My evidence will address the following three
themes from the inquiry's terms of reference:
— The role of the Information
Commissioner in providing guidance, issuing decisions and participating
in Information Tribunals.
— Requesters' experiences of the first
year of FOI implementation.
— The role of the DCA in providing
central guidance, including the operation of the central government
clearing house.
INTRODUCTION
1.1 From overseas experience the success of any
Freedom of Information regime in facilitating the release of new
information of public value into the public domain is generally
based around four key factors:
— Tightly drawn legislation that has
a strong presumption in favour of disclosure.
— A developing culture of openness
in public authorities supported by senior managerial and political
positions as a stated and implemented policy.
— An independent ombudsman or information
commissioner that consistently applies a high level of authority
to enforce the legislation and promoting best practice.
— A balanced level of central coordination
and control of requests that improves the consistency and quality
of responses that applicants receive whilst not subjecting certain
requests to unfair levels of scrutiny and delay.
1.2 It is my view that the first year of the
Freedom of Information Act was characterised by tentative enforcement
and dissemination of best practice by the ICO and in central government
there appears to be an excessive level of central control. 2005
exposed many weaknesses in the legislation allowing excessive
delays to take place for requests, internals reviews and appeals
to the ICO. The process of cultural change is underway, with many
public authorities showing a clearly defined approach of openness
balanced against many who see FOI as a burden and have responded
with delay and highly protective use of exemptions.
1.3 The decisions made by the ICO in late 2005
and early 2006 do offer encouraging indications that 2006 will
see the backlog reduced and a number of decisions that push new
information into the public domain.
2 THE ROLE
OF THE
INFORMATION COMMISSIONER
IN PROVIDING
GUIDANCE, ISSUING
DECISIONS AND
PARTICIPATING IN
INFORMATION TRIBUNALS
2.1 Providing guidance, advice and disseminating
best practice
2.1.1 From contact and discussion with practitioners
I have found that the information commissioner's guidance has
been an important source of reference in helping them handle freedom
of information act requests. A common problem cited by practitioners
is that the process for updating and adding new guidance and subsequent
alerting is not clear, for example new guidance on refusal notices
was produced in January 2006[17]
without clear signposting or alerting on the ICO website. The
production of such new guidance labelled as a "best practice
note" reflecting on operational experience of the Act is
important. It is often not clear when guidance was produced or
when it is likely to be revised.
2.1.2 An example of a guidance note that requires
review is guidance note no 2: "Information provided in confidence".[18]
The note still references an element of the S45 Code of Practice
related to the approach public authorities should take in refusing
to accept confidentiality clauses. This element was removed when
the S45 Code was redrafted in November 2005 (the redrafting of
the clause was of high significance, as detailed in the letter
from the Campaign for FOI to the DCA from the same date). [19]
2.1.3 Guidance on fees: the ICO has still not
produced any guidance on fees despite information stating that
it will be published being on the ICO website for over a year.
2.1.4 Records Management: compliance with the
S46 Code of Practice. In guidance note 8: Records Management FAQs[20]
the IC stated a paper would be produced on "setting out his
approach to audits/inspection" on this issue. This paper
has not yet been produced. I believe that the role of records
management audits is an important issue in improving the standard
of the records management and that the ICO should make an effort
to promote and encourage. The training courses I have run on this
issue have been oversubscribed and would indicate a "knowledge
gap" currently in the public sector.
2.1.5 The relationship with the DCA guidance
is not always clearly flagged on the website, whilst it is accepted
that ICO is an independent body of the DCA. There is little acknowledgement
of other guidance being available on the DCA website.
2.1.6 Under Section 48 the Information Commissioner
has the powers to issue practice recommendations, I made an FOI
request to the ICO during November 2005 and found that none had
been issued. A publicly available list of practice recommendations
could be an important tool in disseminating best practice.
2.1.7 There is often best practice guidance contained
in the correspondence from the ICO to public authorities related
to complaints. This correspondence could be more effectively captured
and disseminated as best practice to the wider practitioner community.
This was evidenced by an FOI request made by myself to the ICO
for all "best practice correspondence relating to Decision
Notice cases".[21]
An example of one letter received from this request is included
as appendix A (not printed).
2.1.8 Some examples of inconsistent advice from
ICO and DCA have emerged. One example: I have been sent an example
of an ongoing case where the complainant to the ICO was told their
case was closed as the public body concerned (a body funded by
the Learning and skills Council) was not subject to the FOIA only
for only for the DCA to confirm that the body was.
