Local
Government
50. In its October 2004 submission to the Committee
the DCA admitted that the picture across local government was
uneven—a view previously expressed to the Committee in May
2004 during evidence by the Information Commissioner. The DCA
stated that:
Some local authorities have gone to great lengths
to co-ordinate with neighbouring authorities on implementation.
Preparation by smaller district councils is good but less advanced.
However, the Department is working with the Office of the Deputy
Prime Minister to encourage greater engagement at political and
chief executive level.[64]
This clear picture of resolve was not the impression
of our local government witnesses, who reported to be unclear
about where responsibility lay and eager for clear guidance to
emerge from somewhere. Furthermore, the Information Commissioner's
office highlighted rather more concerns about the state of preparedness
in local government in its October 2004 submission to the Committee.
The picture here remains variable with concerns
about the apparent lack of preparation in many local authorities,
but some impressive examples of emerging good practice. In some
areas with two tiers of principal councils the opportunity has
been taken for county and district councils to co-ordinate their
activities, facilitating a joined-up and consistent service to
requesters.
We have had much experience of local authority
officers who have been given responsibility for implementing FOI
expressing concern that they struggle to engage the interest of
their corporate leaders, both chief officers and elected members.
In many cases the legal and practical issues of compliance are
recognised by the senior managers responsible and front-line staff
have been trained. However, the wider implications of a cultural
shift towards greater transparency and accountability are not
appreciated.[65]
51. The Local Government Association (LGA) represents
the local authorities of England and Wales.[66]
Like the medical sector, local government presents particular
challenges for FOI implementation because of the diverse range
of bodies and activities covered. Local authorities vary in size
from those that employ 30,000 staff and have a gross revenue of
over £2 billion to those that employ 150 staff and have a
gross revenue of £30 million.[67]
52. The LGA has supported local government preparation
for FOI through a number of activities including: participation
in the Lord Chancellor's Advisory Group on implementation of the
Act; consultation and discussion with government departments (specifically,
the DCA, and the Office of the Deputy Prime Minister), and the
Information Commissioner on implementation issues; delivering
advice (together with the Information Commissioner) to local authorities
on developing publication schemes and working with a 'pilot' group
of district, county and single-tier local authorities on implementation
issues. In association with the Constitution Unit, University
College London, the LGA also published two practical guides to
the Act for local authorities: Freedom of information—a
practical guide (published 2001) and Delivering freedom
of information (published February 2004).[68]
53. Another body supporting local government in preparing
for implementation is the Improvement and Development Agency (IDeA)
which was established by and for local government in April 1999.
It acts at the national level to provide a focus for the implementation
of local e-government and to enable local authorities to co-ordinate
and share progress. It also champions the interests of local government
with central government, suppliers and other sectors. The IDeA
told the Committee that it had supported local authorities preparing
for FOI in a number of ways including providing: an e-learning
package on FOI; an FOI page on the IDeA Knowledge website; a topic
briefing and resource pack on FOI and; free advice and support
to individual authorities by either the e-government strategic
advisor for data legislation or by a peer group of local authorities
which have offered to help other authorities not as advanced with
FOI as themselves.[69]
54. According to survey results provided by the LGA
from earlier in 2004, only 4% of local authorities expected to
be ready by 1 January 2005.[70]
This picture emerged from an annual self-assessment statement
on local authorities' implementation of electronic government.
The 2003 statement, for the first time, included
a question on the authority's readiness for the implementation
of FOI.
When these returns were collated and analysed
by the IDeA in April 2004, it was found that, out of the 372 returns,
only 15 (4%) local authorities had assessed themselves as 'green',
meaning that they expected to be able to fully comply with FOI
by January 2005.
189 (51%) authorities identified themselves as
'red', meaning that they were in serious danger of not being ready
by that time; and 70 (19%) declared themselves 'amber', meaning
that they thought there was some risk that they may not be able
to comply. The remaining 98 (26%) responded as 'black', meaning
that they either felt that the Act had no relevance to them or
that they were waiting for something else to happen before they
could progress with implementation.
IDeA followed up the 15 'green' authorities in
an attempt to identify good practice and to share it with other
authorities. At that stage, it became apparent that there had
been some ambiguity in the wording of the question and approximately
half of the group re-classified themselves as red or amber.[71]
In oral evidence Dr Lydia Pollard of the IDeA explained
that this referred to being confident that their various systems
(including records management for example) would allow local authorities
to meet the 20-day response time.
