Evidence submitted by the Association
of Chief Police Officers (ACPO)
1. THE IMPACT
OF FOI: THE
FIRST 12 MONTHS
The Association of Chief Police Officers (ACPO)
utilised a PRINCE2 project to manage the implementation of the
Freedom of Information Act 2000 (FOI or "the Act") across
the Police Service. The national project was initiated in December
2001 and was concluded on 6 June 2005.
Key deliverables included the production of the ACPO
Manual of Guidance designed to ensure consistent application of
the Act across the country, and the creation of the Central Referral
Process (CRP) to provide a uniform response and to identify vexatious
and campaign requests across all forces.
An initial "Report on Freedom of Information
Implementation by ACPO" was submitted to the Parliamentary
Committee on 5 October 2004.
All statistical data presented within this paper
pertains to the first 12 months of implementation of the Act (1
January 2005 to 31 December 2005) and includes data for Scottish
forces, unless otherwise stated.
1.1 Impact on the Service
1.1.1 After the implementation of the Act,
forces received 5,740 requests in the first quarter. This declined
to 4,907 requests over the next quarter but started to rise again
in quarters three and four to 5,013 and 5,865 requests respectively.
In total, 21,525 requests were received in 2005. This pattern
is continuing and forces have reported that the first two months
of 2006 have seen a higher level of demand compared to January
and February 2005; this is evidenced by the number of referrals
to the CRP, which has risen from 492 for January and February
2005 to 1,185 for these months in 2006. It is our belief that
this increase will continue as it has in other jurisdictions such
as Ireland and Australia. A breakdown of the number of requests
per individual force is attached at Appendix A.
1.1.2 In the first few months of implementation,
the requests received were relatively simple and thus were fairly
straightforward to respond to. More recently, however, an analysis
of requests received highlights that clients are becoming more
sophisticated, submitting more detailed and complex requests that
require considerable resources in order to determine the appropriate
response. This pattern is now becoming the norm and it is not
unusual for individuals, when submitting requests, to provide
their own Public Interest Test explaining why information should
be released.
1.1.3 ACPO undertook considerable research in
preparing for implementation of the Act in order to ensure that
its approach would benefit from the lessons learned from overseas
law enforcement agencies. A key characteristic identified by many
overseas agencies was that internal members of staff constituted
a large group of subscribers where the organisation was not open
with its employees. Last year, for example, one force experienced
a sharp rise in internal requests (accounting for 40% of all applications)
as a result of an exercise to re-grade all police staff roles.
In another force that is undergoing considerable change, the requests
submitted by one member of staff constituted 4% of the FOI workload.
These examples highlight the need for business to be carried out
in a transparent manner and for effective communication of changes
to affected personnel.
1.1.4 In the first quarter, forces calculated
and fed back the time taken to respond to FOI requests. This calculation
covered only the time taken to answer requests and did not include
additional costs, such as maintaining the publication scheme.
By using the £25 an hour that was set within the fees regulations,
the cost of answering requests over the full year can be estimated
to be £4.5 million. If the cost of IT systems purchased by
a number of forces to assist them in dealing with compliance were
to be added in, this figure comes to approximately £7 million.
The budget that was set aside by the Government to cover the costs
to the Police Service, Fire Service, local authorities and district
councils falls far short of the actual cost to forces.
1.1.5 The Police Service held a conference for
all forces and criminal justice agencies where overseas speakers
from the Federal Bureau of Investigation (FBI) and the Canadian
Security Services spoke about their experiences over the last
20 years. A key issue communicated by overseas speakers was that
FOI officers treat both the requestor and the authority for which
they work as clients. The role of the FOI officer is to balance
the needs of both clients. Therefore the result is that the authority
discloses and the requestor receives as much information as possible.
The Police Service sees this model as best practice and encourages
FOI Officers to emulate this approach rather that protecting the
authority they work for. This is a major culture change which
the Service will be working towards over the next five years.
1.1.6 Each force is required to provide quarterly
updates to the CRP, outlining the total number of requests received,
the type of request, the timeliness of response and data regarding
what was released and whether exemptions were applied. This is
in line with central government's reporting method.
