Select Committee on Constitutional Affairs First Report


4 The Role of the DCA

65. The DCA has prime responsibility for the FOI implementation process and the Lord Chancellor's stated intention for his department is unambiguous:

    My Department, the Department for Constitutional Affairs, has successful FOI implementation as one of its principle objectives…We are providing clear and emphatic leadership across Whitehall in relation to FOI…we will not be passive in this role.[85]

The Lord Chancellor chairs the ministerial sub-committee on Freedom of Information which has as its terms of reference: "To oversee the Government's strategy on Freedom of Information and its preparations for the commencement of the Freedom of Information Act 2000".[86]

66. The DCA has decided to focus its efforts on preparations by central government departments, leaving the Information Commissioner's Office to concentrate on all other public bodies. It publishes annual implementation reports as required by s87(5) of the 2000 Act. A Code of Practice under s45 has been issued giving guidance on the provision of advice and assistance. The DCA sets out its role as the department responsible for the FOI Act and secondary legislation made under the Act.

    [T]he Department has a specific (non-statutory) role for leading and co-ordinating the work of government departments in preparing for implementation and application of the Act. The Information Commissioner's Office has responsibility for promotion and enforcement of the Freedom of Information Act 2000.

    The Department and the Information Commissioner's Office have agreed their respective roles […] the Department is focusing its resources on central government and the Information Commissioner's Office is working across the whole of the public sector, but is concentrating on public authorities outside central government.[87]

67. The Lord Chancellor and the Information Commissioner decided in 2001 to form an Advisory Group on Implementation of the Freedom of Information Act. The group was jointly chaired by Lord Filkin, Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (since replaced by Baroness Ashton), and Mr Richard Thomas, the Information Commissioner. There is also a Freedom of Information Practitioners' Group consisting of DCA and other public sector officals. The DCA has drawn up guidance on the exemptions, in addition to that produced by the Information Commissioner, who has responsibility for the wider public sector. The DCA FOI webpage contains details of its implementation plans and the Information Commissioner's website has a series of guidance notes for FOI practitioners.[88] The National Archives produced a model action plan for records management for public bodies to follow.

68. In anticipation of full implementation on 1 January 2005, all relevant bodies had to have publication schemes in place in advance. The Lord Chancellor referred to these as being: "Schemes whose quality is independently tested by the Information Commissioner".[89] The reality has been that given its limited resources (there are 33 FOI staff at the Information Commissioner's Office)[90], the ICO approved only the format of the vast majority of publication schemes, not their content.[91]

69. In December 2003, the DCA produced a Model Action Plan, detailing the actions that needed to be taken by Government Departments to be ready for full implementation of the Act. The NAO considered implementation in the summer of 2004 and concluded that "generally Government bodies have made good progress".[92] The NAO report supported the Department's assertion in a later submission to the Committee that "implementation of FOI was being taken seriously across Whitehall and that departments were making good progress towards effective implementation".[93] The ICO agreed. [94]

70. As we note above, in May 2004, the Information Commissioner had made it clear to the Committee that the picture was mixed the further one got from central government departments.[95] On the subject of raising public awareness of the Act he commented, "we have not really started yet".[96] The DCA claimed it recognised a need to reach out and ensure effective steps to implementation amongst non-government department bodies:

    DCA recognises the importance of communication between the centre…and local authorities. As a result, DCA is embarked on a series of presentations at Regional and County Discussion Groups of Access to Information Practitioners, chaired by local authorities. DCA has also undertaken initial scoping research into "plugging into" existing relevant networks within the health, education and Police Sectors. [97]

In a speech in March 2004, the Lord Chancellor spoke of sharing best practice and of establishing networks to support implementers on an on-going basis.