I think when they said 4% they meant being fully
compliant in terms of having an electronic records management
system, in terms of having logging and tracking systems and complaints
systems in place and that is why the vast majority of authorities
said that they did not feel they would be ready. The majority
still feel that they will not have an electronic records management
system in place by then. I think they feel that somehow they will
be able to deal with the enquiries but that they will have to
do it manually. So their main concern is the time that it will
take them to do it and the resources they will have to put in.[72]
55. The LGA described some of the particular problems
with which they have been faced, notably records management and
complex ageing IT systems. Of great concern has been the late
arrival of guidance from the centre, which had often arrived in
the middle of process already begun by local authorities. Two
problems were described by Ms Faith Boardman, Chief Executive
of Lambeth Borough Council:
The first is a practical one, which is the nature
of a local authority's business, because we provide something
like 300 different services. The records management is legitimately
different in that it is governed by statutes between all of those
different services. I think we are peculiar in the public service
in terms of the complexity of the services that we do and that
certainly knocks on into issues like IT. We are moving reasonably
swiftly in our case from a situation where we have had no IT in
some services, very old IT in others and more modern even further,
but there is a business need which all local authorities are tackling
to join those systems up and modernize them. That is a very big
issue and takes several years. As that comes through then I think
the practical position will ease considerably. The second issue
that I think we have had in practical terms is the understandable
difficulty in getting guidance out to us. Obviously, in terms
of actually setting out the detail of the processes and procedures
and indeed the detail of the training, we do need to have that
guidance in front of us. Very often, because of the timetable
that we have been trying to follow, we have received them when
we were part-way through doing that phase of the work and they
have proved useful, but often it is as a check-list in terms of
what we have been doing rather than being there at the start of
each phase.[73]
56. In its written submission to us, the LGA argued
that Government and ICO guidance on FOI implementation was better
suited to central government departments which in turn were supporting
their relevant public bodies (such as schools and hospitals):
Some authorities expressed concerns that central
government did not understand how local authorities operated.
When looking for guidance and advice we referred
to other government departments who are supporting their users
in a much more efficient way, e.g. DfES for schools and the NHS.
DfES understands that information required should be in plain
English, written for people who do not have a legal or records
management background, that it is all about the business process
and not the functional requirements of an IT system.
S46 code[74]
seemed abstract and used terms LA officers don't understand. It
seems to be based on culture and business needs of civil service
legal departments. Local government records reflect the degree
of improvisation needed to manage large organisations with constantly
changing structures. Certain services (e.g. finance) have a completely
different approach to information storage, where the language
of 'file closure' or the idea of discrete files for items of information
are not suitable.[75]
Local authorities were also concerned about the timescales
required by the Act and the true costs of complying with a request,
and overall, the LGA concluded that the level of readiness for
FOI among local authorities "varies greatly".[76]
Our witnesses from local government believed that 90-95% of local
authorities would meet the deadlines for straightforward enquiries.
Dr Pollard said that if there are: "complex enquiries which
require information from several different sources and not a single
service then I think [local authorities] may struggle to meet
the 20 days".[77]
Points of Concern
57. The LGA's evidence implied that there seems to
be a degree of complacency amongst the chief executives of some
local authorities, who have mistakenly assumed that the existing
Access to Information regime operating in local government is
similar to the Freedom of Information requirements that will be
in force from January 2005:
There is some doubt as to whether it is worth
devoting much effort to FOI, when a lot of effort was put into
the 1998 Data Protection Act and the Year 2000 initiative, yet
both had little impact on local authorities in the end. There
is considerable uncertainty as to the volume and nature of requests
that local authorities might expect after 1 January. These factors,
and the lack of recognition by central government that implementation
has resource implications, are influencing the approach of senior
managers and members to prioritising implementation.[78]
We believe that Chief Executives in all local authorities
should ensure full compliance with FOI.
58. The FOI Act contains no explicit financial penalties
for non-compliance, but if the Information Commissioner deemed
a public body not to be compliant it could take that body to the
High Court for contempt. This issue is discussed below in section
4.
59. The LGA states in its submission that resources
are the single most important issue of FOI compliance:
[B]y far the largest issue for local authorities
is the lack of resources. They do not have the time, money or
personnel to easily organise information on a corporate basis
in order to allow ready retrieval for FOI purposes. The costs
of organising their manual systems and/or introducing an electronic
document and records management system (EDRMS) are beyond many
of their means.
There has been no direct funding from central
government for the implementation of FOI. The assumptions used
to estimate costs prior to introducing the Act did not take into
account issues affecting local government.[79]
60. A major concern was removed with the eventual
decision on the fees regime that would operate under the Act (discussed
below in Section 3), but it came very late according to the LGA.
Furthermore, there still has been no detailed guidance from the
DCA on the fees regime that will operate for the FOI Act, although
it has been repeatedly promised. The LGA's noted in its submission
sent in before the Lord Chancellor's announcement on costs, that:
Of particular concern is that, even at this late
date, the final regulations on fees are not known. This is delaying
authorities from drawing up procedures and detailed planning regarding
costs and charging, and authorities fear that they will not now
have these in place by 1 January.[80]
In oral evidence to the Committee, the Vice Chairman
of the LGA, Cllr. Peter Chalke, noted that:
Only a very short time before the Act comes into
place we have now seen a speech from Lord Falconer on the fees.