2.2 ICO and the Information Tribunal: implications
for guidance
2.2.1 I would like to highlight that of the Information
Tribunal Decisions issued so far there have been implications
for the guidance issued by the ICO in the following cases:
2.2.2 The John Connor Press Associates Limited
v The Information Commissioner. This case has implications for
guidance issued on the S43 Commercial interests exemption in terms
of whether information released about one procurement can effect
another ongoing set of negotiations. The ICO guidance has yet
to be updated to reflect or acknowledge this decision.
2.2.3 Mr R Bustin v The Information Commissioner:
Although the tribunal upheld the Commissioner's decision, the
tribunal made an important note on the issued of deleted information:
"The Tribunal interprets this as meaning that where the deleted
or unamended information is still readily accessible and this
is the information that the applicant wants, then the deleted
or original version of the information should be recovered and
that is what should be communicated to the applicant, with perhaps
an explanation of what has happened to the information since the
request was received." The Tribunal also noted: "The
Information Commissioner should give serious consideration to
issuing guidance to Public Authorities on this matter, and to
enquiring himself, where appropriate, in relation to complaints
made to him, whether an authority has considered the recovery
of deleted material."
The ICO guidance note 8: Records Management FAQs[22]
states (nearly four months after the ruling): "If the information
is contained within a record that is due for destruction within
20 days of the request being received, there is no requirement
to release the information." And "Information on a back-up
server is not regarded as being held by a public authority for
the purposes of the FOI."
This relates to the point earlier that it is currently
unclear what procedures are in place to periodically review guidance
issued and what will trigger a review.
2.2.4 Mr A Mitchell v The Information Commissioner.
This decision concerned the S32 absolute exemption for Court Records
and although because the information had been destroyed the decision
was not changed the discussion in the tribunal decision has important
implications for guidance note 9[23]
that has not yet been updated.
2.2.5 Mr E A Barber v The Information Commissioner.
This tribunal decision was important in terms of a request that
was interpreted by the ICO as being "framed in general and
subjective terms focusing on the complainant s opinions of the
alleged actions of the Inland Revenue" The Tribunal stated
". . . As a result we find the Commissioner was wrong in
law to find that the Inland Revenue have no information to provide
in response to his request. The decision is crucial in terms of
guiding public authorities as to what an FOIA request is. The
ICO does not currently provide a guidance note on "what is
an FOIA request".
2.2.6 At present there is little or no acknowledgement
of the decisions made by the information tribunal in the ICO website.
At present the position of the ICO's guidance and relationship
with the tribunal decision is unclear.
2.3 Case management
2.3.1 The backlog of cases is still of major
concern to both users of the Act and practitioners. The written
answer given to Norman Baker MP on the 27 February[24]
offers clear evidence of the problem. The data illustrates that
the number of complaints received is remaining at a similar high
level month on month and that problem should not be dealt with
by the ICO in terms of presuming the number of complaints will
reduce therefore allowing it to focus on the backlog. Overseas
evidence (in the UCL report commissioned by the ICO[25])
indicates that case volumes may grow in year 2.
2.3.2 However it is noted there appear to have
to be recent improvement in the last two months in the number
of cases determined.
2.3.3 From FOI requests made to the ICO for spreadsheets
containing the complaints received by the ICO logged in their
case management system data quality issues are apparent that could
hamper consistent management of cases. Eg the names of public
authorities in the case management system do not appear to be
selected from a defined list -for example the Ministry of Defence
is recorded four different ways.
2.3.4 Whilst the ICO does provide a Complaints
form, [26]the
form provided can only be printed off and no automated system
is provided. The ICO needs to consider offering a much greater
level of Internet based automation. An online form via its website
linked to the back office case management system would offer a
better standard of service to complainants for the following reasons:
the ICO could quickly remove unsuitable cases from the system,
move to clarify missing or unclear information in a swifter manner,
complainants could immediately (via email) receive an acknowledgement
that their application has been received and they could receive
a ID for their complaint to track in the system. Whilst it is
to be acknowledged that the above suggestion may have a high resource
overhead, given the current focus on e-government it would be
a relevant option to consider.
2.3.5 Whilst the DCA does produce an online guide[27]
to authorities covered by the Act neither the ICO or the DCA offer
a definitive list.
2.3.6 In contrast the Scottish Information Commissioner
(SICO) offers a spreadsheet download of all public authorities
covered by the Scottish Act. Whilst it is to be acknowledged that
that the Scottish context is much smaller, I see no reason that
sector by sector lists could not be produced and published by
the ICO over time as resources permit.