    We will foster Freedom of Information networks to share best practice, and to disseminate case law and training. The first networks are in place, and others will follow. I see a need for continuing support for these networks from my department.[98]

71. How far this support network has effectively functioned was called into question by the evidence that we received during our inquiry. As one local government witness put it:

    We were expecting that a network of FOI practitioners would be facilitated centrally and we registered our interest but heard nothing more. A web-based community of practice would have been very useful for practitioners to post their own procedures, flowcharts, training, presentations etc, and to host a forum for questions and answers.[99]

72. The picture which emerged from the evidence we received was of uneven levels of success and a strong perception of a lack of strategic control and support from central government to other public bodies. The cause appears to have been a combination of a lack of consistent leadership by the DCA and an unclear division of responsibility for implementation between the DCA, the ICO and other government departments.

Co-ordination from the Centre

73. The LGA complained to us of a lack of co-ordination from the centre.

The LGA also highlighted a lack of clarity in the delivery of guidance and the feeling that no single body was responsible overall for the implementation of FOI. Comments received from LGA members included the following:

    There is a continuous stream of guidance coming from six government bodies (Information Commissioner, Department for Constitutional Affairs, Office of the Deputy Prime Minister, National Archives, DEFRA and DfES. The guidance seems uncoordinated and appears on the six websites on a drip-feed basis. No-one in central government appears to be managing the overall process.

    Local authorities also feel that the guidance that is provided is aimed at central rather than local government and is too high level. There is a strong feeling that examples that could be copied would have been very useful and would have saved local authorities a great deal of time. This would also have helped to achieve consistency of approach. It was suggested that FOI should have been made a national project with dedicated funding to produce products that could be used by local authorities".[101]

74. By mid-October 2004, the DCA still had not produced its long promised guidance for officials on how to deal with information requests. We were told at the start of our inquiry that these were "in preparation".[102] The guidance finally was produced on 26 October with little more than six working weeks until implementation. Furthermore, there appears to have been some confusion amongst public sector bodies about where to seek advice and about which department or agency was responsible for supporting them. The LGA noted that:

    There has been a lack of timely, practical guidance. The guidance from central government is seen as being written in legalistic terms and at a high level. Practical examples and case studies would be more appropriate to aid understanding, and help authorities start developing procedures and training.[103]

The Lord Chancellor laid before Parliament a Code of Practice on the discharge of public authorities' functions under Part 1 of the Freedom of Information Act 2000, with only 24 working days remaining, including the Christmas period, before the Act comes into force.[104]

The Lord Chancellor's Advisory Group

75. The Lord Chancellor's Advisory Group, which brought together a number of representatives from relevant public sector bodies (including a number of our witnesses), should have provided an important tool to co-ordinate guidance and training, ensuring that the various concerns of the disparate public sector bodies. The Group's terms of reference are:

    - Monitoring progress on implementation;

    - Identifying best practice in information management and recommending approaches to its dissemination in and between types of public authorities;

    - Advising on the needs of users of the Freedom of Information Act, how authorities might best meet those needs, and proposing ways of raising the public's awareness of their rights;

    - Receiving reports on, and advising on, the preparations being made by the Information Commissioner to ensure procedures are established and guidance produced in a timely manner;

    - Promoting a new culture of transparency in public authorities by assisting in the development of training and education programmes.

76. However, ACPO told us that the Lord Chancellor's Advisory Group had suffered from a lack of synergy from Board members. In effect it was a good idea that was not properly fulfilled. In oral evidence to the Committee the Information Commissioner admitted that they were "rather ambitious terms of reference"[106] and that it did not turn out to be "very much more than a useful information exchange".[107] One of the key reasons in the opinion of our witnesses why the Board's synergy failed to materialise was the constant changing of staff representatives from the DCA (noted above in para 31). Deputy Chief Constable Ian Readhead noted that this resulted in a loss of useful guidance.[108]

77. Mr Maurice Frankel pointed out that since the Lord Chancellor's Advisory Group was set up in January 2002 there had been a succession of four different Ministers chairing it: "it has not had the consistency, it has not had somebody there getting on top of the issue, sticking with the issue and seeing what needs to be done to shake the thing up a bit where that is necessary".[109] The Parliamentary Under-Secretary of State, Baroness Ashton, did not accept these criticisms and noted:

    I have not had the privilege of Chairing that Board as yet […] it was ambitious in what it set out to do […] I think it has done a good job and I am hoping it will do an even better job as we move forward.[110]

The Board was co-chaired by the Information Commissioner, Mr Richard Thomas, who did provide some non-political continuity.