I would remind you that we also still do not know the fees on
the Licensing Act. We have been preparing, but if Government had
prepared earlier and let us have the information earlier it would
have made life a lot easier.[81]
61. While the concerns raised by our local government
witnesses are similar to concerns expressed by other sectors,
the LGA argued that the particular challenge for local government
is the sheer range of services provided by various authorities—300
different services—with particular problems of records management
and pressures on information systems. As Ms Faith Boardman put
it:
I think we are peculiar in the public service
in terms of the complexity of the services that we do and that
certainly knocks on into issues like IT. We are moving reasonably
swiftly in our case from a situation where we have had no IT in
some services, very old IT in others and more modern even further,
but there is a business need which all local authorities are tackling
to join those systems up and modernize them. That is a very big
issue and takes several years.[82]
Another witness, Dr Lydia Pollard of the IDeA, indicated
that procuring electronic records management systems, which are
essential for long term FOI compliance was beyond many authorities.
If you are talking of implementing an electronic
records management system, you could easily spend £250,000
on such a system. If you are a small district authority then that
is an enormous sum of money and so before you would invest in
anything like that you would need to be sure that you were getting
the right number of enquiries to justify implementing such a system.[83]
62. Furthermore, the National Archives, which advises
on records management, had focused its efforts on advising unitary
and county councils. Local and district councils, possibly with
even greater challenges, were therefore not receiving the advice
they needed.[84]
Conclusion
63. While many local authorities will be compliant
with the FOI legislation when it comes fully into force in January
2005, some will not. Successful compliance will be dependent on
a relatively low initial level of requests. A 'business as usual'
approach is far from the intention of the Act, which aimed to
introduce a culture change in the handling of information. It
seems clear that, so far, too few common standards for handling
FOI requests across local government have been established. It
is likely that different local authorities will handle similar
requests in very different ways.
64. Late guidance from the DCA on such matters as
fees has meant that issues of central importance have had to be
addressed by local government at the last moment. We are concerned
that the necessary guidance for enabling all staff to understand
the requirements of the Act has been produced so late. In some
respects the result has been that local government has been given
a few weeks rather than four years to prepare fully for the advent
of FOI.
16 Ev 88 Back
17
Ev 64, para 1 Back
18
Ev 64-65, para 2.1 Back
19
Ev 68, para 4.1 Back
20
Q 151 Back
21
Q 153 Back
22
Qq 171-174 Back
23
Q 163 Back
24
Ev 82, para 2.3 Back
25
Ev 66, para 2.11 Back
26
Ev 69, para 6.2 Back
27
Ev 66, para 2.10 Back
28
Ev 66, para 2.8 Back
29
Qq 310-311 Back
30
Ev 65, para 2.2 Back
31
Q 156 Back
32
ibid Back
33
Q 159 (This group is discussed below in Section 4) Back
34
Q 157 Back
35
Q 161 Back
36
Q 161 Back
37
Q 179 Back
38
Ev 69, para 6.8 Back
39
Ev 82, para 2.4 Back
40
www.foi.nhs.uk/proj_home.html Back
41
Q 129 Back
42
www.foi.nhs.uk/proj_home.html Back
43
Q 129 Back
44
Qq 130-134 Back
45
Q 129 Back
46
Q 287 Back
47
www.foi.nhs.uk/proj_benefits.html Back
48
Local Medical Committees are statutory bodies which represent
the interests of NHS GPs Back
49
Ev 61, paras 8 and 9 Back
50
Ev 60, para 2 Back
51
Ev 60, para 3 Back
52
Q138 Back
53
Q 139 (This evidence was given on 12 October 2004, before the
Lord Chancellor's announcement on fees) Back
54
Q 139 Back
55
Q 288 Back
56
Ev 61, para 12 Back
57
ibid, para 13 Back
58
ibid, para 14 Back
59
Ev 62, para 24 Back
60
op cit, HC 5, para 2.2 Back
61
Q 139 Back
62
Ev 62, para 25 Back
63
Q 140 Back
64
Ev 85 Back
65
Ev 81, para 2.2 Back
66
Ev 75, para 1.1 Back
67
Ev 76, para 1.4 Back
68
Ev 76, para 2 Back
69
ibid Back
70
Ev 77, para 4.3 Back
71
ibid, paras 4.2-4.5 Back
72
Qq 191-194 Back
73
Q 200 Back
74
Section 46 of the FOI Act-a Code of Practice on the Management
of Records, which was produced by the then Lord Chancellor's Department
in November 2002 Back
75
Ev 79, para 6.3 Back
76
ibid, para 7.1 Back
77
Qq 191-194 Back
78
Ev 78, para 5.3 Back
79
Ev 77, para 5.2 Back
80
Ev 78, para 5.4 Back
81
Q 200 Back
82
ibid Back
83
Q 201 Back
84
Qq 45-48 Back