1.2 Types of request
1.2.1 The Police Service is currently receiving
requests relating to the main topic areas of Operational Policing,
Finance, High Profile Cases, National Security, Safety Camera
and Professional Standards. The chart below illustrates the main
types of request received.
1.3 Timeliness of response
1.3.1 The Service has generally answered
requests received within the statutory time limit. Over the last
three quarters, the Service has achieved time-compliance with
the Act 94% of the time. In difficult cases, ACPO has always advised
forces to take time to consider the request and ensure the appropriate
decision is made rather than rushing to meet the 20-day timeframe
at the expense of making an incorrect decision. The feedback received
by the CRP from requestors is that when a force is delaying its
response, for example when conferring with other bodies, the applicant
is generally happy to wait as long as they are kept fully informed
of the delay and the reasons for it.
1.3.2 The figure below illustrates the average
timeliness of response for all forces for the final three quarters
of 2005.
1.4 Outcomes of Requests
1.4.1 The chart below details the average
outcome of requests for all forces for the last three quarters
of 2005 and highlights that forces release information in full
or in part in 65% of cases.
1.5 Application of exemptions
1.5.1 The top four exemptions applied by
the Police Service are Section 40 Personal Information (45.6%),
Section 31 Law Enforcement (15.1%), Section 30 Investigations
(13.7%) and Section 38 Health and Safety (10.5%). Please note
these values do not include results for Scottish Forces. The preparatory
work that completed with the assistance of the Information Commissioners
Office (ICO) in 2004 has benefited forces and is contained within
the ACPO Manual of Guidance.
1.6 Appeals
1.6.1 Nationally, the number of internal
reviews per quarter is rising steadily (see chart below) and ACPO
is working to reduce this number.
1.6.2 For 2005, 27 cases were appealed to
the ICO's office. Scottish forces had 34 cases appealed to their
ICO.
1.7 Central referral process
1.7.1 ACPO has established a Central Referral
Process to manage requests that are complex, require ACPO advice
or are issued to several (or all) forces at the same time. The
Police Service requires an overview of these requests to ensure
that all forces respond consistently after receiving expert advice
from ACPO leads on the subject matter. The Central Referral Process
(three full-time staff compromising a Chief Inspector, Sergeant
and Police Staff) is housed within Hampshire Constabulary. The
CRP is currently funded until May 2006 and funding is being sought
to extend these roles to 2010. The team serve both ACPO and ACPOS
to ensure corporacy across the country and maintains regular contact
with Forensic Science Service (FSS), Her Majesty's Revenue and
Customs (HMRC), Royal Military Police (RMP) and Ministry of Defence
Police.
1.7.2 In 2005, the CRP received 5,172 referrals
covering 871 subjects which required advice and guidance from
subject matter experts. The team has processed 10,956 emails and
given informal guidance to forces in 1,045 cases.
1.7.3 Analysis of requests received reveals that
the press is one of the largest subscribers under the Act, as
detailed in the chart below. It is clear that some press personnel/agencies
use the Act regularly. Consequently the CRP has actively developed
an effective working relationship with members of the press. The
Central Referral Process now provides a well established link
to the press: members of the press approach the central team directly
to discuss requests and after consultation, the requests are then
forwarded to all forces on behalf of the applicant. This is acknowledged
as providing a high quality service to the media who are informed
as to what they are realistically likely to receive and what information
may be protected from disclosure. This ensures requests get fully
answered and economies of scales are applied if possible. Forces
also save time by not having to apply exemptions.
1.7.4 ACPO is actively working with other
agencies nationally where data sharing arrangements exist. This
is to ensure that proper feedback mechanisms are in place when
requests cross over authorities. An example of this is the work
in progress with the Independent Police Complaints Commission
(IPCC). A protocol is being developed so that timely advice can
be given when requests are received by either a force or the IPCC.
1.7.5 ACPO is working on the further development
of the model publication scheme so that information can be proactively
published in areas where a large number of requests are received.
The scheme has been updated three times since being formally approved
by the Commissioner in June 2003. The following classes of information
have been added: Basic Command Unit Minutes, Departmental Minutes,
Chief Constables Expenses and an explanation of what information
is charged for. ACPO has also advised forces that they should
publish a Disclosure Log on their publication schemes. Due to
workload pressures and staff shortages within some forces, the
routine publication of information has not been completed. This
pro-active publication is an important area that ACPO will continue
to monitor to ensure best practice in reducing the number of requests.