Staff Turnover in the DCA

78. The Committee was told that in addition to the DCA representatives attending the Project Board meetings never being the same, there also has been an unusually high turnover of staff at the DCA department concerned with FOI more generally. Furthermore, it has been suggested that because nobody is left within the DCA FOI team who was involved in writing the legislation, this is causing problems in interpreting the legislation in certain areas.[111] Mr Maurice Frankel told us of the negative effect of the exceptionally high turnover of staff in the DCA FOI team during the period since the Act was passed.

    […] there has been a turnover of Ministers and you might say, "Well, at least the officials continued", but we have had a similar turnover of officials because you have had, I think, three directors of that division and two acting directors in less than three years, so you have had four Ministers and five heads of the division over a very short period of time, so everybody has started getting on top of it and by the time they have figured out what is to do, they have handed over to somebody else. That has been a very unhelpful aspect of the process…[112]

ACPO agreed with this assessment:

    There have been high staff turnover levels in the DCA since the development of the Publication Scheme in 2003. Indeed, the individuals who drafted the legislation in the DCA have since moved on and it is our belief that there is nobody left within the team who was involved in writing the legislation. This is causing problems in interpreting the legislation in certain areas and ACPO are having to take QC advice on certain sections where the wording is not clearly defined (e.g. Section 8).[113]

79. The Parliamentary Under-Secretary of State rejected these charges and stated that she was "very confident about the way in which we have organised our staffing".[114] The DCA's Constitution Director, Dr Andrew McDonald, claimed that the turnover of staff had not been as dramatic as suggested by our witnesses and where it had occurred, was often part of a policy of renewing the personnel to make sure a team was in place with "appropriate skills and competencies for the long haul".[115] He added that the benefits would be seen in the coming years. However, the cost appears to have been on continuity during the preparatory phase, as witnesses confirmed.[116]

80. Our local government witnesses stated that they preferred dealing with the Information Commissioner's Office when they needed advice rather than the DCA. As one witness put it:

    I have had comments back that getting through to the right person within the DCA can be difficult and getting a response that is meaningful to them can be difficult as well.[117]

Dr McDonald accepted that "there are aspects of these [staff] changes that we might have communicated more explicitly".[118]

81. We formed the impression from the evidence provided that the high staff turnover in the DCA during the period between the agreement of publication schemes in the summer of 2003 and the autumn of 2004 seriously interfered with the delivery of co-ordination.

FOI Champions and Sanctions for Non-compliance

82. The Committee has heard that with only three months to go before implementation, many FOI officers were having difficulty in getting senior managers to take the requirements of FOI implementation seriously. If true, the DCA policy of having nominated senior officials in each public sector body pushing through FOI implementation (or 'FOI Champions' as they are called), does not appear to have been successful. One explanation has been that the penalties for non-compliance are not clear. Moreover, if the FOI champion is not senior enough, their ability to energise the public sector body has been been limited. We understand that a by-product of the Committee's inquiry has been to move FOI implementation higher up the agenda.