2.3.7 The (SICO) also offers a contrasting approach
to case management in terms of the proactive release of information:
the SICO offer a list of ongoing investigations on the website[28]
and the SICO also publishes all the following documentation on
its website: [29]
— Investigations procedure note 1:
allocation of investigations.
— Investigations procedure note 2:
Construction of the Commissioner's decision.
— Investigations procedure note 3:
Investigations involving the Scottish Executive.
— Investigations procedure note 4:
extending the four month time limit.
— Investigations procedure note 6:
technical investigations.
2.4 Decision notices
2.4.1 I wish to highlight the comments in the
Information Tribunal Decision notice in the Barber V ICO case:
"It is not for the Tribunal to determine how the Commissioner
should conduct his investigations when considering a complaint
under s50 FOIA. However the Tribunal notes that the Commissioner
in coming to his decision in relation to Mr Barber s request did
not appear to communicate in any substantive way with Mr Barber
or the Inland Revenue until sending out the Decision Notice, except
perhaps to acknowledge the complaint and respond to enquiries
on the progress of the investigation. We would have thought that
there would be very few complaints where the Commissioner could
only rely on the complaint notice and any accompanying documentation,
particularly where the complainant is not represented."
2.4.2 The issuing of decisions during 2005 raised
a number of issues related to backlog that have been widely raised
and discussed. In terms of planning it should be noted that the
ICO Commissioned research from the UCL Constitution Unit: "Estimating
the likely volumes, sensitivity and complexity of casework for
the Information Commissioner under the Freedom of Information
Act 2000 and the Environmental Information Regulations"[30]
2.4.3 The number of complaints received during
2005 (2000 approx.) is well within the projection in the research,
as indicated in table 14 from the report.
| Year | 2005
| 2006 | 2007 | 2008
| 2009 |
Lower forecast
(excluding requests for personal information)
|
1,250 |
2,000 |
3,000 |
3,500 |
4,000
|
Higher forecast
(including requests for personal information)
|
3,000 |
6,000 |
7,000 |
8,000 |
9,000
|
| | |
| | |
2.4.4 The process of the issuing of decision notices was initially
less than transparent—the first notices were placed on the
ICO website only in summary form, then leading to FOI requests
being made for the full notices.
2.4.5 The decision notices have been broken down by section
of the FOIA by the UCL constitution unit[31]
a feature the ICO website should offer (as do the Scottish and
Irish ICOs for example).
2.4.6 Evidence suggests the ICO prioritised the focus of decision
notices during 2005 on procedural based complaints as opposed
to exemption based. The following data illustrates the majority
of the decisions issued in 2005 were procedural (sections 1, 9,
10, 16, 17). The breakdown by time is as follows:
— January to June 2005: 18-19 procedural notices
issued.
— July 2005: 12-16 procedural notices issued.
— August 2005: 7-11procedural notices issued.
— September: 8-9 2005 procedural notices issued.
— October 2005: 13-15procedural notices issued.
— November 2005: 31-41.
— December 2005: 19-21.
— January 2006: 3-6.
— February 2006 10-17.
— Total: 12-/155.
— 78% Procedural.
2.4.7 Whist the above data above needs to take into account
the number of complaints that were procedural (data I do not have
access to), there is a clear need to ask questions as to how cases
are prioritised and how many exemption based cases lie the backlog.
2.4.8 Many of the decision notices issued in 2005 failed to
document all the considerations, processes and deliberations that
would enable a practitioner or member of the public to fully understand
how the decision had been reached. As an illustration out of the
decisions issued in 2005, the author wishes to highlight the following
three selected examples of decision notices that lack clarity:
2.4.8.1 Case: South Holland District Council. Case Ref: FAC0065281
Summary: Complainant objected to £25 charge imposed by the
Council for providing 296 pages of photocopied information relating
to the erection of wind turbines. The ICO accepts the Council's
view that this charge is reasonable. Section of Act/EIR and Finding:
EIR r.8—Complaint Not Upheld. The decision notice issued
does not offer any discussion or consideration as to why the IC
regards the charge as meeting the criteria of "a reasonable
amount". Although in fact the charge when calculated works
out at less then 10p sheet—there is no acknowledgement of
this and the decision makes no reference to the Code of Practice
and guidance issued by DEFRA on the environmental information
regulations that states: "Public authorities should ensure
that any charges they make are reasonable, and in accordance with
the EIR and the guidance." The DEFRA Code of Practice also
states: "When making a charge, whether for information that
is proactively disseminated or provided on request, the charge
must not exceed the cost of producing the information unless that
public authority is one entitled to levy a market-based charge
for the information, such as a trading fund." [32]It
is not clear whether this aspect has been considered by the ICO.