Work continues in this area to ensure consistency.
1.7.6 The ACPO Manual of Guidance has been substantially
reviewed and a new version has recently been published. Updates
include cognisance of appeals, tribunals and ICO decisions.
1.8 Vexatious requests/mosaic attacks
1.8.1 Section 14 of the Act has rarely been
used by forces, but there have been a number of cases where nationally,
ACPO has had to classify requests made to forces as vexatious.
This decision is never taken lightly and some examples are highlighted
for your information.
1.8.2 In one case, a campaign group asked its
members through a website to ask multiple questions to forces.
Postings to this website then suggested that an FOI Officer in
one force had lied to them. Derogatory comments about the FOI
Officer were published on the Internet with a suggestion that
other subscribers should telephone the FOI Officer in question.
This led to numerous calls to the FOI Officer's office and requests
which ultimately resulted in this member of police staff leaving
their job.
1.8.3 The Central Referral Process highlighted
another requestor who was making huge amounts of requests of forces
and central government departments. In one quarter, requests submitted
by this applicant constituted nearly 4% of the total requests
to all police forces. Due to the nature of the requests, the CRP
manager researched the requestor and found that information previously
released had been used to gain entry to secure premises by the
applicant who had impersonated public officials. As a result of
intelligence data received, advice was given to all forces and
government departments to classify the requests as vexatious.
This case is currently being dealt with by the Information Commissioner.
2. IDENTIFIED
ISSUES AND
RISKS
2.1 Staff turnover
2.1.1 A clear issue has been identified
regarding the retention of FOI trained personnel by the Police
Service. Turnover of staff is high in regimes that experience
high volumes of requests; for instance, over 50% of the Metropolitan
Police Service staff that received training are no longer working
within the field. This is seen as a high risk for the service
as the skill base is being eroded. This could eventually lead
to problems for forces and their ability to comply with the Act.
It is ACPO's belief that staff turnover issues need to be viewed
as a threat and forces are being made aware of the problem.
2.1.2 Research from Canada and America shows
that FOI staff are valued and support is provided to them in respect
of gaining qualifications. It is not unusual for public authorities
to poach FOI staff from other authorities. For this reason, authorities
such as the FBI and the Canadian Security Services offer good
remuneration to staff to retain them.
2.2 The media's use of the Act
2.2.1 Over the last 12 months, it has been
possible to identify a clear "request cascade" effect
resulting from high-profile press articles regarding policing
matters or the conduct of police officers. Frequently, such articles
lead to a flurry of requests from the general public, typically
numbering around 60 to 100. For instance, earlier this year, a
case regarding a police officer driving at high speed whilst off
duty led to around 120 requests being received from the public.
2.2.2 It has become apparent that certain media
personnel are using the Act regularly. In some cases this has
been as much as 20% of the forces requests have come from a single
reporter. This is replicated over many forces and it seems that
certain media personnel are using the Act as a cheap form of journalism.
This does cause some concern as it has a major impact on the functions
of that force and we feel that this is not what the Act was passed
for.
2.3 Appeals and tribunals
2.3.1 A critical lesson learned overseas
regards appeals. The FBI found that whilst appeals only account
for around 3% of their case workload, they can take up at least
25% of their staff's time. Due to this, all appeals to the ICO
are examined by the CRP and some internal reviews are conducted
for quality assurance purposes.
2.3.2 The above process highlighted that there
was some inconsistency in the way forces had been applying exemptions
and a lack of understanding of the Public Interest Test. After
consultation with the ICO, the CRP created a new training programme
and this has now been delivered to every force. As a result of
this training, response letters now include the harm that disclosure
may cause, fully explain the use of exemptions and offer a full
Public Interest Test. ACPO believes that this process was essential
in order to reduce the number of internal reviews and appeals
which take considerable resources to resolve.
2.3.3 This is an area that ACPO sees as high
risk for the next 3-5 years and work is ongoing to research the
number of appeals that may be reduced.