83. The Information Commissioner, Mr Richard Thomas, stated in evidence to the Committee in May 2004 that he would not be sympathetic about any lack of preparation on the part of public bodies:

However, Mr Maurice Frankel told the Committee that some staff did not really believe that their managers thought that non-compliance was all that serious:

    It is a common thing to have questions asking, "What are the penalties for non-compliance?", hoping to be told that they are Draconian, not hoping to be told that they can get away with it, but hoping to be told that they are powerful so that they can go back and frighten the boss and frighten the top managers.[120]

84. The approach has been to rely on the FOI Champions in each organisation to take responsibility for energising the organisations and ensuring adequate preparations for compliance. While this appears to have worked quite well amongst some central government departments, the approach does not seem to have achieved consistent results. Lack of consistency was a message repeatedly relayed to the Committee, as well as a failure to share good practice early enough across differing sectors. An example was the practicing of procedures for dealing with requests. We understand that DEFRA practised dry-runs of dealing with FOI requests across the whole department, but that this useful exercise has not been adopted by many other departments.

85. The Information Commissioner's policy is to secure compliance by a process of educating and advising Public Authorities. However where compliance cannot be achieved by this informal route he will consider exercising his formal enforcement powers. If the Commissioner's Office is satisfied that a Public Authority has failed to comply with any of the requirements of the Act it may serve an enforcement notice requiring the Authority to comply. If the Public Authority fails to comply with the enforcement notice the Commissioner's Office may certify that fact in writing to the High Court. The Court may then deal with the Authority as if it had committed a contempt of court.

86. In the course of preparing evidence for this inquiry a number of public bodies reviewed their preparations for implementation. While this was welcome, we would have liked to have seen more evidence that the Department was encouraging this degree of thoroughness at an earlier stage.

The 20 Day Deadline for Responding to Requests

87. A major concern of all our witnesses has been the time available to public bodies to respond to FOI requests. The FOI Act has set a relatively demanding deadline of 20 days for public authorities to respond to requests for information, either with the information, or explaining why it was being withheld—even if they are not formally described as a FOI request by the applicant. The relatively short deadline was surprising given that research commissioned by the DCA itself found that a number of countries with existing FOI legislation have struggled to meet short deadlines for responses.[121] A number of our witnesses suggested that there should be some flexibility on this point, especially during the initial stages of implementation. Other concerns have been raised by bodies such as schools which have long summer holidays when staff are not in post at particular times of year. Contained within the Act is a provision for the Secretary of State to grant extensions to these time limits up to a maximum of 60 working days.

88. Birmingham City Council was one local authority which highlighted the problems they felt would be faced by local authorities in meeting the deadline of 20 days, a challenge that had been exacerbated, it claimed, by the late delivery of DCA guidance.

    […] not many local authorities, we believe, will be able to guarantee that all routine requests will be dealt with, in full, within the statutory 20 days. There are a number of reasons, namely:

    1.  local authorities are unable to estimate, at this moment in time, with any degree of certainty, the number, size, nature and extent of requests for access to information. They will, of course, not wish to expend vital Council resources without due cause. This is in part due to the radical nature of the Act, both in terms of the scope of the Act in relation to domestic legislation and the number of potential applicants; and

    2.  local authorities will be unable to test, in full, the IT and manual systems and procedures being put in place by them to deal with FOIA requests. This is due to a number of factors, the primary factors being unable to anticipate the number of requests made, and the fact that much of the guidance and regulations, including:-
  • the Fees Regulations and Environmental Information Regulations;
  • amendments to schedule 12a of the Local Government Act; and
  • the appointment of qualified persons under s36 of the Act;

    still needs to be concluded by the Government, with less than 3 months before the scheduled implementation date of 1 January 2005. All of those documents form vital parts of the entire FOIA framework and, as such, these current "gaps" leave the FOIA potentially unworkable, at the present moment in time.[122]

    89. Birmingham City Council proposed that no penalties should fall on public authorities that fail to comply with the Act and that a staggered introduction to the Act should be considered:

      i)   We would suggest that local authorities should not suffer any penalty or censure for failing to comply with the Act, for a bedding in period of, say, one year, provided they could demonstrate to the Information Commissioner that they had taken reasonable and adequate steps to try and comply with the request;

      ii)  An alternative approach would be for the Government to initially extend the period to respond to a request to, say, 40 days for routine requests, in line with the Data Protection Act timescales for an initial period of , say, one year, whereafter it would revert to the 20 working days at present intended by the Act; and

      iii)  Invite the Government to consider the "staggered" introduction of the retrospective effects of the Freedom of Information requests—as highlighted in this paper—in an effort to make more operationally manageable the orderly and effective implementation of the Act on 1 January 2005.[123]

