm came as a consequence of that but one could see the point the Americans were making. There was a dialogue going on.”

The whole process, Stephens argued, had been “sensitive” and “sensible”. “Julian wanted to take longer over the redactions process than the Guardian did.”

Stephens raised a very interesting issue [and pertinent given news of Assange's new relationship with the Telegraph] – that of media exclusivity.

“What’s interesting you have on one side of the fence a journalist who really wants the scoop, they want the exclusive. Now that doesn’t necessarily fit with someone who wants, on the other hand, freedom of information, or indeed, data in the public domain.

Assange wanted more media partners, he said. “There were a number of journalists who felt they had a sort of given right to an exclusive relationship with Julian.”

“I understand they do feel very proprietorial about their relationships, but for Julian it’s about spreading the data, spreading the information, and that is a difference.”

Stephens, echoing Banisar’s earlier point, questioned whether leaking culture was so terribly different from how it was before. Newspapers have always offered opportunity for people to deliver brown paper envelopes; now it’s no longer just dog-eared photocopies, but discs full of data, he said.

One thing was clear: it was the anonymous electronic drop box that made Wikileaks different. And it looks like it’s a technique that could be here to stay – none of the panellists suggested otherwise.

As is usual, perhaps the point, at these type of events, more unanswered questions were raised and more difficult tensions identified: not just that of Article 8 vs Article 10, but between the varying motives of state/s, journalists, leakers – and their intermediaries.

Francis Davey, an independent barrister who advises technology and media companies in computer and internet law, raised an interesting issue on his blog a couple of weeks ago.

What happens when a Freedom of Information response is libellous? He refers to the site WhatDoTheyKnow.com, which has built a system to publish WDTK users’ requests and resulting communication between the user and the public body in question.

Naturally, the site has to be careful about the requests and the additional annotations made by third party commenters, but what if a libel is contained within a report released under FoI? Davey writes:

The difficulty is the classic chilling effect. WDTK are in no position to decide whether the briefing report is libellous, or whether their publication of it is defensible under some general libel defence — for example under public interest “Reynolds” qualified privilege. Unlike the commercial news media, who can take a view that profit made from publication is offset by the occasional loss of a libel suit and have the funds to insure against defamation claims, WDTK is a charity funded, volunteer run site. They are in no position to take the risk which means they cannot as robustly defend the public interest in freedom of information as they would like.

He makes several other points which are definitely worth a read in full, and while Davey believes that common law might cover this situation, he proposes adding an exception for the publication of material released under FoI to part II of Schedule 1 of the Defamation Act 1996.

I’d be interested to hear from media lawyers with any thoughts on this issue.

VB reports that the chief exec responded:

• responding to the journalist in full by their deadline or giving a ‘holding statement’ until a full response can be given
• being helpful, polite and positive
• never saying ‘no comment’, as this can sound as if the council has something to hide
• if there is a major hostile enquiry which other media may get hold of, share it with the team and work out the line to take
• ensuring any statements to hostile enquiries are cleared – and send them in writing
• building up a set of ‘experts’ across the council who can brief journalists directly
• ensuring the appropriate council spokesperson is available for interview and is fully briefed
• making sure officers and members are aware of media guidelines and media protocol
• building up facts and figures and background information for big stories
• monitoring response times and cuttings to evaluate how effectively the enquiry has been dealt with.

I’d be interested to hear from other local news journalists who may have encountered similar problems. What advice do you have for the VentnorBlog?