2.4 Culture change
2.4.1 ACPO notes that its experience through
the CRP is that a large number of ACPO leads have embraced the
Act and are consistently agreeing to the publication of significant
volumes of material. However, at the other extreme, some ACPO
leads are more resistant to embrace this change. For instance,
only 32 Chief Constables are publishing their expenses. A key
aim of the Act was to encourage the development of an open culture.
This is in its embryonic stage and can be evidenced by some high
profile releases such as the Soham report and Special Branch's
release of anti-apartheid files.
2.4.2 Decision-makers are an important resource
in trying to encourage a culture of openness within public authorities.
ACPO is trying to establish the decision-maker as the arbiter
between the requestor and the organisation to ensure that as much
information as possible is disclosed. This is often a difficult
role and FOI Officers do occasionally face resistance from the
organisation. This is an area that ACPO is looking to focus on
at the centre to support the decision-makers. Feedback from a
number of FOI Officers is that they are actively looking to leave
their roles because of this pressure.
3. RELATIONSHIP
WITH THE
DCA
3.1 The Police Service has maintained a good
working relationship with staff within the Department of Constitutional
Affairs (DCA) Clearing House and typically daily contact occurs.
This relationship has improved greatly with the appointment of
dedicated officers for the Police Service within the DCA Clearing
House. However it is noted that, as identified in the previous
report for the Parliamentary Committee, the DCA continue to experience
a consistently high turnover of staff. This has only caused minor
problems while staff familiarise themselves with the issues within
the Service.
3.2 The DCA Clearing House has assisted the Service
on numerous occasions and is always willing to assist in complex
cases or legal arguments. This has assisted ACPO in gaining legal
interpretation of particular issues. It has also helped to ensure
harmony between Government and ACPO in relation to requests crossing
both sectors. This excellent relationship has been very beneficial
to the Police Service.
4. RELATIONSHIP
WITH THE
ICO
4.1 ACPO continues to enjoy a very good working
relationship with the ICO. As noted in ACPO's previous report
for the Parliamentary Committee, this is an area in which ACPO
has confidence and appreciates the support the ICO has provided.
In the early stages, a two-way feedback mechanism was established
on both good and bad practice between the ICO and ACPO. Examples
where this feedback mechanism was utilised was the harsh tone
of some of the ICO letters and the non-specific Public Interest
Tests applied by forces. This has led to improvements by both
bodies and the communication lines are now formalised.
4.2 In 2005, 27 appeals have been referred to
the ICO for final adjudication. Of these, seven cases were upheld
and three were overturned. ACPO is waiting 17 adjudications at
the time of writing. The complexity surrounding some of these
cases has resulted in ICO decisions taking considerable time.
Indeed, ACPO notes that the ICO is still working on an outstanding
case in relation to Registered Sex Offenders that was submitted
for a decision in March 2005.
4.3 The Service continues to use its contacts
within the ICO office that is has maintained since 2003. ACPO
continues to discuss specific interpretation of exemptions and
problems that the Act has caused. This contact is extremely useful
and very efficient.
5. RELATIONSHIP
WITH THE
CAMPAIGN FOR
FREEDOM OF
INFORMATION
5.1 ACPO worked closely with the Campaign for
Freedom of Information (CFOI) whilst preparing for the legislation
and this relationship has continued. It continues to seek advice
from the CFOI and particularly from Maurice Frankel. ACPO appreciates
the open and honest relationship that exists and always welcomes
any feedback or suggestions on how the Service can improve its
performance and its interface with the public.
6. FIVE-YEAR
STRATEGY
6.1 It is the belief of ACPO that this is still
the "honeymoon period" regarding the implementation
of the Act. The development and use of the Act over the next two
to three years will be critical in determining the future approach
of the Police Service. Indeed, as noted above, clients are already
evolving and producing more challenging requests.
6.2 Following the lessons learned from law enforcement
agencies overseas, ACPO is in the process of developing a five-year
strategy for FOI. The strategy will address issues such as staffing
requirements, training and enhancement of the publication scheme
and FOI processes. ACPO sees this as an essential task so that
the Service can continue to be compliant with its obligations
within the Act whilst maintaining normal business processes.
6.3 Contact has been made with the FBI and Canadian
law enforcement agencies to research their strategic planning
methodologies in respect of FOI. This work will be shared with
all forces and the criminal justice sector to save duplication
of work.
Association of Chief Police Officers
March 2006
| 