    90. The Committee was told by the Deputy Information Commissioner, Mr Graham Smith, about a consultation being carried out in Whitehall about the possibility of extending the 20 day deadline for responding to FOI requests:

      I have been informed by the Department, that there has been a consultation within Whitehall just in the last six months […] asking the departments whether they wanted to suggest that in certain circumstances that 20 working days should be extended. I understand that a submission has been put forward to the Minister and some draft regulations are being formulated, but my understanding is that that was an exercise purely within central government and I am not sure whether the Local Government Association were consulted or not, but my understanding is that they were not. We have not been formally consulted […] I understand that there may be some regulations between now and 1 January.[124]

    No information on this had been provided to the Committee by the DCA and our witnesses from local government and elsewhere do not appear to have been aware of it either. The Parliamentary Under-Secretary of State appeared unaware of the concerns expressed repeatedly to the Committee about the pressures of meeting the 20-day deadline for responses and stated that only two examples had come her way—schools and the armed forces (who might be actively deployed for long periods overseas).

      Those are the only examples that have come my way. I have checked that there has been no correspondence or request for any others that have come through any other meetings. We have been in discussion, as you rightly say, with central government, but there have been no other areas where this has been particularly raised. As I say, schools was a classic example in a sense, but no others to date. If we receive any others, of course, we would look at them.[125]

    However, if the consultation exercise was only being held within central government departments then it is not surprising that further representations had not been received. It is curious that even the Information Commissioner's office was not consulted. We do not consider that the question of possible extensions of the time limit of 20 days has been effectively handled by the DCA in respect of public sector bodies outside central government.

    Timing of Issuing Guidance

    91. As noted above, the Act contains 'exemptions', which specify the circumstances in which information may be withheld. Many of the exemptions will be subject to the public interest test. Where the public interest test applies, the authority will still be required to disclose the information, unless it can demonstrate that the public interest in withholding the information outweighs the public interest in disclosing it. Other exemptions are 'absolute', which means that the public interest test does not have to be applied.

    92. It remains to be seen how the exemptions regime will work in practice, but the Information Commissioner told the Committee that in cases of disagreement with Ministers he intended to make public reports to Parliament.

    93. The Information Commissioner highlighted the issue of late decision-making in his submission. In particular, he cited the question of the authorisation of a qualified person under Section 36 (5) of the Act (i.e. a person who can grant exemptions) as a matter that had not been covered. There was a lack of clarity about whether this was the responsibility of DCA or ODPM.[126]

      A lack of concrete examples on how and when exemptions will apply has been cited as an issue that is causing delays in determining procedures and staff training.

      In particular, the decision on who will be the 'qualified person' within a local authority (the person who will assess the application of the section 36 exemption) has yet to be formally agreed and specified. The application of section 36 is an area of some considerable concern to senior officers and elected members. This is an area where detailed guidance and case study examples would be valuable to help local authorities. Time is now very tight for this area and for developing local procedures for appeal.[127]

    94. Cllr. Peter Chalke of the LGA also told us of his concerns on this matter:

      We need to set up a system so that we know that the person who is the qualified officer will be trained and ready to take the decisions. At this moment we suspect it may be the monitoring officer. It cannot be too difficult to nominate who that is. Those sorts of things could have been done so much earlier on in this and would have made life easier […] It is the department's job to nominate that officer. We are not getting the information, so it has to come back to the DCA.[128]

    Other witnesses stated that they had raised this matter with the DCA in the Lord Chancellor's Advisory Group, but with no apparent effect.