2.4.8.2 Case: Public Authority: London Borough of Hounslow.
Case Ref: FER0074855. Summary: Having inspected information contained
within particular planning application files, the complainant
requested copies of various documents from these files. He was
charged £188 for provision of the information under the Environmental
Information Regulations 2004 and complained that this charge was
excessive. The Commissioner's decision is that the Council has
satisfied itself that its charges do not exceed a reasonable amount
in accordance with Part 2, paragraph 8(3) of the Regulations.
Section of the Act/EIR & Finding: EIR r.8—Complaint
Not Upheld. [33]Again
as in the previous case the considerations of a "reasonable
amount" are not documented.
2.4.8.3 Case: Cornwall County Council. Case Ref: FS50075186.
Summary: The complainant requested a copy of an approved drawing
of a street plan and alleged that the Council wrongly stated that
the information specified in their request was not held. The drawing
did come into the Council's possession and was subsequently provided
to the complainant. The ICO is however satisfied with the Council's
assurances that it did not hold the information at the time of
its response to the initial request. The complainant lodged an
appeal with the Tribunal, which was subsequently dismissed. Section
of Act/EIR & Finding: FOI s.1—Complaint Not Upheld.
[34]The decision issued
stated: "The Information Commissioner has approached Cornwall
County Council for verification and is satisfied that the information
was not held by the Council at the time of the request and, therefore,
could not be provided to the complainant", this statement
does not give any indication of what effort the ICO made to verify
that this information was not held.
2.4.9 During late 2005 and early 2006 the IC made a number
of important decisions that set precedents that mark important
advancements in enforcing the Act and bringing new information
into the public domain. The author wishes to commend the decisions
issued in the three following cases:
— Derry City Council February 2006: IC requires
the disclosure of the City Airport Agreement with Ryanair.
— DFES January 2006: IC requires the disclosure
of minutes of senior management meetings and the identities of
Civil servants noted at the meeting.
— Bridgend County Borough Council. IC requires
the disclosure of a restaurant inspection report.
— The level and depth of the notices issued are
also markedly improved compared to earlier in 2005.
2.5 Information notices
2.5.1 A freedom of information request was made by myself
to the ICO for details of information notices issued under 51
of the FOIA. By November 2005, 11 months into the operation of
FOIA five had been issued to the following public authorities:
— University of Cambridge.
— Corby Borough Council.
— Hounslow PCT.
— NHS Purchasing and Supplies Agency.
— East Riding of Yorkshire Council.
2.5.2 The ICO's position of "negotiation and discussion"
in gathering information may need to be altered to enable swifter
resolution in cases where public authorities are slow to respond
and provide information required. The ICO also need to indicate
publicly that information notices are being used and in which
circumstances.
2.5.3 Section 8 of the Memorandum of understanding between
the ICO and Government Departments states that: "The Commissioner
will not normally serve an Information Notice under section 51
of the FOI Act on any government Department unless he believes
that relevant information is being withheld from him or that there
has been undue delay in providing the information requested. Where
the Information Commissioner intends to serve an Information Notice,
wherever possible he will inform the Department in advance."
The need for this statement has not been clearly explained by
the ICO or DCA.
2.6 Memorandum of understanding and pre-decision notices
2.6.1 The justification for the "Memorandum of Understanding
(MoU) between the Secretary of State for Constitutional Affairs
(on behalf of government Departments) and the Information Commissioner,
on co-operation between government Departments and the Information
Commissioner in relation to sections 50 and 51 of the Freedom
of Information Act 2000"[35]
has not been clearly explained in detail by either the ICO or
the DCA and practitioners in the other sectors can rightly feel
that the playing field in not level.
2.6.2 Evidence indicates that in practice preliminary decision
notices have not been widely used. I made an FOI request asking
for details of preliminary notices issued and by November 2005
only 2 had been issued (Child Support Agency and the Office of
Government Commerce)
3 REQUESTERS' EXPERIENCES
OF THE
FIRST YEAR
OF FOI IMPLEMENTATION
3.1 I have made many requests to central and local government
and have observed many aspects of good and bad practice, plus
areas where the weaknesses in the legislation often compound the
problem.
