Select Committee on Constitutional Affairs Seventh Report

8  Conclusions and recommendations

First year of FOI implementation

1.  It is clear to us that the implementation of the FOI Act has already brought about significant and new releases of information and that this information is being used in a constructive and positive way by a range of different individuals and organisations. We have seen many examples of the benefits resulting from this legislation and are impressed with the efforts made by public authorities to meet the demands of the Act. This is a significant success. (Paragraph 13)

Requesters' experiences

2.  Indefinitely delayed internal reviews conflict with the concept of the statutory response time in the Act. We note that the Commissioner has the discretion to begin his investigations when he judges that the complaints process has effectively been exhausted. We welcome the commitment he has now made to put pressure on public authorities to complete internal reviews more quickly. (Paragraph 24)

3.  Some public authorities are not recognising the circumstances in which they should apply the Environmental Information Regulations rather than the FOI Act. We recommend that DEFRA and DCA work together to prepare a shared code of practice for the EIRs and FOI. (Paragraph 31)

Public authorities' experiences

4.  Whilst central co-ordination of support and guidance to public authorities can cause problems if it is slow or too directive, we believe that when it is provided openly, it can be a valuable way of improving compliance. We recommend that the DCA takes a more active role in improving co-ordination and in disseminating advice from the clearing house more widely throughout the public sector. (Paragraph 38)

5.  The National Archives has told us about the impressive range of guidance documents which it has issued but the evidence suggests that records management practices in some public authorities need substantial improvement. More proactive leadership and progress management of departments' records management systems and compliance with the section 46 code is required. We note that the National Archives will, during 2006, make plans to assess authorities' compliance with the section 46 code of practice and we look forward to the publication of their findings at an early date. (Paragraph 41)

6.  The National Archives has been monitoring implementation of Electronic Document and Records Management System in government departments in terms of progress against the Cabinet Office targets for 2004. We recommend that it publishes a report setting out the extent to which those targets were met and the actions which should now be taken to achieve the benefits from EDRMS. (Paragraph 43)

7.  Baroness Ashton's attitude that adequate processes for the long-term preservation of digital records are in place contrasts with the views of the National Archives. Her response to our questions does not accord with the widely recognised view among industry specialists that digital preservation of records is a complex and urgent problem to which no satisfactory long-term strategy has been found. Difficulties in accessing older electronic records could soon become a serious problem for government departments. There is a serious possibility that material over 10 years old will essentially be irretrievable in the near future and complacency about this is not acceptable. Plans are needed to handle the rapid and significant changes in technology and the inevitable degradation of storage media. National Archives and the DCA must take the lead in developing such plans. We will monitor progress on this issue. (Paragraph 46)

The Information Commissioner

8.  We heard evidence from requesters and public authorities who had waited months for the Information Commissioner to start investigating their complaints. Witnesses also gave examples where the quality of investigation and the information provided in the decision notice were inadequate. (Paragraph 52)

9.  The impression given by our witnesses was that the complaints resolution process was unsatisfactory during 2005, but we were pleased to note the efforts being made by the ICO to learn from its first year's experience of a challenging workload in order to investigate complaints more efficiently. We are surprised that the need for additional resources was not identified earlier in 2005, before the backlog became such a problem, and we are not convinced that adequate resources have been allocated to resolve the problem, or that they were allocated early enough. The Commissioner has told us he will publish a progress report in September 2006. We expect this to provide measures of quality as well as quantity. We will use this report to monitor the success of the recovery plan and to assess whether further action by the Committee is needed. (Paragraph 62)

10.  We support the Commissioner's decision to adopt a firmer approach to enforcement. We expect to see him use his full range of powers to improve compliance and reduce the delays being experienced by requesters. (Paragraph 68)

11.  We recommend that the DCA takes a more proactive role in ensuring that government departments co-operate fully with the Commissioner and provide him with the information required for his investigations, within the periods agreed in the Memorandum of Understanding. (Paragraph 69)

12.  We believe that to it is too soon to assess the role of the Information Tribunal process in detail, but the Commissioner has made some important points which should be considered at a later date. (Paragraph 71)

The role of the DCA

13.  The 20 day response deadline is a statutory requirement and not merely a target. The DCA, together with the Information Commissioner, must work to improve compliance with the deadline and raise standards so that authorities consistently provide a more timely response to requesters. (Paragraph 79)

14.  Routine time extensions of up to several months undermine the spirit of the 20 day response deadline in the Act and reduce the benefits for requesters. We recommend that the DCA guidance be updated to reflect the Information Commissioner's guideline that two months should normally be sufficient to reach a decision about the public interest and the Minister's undertaking that wherever possible all information should be disclosed within 20 days. We recommend that the DCA publish data to show how often and by how much this guideline is exceeded by government departments. (Paragraph 82)

15.  We recommend that the target times and actual time taken for internal reviews by government departments be included in the DCA quarterly published statistics. (Paragraph 85)

16.  The clearing house must comply fully with the letter and the spirit of the FOI Act, be openly accountable for its work and respond to any individual requests for information which it receives in full accordance with the Act. (Paragraph 91)

17.  We recommend that the clearing house publish quarterly statistics about its case handling so as to provide clear information about its role. (Paragraph 92)

18.  We would be concerned if there were cases where public authorities were spending weeks finding information. Since authorities may already include this time within their calculations of chargeable limits, we do not consider that it would justify a review of the fees regulations, but it would demonstrate a serious shortcoming in some public authorities' records management systems. (Paragraph 97)

19.  We recommend that problems with 'frivolous' requests should be dealt with through the existing provisions in the Act. We do not consider that this is an appropriate reason for reviewing the fees regulations. (Paragraph 100)

20.  We see no need to change the fees regulations. There appears to be a lack of clarity and some under-use of the existing provisions. We recommend that the DCA publish the results of its internal fees review when it is concluded and that it conducts a public consultation before deciding on any change. (Paragraph 104)

Relationship with the ICO

21.  We are not convinced that the relationship between the DCA and the ICO is working as effectively as it might. We are concerned that resource restrictions and staff salary constraints could limit the Commissioner's performance as an independent regulator and recommend that other reporting arrangements be considered if the recovery plan does not achieve its stated objectives. (Paragraph 107)

22.  We see considerable merit in the Information Commissioner becoming directly responsible to, and funded by, Parliament, and recommend that such a change be considered when an opportunity arises to amend the legislation. (Paragraph 108)

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