    95. The Constitution Director, Dr Andrew McDonald, denied that the decision on who a qualified person would be was a particularly important one, saying: "this is a relatively minor detail within the Act". He added that what was important was that this guidance was settled by January 2005. The person nominated would not require any particular training and would not need to be an expert in the whole Act.[129] Given that this person will be authorising exemptions under the FOI Act we are surprised that the DCA would not expect such a person to be knowledgeable about the whole Act. Furthermore, even if the DCA does not think it is an important issue, the Information Commissioner and local government do not agree with this interpretation. The Department's attitude to such questions, which are exercising those who will have to implement the Act, illustrates deficiencies in its approach to supporting the process towards implementation.

    96. In his submission the Information Commissioner admitted that guidance on exemptions still remains to be finalised. It appears that this is another area of responsibility shared between the DCA and the ICO.

      The Department for Constitutional Affairs have prepared guidance for Government Departments on the exemptions under the Act and on various procedural issues. However, these remain in draft form and are not yet published.

      ICO guidance is directed at all public authorities, including Government Departments. Much of this has now been published and, although there has been some slippage in the timetable for its completion, the remainder will be published shortly. In some cases the guidance on exemptions has been delayed pending discussions with those departments or other interested parties most likely to be affected.[130]

    Guidance on exemptions is a further example of late decision-making which reduced the amount of preparation time to a matter of weeks for legislation which has been on the statute book for four years.

    The Fees Regime

    97. An important example of late guidance arose over fees. The question of what fees would be charged to applicants requesting information under FOI had exercised many, but as of mid-October 2004 there still had been no guidance from the DCA on the fees regime for the Act. The Information Commissioner posted a fees update on his website in March 2004. This referred to the Fees Working Group, led by the DCA which met for the final time in April 2004. A range of possible approaches to the fees regime question was considered by the Group. The Group did not reach a consensus on all the issues discussed and, rather than recommend a single approach to Government, it produced a paper setting out a range of options for consideration.

    98. Campaigners and practitioners in public authorities have complained since 2002 that no decision had been reached on the fees regime likely to operate from 1 January 2005. The Information Commissioner told us:

    Indeed, the Information Commissioner was so concerned with the lack of progress on this question, that he wrote to the Lord Chancellor himself in June 2004 asking for the matter to be resolved.[132]

    99. Finally, in a speech in Newcastle on 18 October, the Lord Chancellor announced that:

      The vast majority of requests made under the new Freedom of Information rights will be free […] For information which costs public bodies less than £450 to retrieve and collate, there will be no charge. This is roughly equivalent to two and a half days of work, for free. Government departments will only be able to charge where costs rise above £600 (which equates to about three and a half days work).[133]

    Furthermore, these limits only cover the costs of finding the information, not the cost of assessing whether it should be disclosed or not.[134] In his announcement the Lord Chancellor did not issue the accompanying fees guidance and regulations for public bodies (setting out exactly how things will operate). Instead the DCA indicated that these regulations would emerge "in November"—this did not happen.[135] The Information Commissioner told the Committee that, "I have to say that is very late in the day".[136] We welcome the Department's decision to waive fees for requests below £450/£600 which will cover the vast majority of requests. However, this decision came unnecessarily late and created avoidable uncertainty for the public sector bodies concerned. Detailed guidance on the fees regime still has not been produced and needs to be as a matter of urgency.

    100. The guidance will cover what will be an appropriate hourly charging rate for assessing whether a request has come in under the limits which have been set.[137] While the removal of fees for the majority of applications is a positive step towards encouraging ease of access to official information, under the terms of the Act there is no requirement for public bodies to make information available if the cost of retrieval exceeds these limits. While public bodies may choose to provide the information on a full-cost basis, there is no requirement under the Act to do so. Paradoxically, while the non-imposition of fees will make many applications easier, this may also mean in effect that any request for information that takes more than 2-3 days to retrieve can be refused.[138] Therefore, whether intended or not, the setting of the fees limit sets an arbitrary and potentially vast exemption to the scope of information which can be required to be produced. Notwithstanding this fact, the ICO emphasised to the Committee that this did not remove a public body's obligation to give what assistance it could:

      […] public authorities will have a duty to provide reasonable advice and assistance, so if your request takes you to £750, the authority must come back and say, "What is it you really want? Can we agree a smaller amount?" They cannot simply say, "Over the limit", and walk away from it. They have to assist you in reformulating your request.[139]

    101. We hope that the decision to waive fees for most FOI requests does not inadvertently lead to a more restrictive approach to the application of freedom of information.

    Publication Schemes

    102. As discussed above, the Freedom of Information Act 2000 requires public authorities to adopt and maintain a publication scheme which has been approved by the Information Commissioner. This requirement to adopt an approved publication scheme was phased in between July 2002 and April 2004. However, the sheer number of schemes approved in the time available meant that these schemes were apparently assessed in terms of their form, not their content. That is, the ICO staff did not have time to check what the publication schemes actually contained, but rather how they were structured. The Deputy Information Commissioner explained as follows:

    103. It has been suggested that this has resulted in some cases in rather un-ambitious schemes, which according to campaigners means that the opportunity of the publication schemes to promote freedom of information objectives was lost. Mr Maurice Frankel told the Committee that:

      the main test [of a publication scheme] is what it adds to what went before. I think in too many cases the answer is practically nothing…what you see is schemes built up by taking stuff that is on the website already and just a link to it being put on the publication scheme […][141]

    104. Mr Frankel went on to state what he thought the publication schemes should achieve:

      I think we would have liked to see, and would still hope to see, schemes being used, first of all, to make previously inaccessible or unpublished information available and, second, to provide material which will help people understand what it is that departments hold, what type of material goes into their files, what type of documentation is produced at different stages in the decision-making process so that people can anticipate what will be there that addresses the issue they are interested in rather than have a black box into which people have to fire at random with no idea whether there is a target they can hit.[142]

    Mr Frankel also suggested that the publication schemes could support FOI objectives by helping requesters identify what material was being disclosed and what was not.

      What we also would like to see is departments and public authorities publishing their request logs and their disclosure logs, and this co-ordinated system of monitoring would provide a basis for that so that people can see what is actually being disclosed and people can see what is being treated as exempt and what is not being treated as exempt. I think that will help to improve the level of disclosure because it then becomes very difficult for the people who have not done the work, departments which have not thought about it or authorities, to withhold stuff which their colleagues in other departments have been releasing. It helps to drive the standards up if that is published.[143]

    105. It is clear from other evidence we have received that a number of publication schemes may not have met the aim of the freedom of information legislation, notably in the medical sector.[144] The ICO placed a 'sunset clause' on its approvals for the publication schemes and intends to review these approvals after four years from initial approval.[145]

    Training advice

    106. Another concern raised by our witnesses has been training advice. The BMA reported that guidance and training has been non-existent in some cases:

    The LGA told the Committee that concern had been expressed about the availability of good-quality training, as some of the commercial training courses could give misleading information. For example, it quoted a comment from a LGA member as follows:

      When I attended a seminar (held by a law firm) around October last year, we were told that the request had to be from inside the UK to be a valid request.[147]

    In fact, any foreign national or UK citizen, whether resident in the UK or abroad, can make a FOI request as long as a name and address is provided.

    107. Some local authorities felt that the Information Commissioner or the DCA should have either carried out training or provided a list of recommended/approved trainers.[148] According to one of our witnesses, the Manchester group of authorities simply set up their in-house training scheme, "purchased … as a consortium from a private company because we could not wait for an e-learning package to come out from the Government".[149] The Parliamentary Under-Secretary of State tried to claim that the range of training needs for FOI implementation was so broad so as to make any attempt at a core training syllabus unworkable.

      We have tried to suggest to organisations that they need to identify their own training needs within the framework of what we think they need to be able to do and to have done, and then to determine, in the way that they normally would—because they buy and organise training all the time—what is needed in their particular organisation. To be too prescriptive would have been wrong, because it is different in each different case.[150]

    108. Given that the guidance that was required to structure such training properly was only put on the DCA website on 1 July 2004,[151] it is not surprising that public bodies either did not undertake training or instead formulated their own programmes expecting to have to amend them once the DCA delivered what it had promised. In our view the DCA should have recognised the need for training to start earlier and should have issued relevant advice in a timely way.


    85   Speech to Campaign for Freedom of Information, 1 March 2004, op cit Back

    86   HC 5 (2004-05), para 2.1 Back

    87   Ev 85 Back

    88   www.informationcommissioner.gov.uk Back

    89   Speech to Campaign for Freedom of Information, 1 March 2004, op cit Back

    90   Q 264 Back

    91   Q 272. See also para 102 below Back

    92   Counting Down, op cit Back

    93   Ev 87, para 5 Back

    94   Ev 81, para 2.1 Back

    95   op cit, HC 593-i, Q 22 Back

    96   op cit, HC 593-i, Q 29 Back

    97   www.dca.gov.uk/foi/implement.htm Back

    98   Speech to Campaign for Freedom of Information, 1 March 2004, op cit Back

    99   Ev 79, para 6.4 Back

    100   Ev 78, para 6.1 Back

    101   Ev 78, paras 6.1 and 6.2 Back

    102   Ev 85 Back

    103   Ev 78, para 5.4 Back

    104   HC 33 (2004-05) Back

    105   www.dca.gov.uk/foi/agimpfoia.htm Back

    106   Q 253 Back

    107   Q 252 Back

    108   Q 159 Back

    109   Qq 101-102 Back

    110   Q 312 Back

    111   Ev 69, para 6.3 Back

    112   Q 103 Back

    113   Ev 69, para 6.3 Back

    114   Q 313 Back

    115   Q 314 Back

    116   Q 156 Back

    117   Q 226 Back

    118   Q 315 Back

    119   op cit, HC 593-i, Q 23 Back

    120   Q 114 Back

    121   Management of Freedom of Information Requests in Other Jurisdictions, Department for Constitutional Affairs research paper, October 2003, www.foi.gov.uk/impgroup/07_07c.pdf Back

    122   Ev 72. The draft Environmental Information Regulations 2004 were laid before the House on 27 October 2004. The draft Freedom of Information (Time for Compliance with Requests) Regulations 2004 were laid before the House on 4 November 2004 Back

    123   Ev 72 Back

    124   Q 281 (Mr Smith) Back

    125   Q 305 Back

    126   Ev 83, para 3.7 Back

    127   Ev 78, para 5.4 Back

    128   Qq 227-228 Back

    129   Qq 326-329 Back

    130   Ev 81, para 2.1 Back

    131   Ev 83, paras 3.5 and 3.6 Back

    132   Ev 90 and 91 Back

    133   DCA Press release 508/04, 18 October 2004 Back

    134   Q 291 Back

    135   DCA Press release 508/04, 18 October 2004 Back

    136   Q 291 Back

    137   ibid Back

    138   Qq 292-298 Back

    139   Q 297 (Mr Phil Boyd) Back

    140   Q 272 (Mr Smith) Back

    141   Q 124 Back

    142   ibid Back

    143   ibid Back

    144   See above, paras 41-42 Back

    145   Q 272 Back

    146   Ev 61, para 12 Back

    147   Emphasis added. Ev 78, para 5.4 Back

    148   Ev 79, para 6.5 Back

    149   Q 218 (Ms Matley) Back

    150   Q 360 Back

    151   Department for Constitutional Affairs, Managing Information and Training-A Guide for Public Authorities in implementing the Freedom of Information Act and the Environmental Information Regulations, www.foi.gov.uk/guide2nl.pdf Back


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