3.2 Customer service aspects
3.2.1 The author has experienced a marked contrast between
the Central and Local Government in terms of advice and assistance
in terms of S16 of the FOIA. Although these comments are generalised
the author experienced a much greater willingness in local government
to acknowledge requests and quickly make contact, often by telephone
to assist in clarifying any aspects of the request.
3.3 Delay
3.3.1 Delay is one of the most common problems cited by myself
and other requestors I have come into contact with. The highest
delay the author has experienced was a delay of 74 days in a request
sent to Department for Constitutional Affairs.
3.3.2 The loophole of allowing public authorities when considering
the public interest to extend beyond the statutory 20 working
days time limit under S10(3) of the FOIA: "until such time
as is reasonable in the circumstances" is vague and very
open ended and subject to wide missaplication. For example: the
author received the following vague statement from DEFRA: "The
Act allows us 20-working-days to respond to your request from
the date of its receipt. However, it is occasionally necessary
to extend the 20 working day time limit for issuing a response.
In this case, I regret that we must extend the time limit for
responding by up to 20 working-days", with no further explanation.
3.3.3 The removal of the following statement: "Public
authorities should aim to make all decisions within 20 working
days, including in cases where a public authority needs to consider
where the public interest lies in respect of an application for
exempt information. However, it is recognised there will be some
instances where it will not be possible to deal with such an application
within 20 working days." from the S46 Code of Practice in
December 2005 has left S10(3) to very open ended interpretation.
3.3.4 The lack of acknowledgement is a commonly cited frustration
for requestors—it is often unclear if the authority has
received and processed the request. I would highlight the provision
in the Irish Freedom of Information Act[36]
that states that all requests must acknowledged within 10 working
days.
3.4 Form and format—reasonably practicable
3.4.1 The author has experienced government departments refusing
requests in the grounds of form and format without considering
the "reasonably practicable" S11(1)c of the Act. Example
from received from the Northern Ireland Office: "You also
asked for a list of all Freedom of Information requests and releases
since January 2005. The NIO does not hold this information in
the format you have requested, and to enable the NIO to answer
this we would have to create a document to list requests received
which is outside the scope of the requirements for us to comply
with the Freedom of Information Act."
3.5 Cost calculations—users not realising the benefits
of records management
3.5.1 Before 2005 the benefits of records management were
widely discussed and new records management programmes and systems
were implemented. It is my impression that too often the benefits
of improved records management are not felt by users: public authorities
have benefited from streamlined procedures for the retention of
records but the user has not benefited from electronic document
and records management systems (EDRMS). I have had requests refused
for being above the cost limits to locate and retrieve information.
It is my belief that the requests have been immediately rejected
because the authority concerned has viewed the request with a
"paper based" mindset. In many cases I believe that
an advanced electronic search of the EDRMS that could take a matter
of minutes has not even been attempted. It is only when the complaint
reaches the ICO that these issues can then hope to be resolved.
3.6 Application of exemptions—time
3.6.1 I have had experience and have seen many examples where
public authorities apply exemptions uniformly and do not consider
the reduction of prejudice over time in such exemptions. An example
the author has seen involved the application of the S38 exemption
by a police force to cases files from a 1928 murder on grounds
of "of the health and safety of surviving family members
and/or relatives of the victim" even though both sides have
publicly stated they have no objections.
3.7 Internal Reviews
3.7.1 The process of internal review can be varied across
the public sector with no time limit seemingly set for an internal
review as yet in terms of an intervention by the ICO. The FOIA
compares badly with the Scottish Act in this respect which states
that public authorities must reply promptly and within 20 working
days.
3.8 Use of the Internet by public authorities
3.8.1 The primary vehicle for the public to find out information
about how to make freedom of information requests is the Internet.
From the outset some public authorities make the process of guiding
the requestor an easy one: explicit links to "freedom of
information" from the home page of the website guide the
requestor to a simple set of wepages listing the various methods
to make a request and guidance that encourages requests and helps
the framing of requests. The screen shots below illustrate the
approach taken by Wigan Council
3.8.2 The primary method of delivery for publication
schemes is the website of the authority: I have conducted research
using FOIA requests for log files detailing the number of page
views. [37]The figures
illustrate that publication schemes are used by the public to
varying degrees, better in central government, though use in local
government is disappointing. To take two examples: the main page
of the Cabinet Office publication scheme received approximately
2,000 visits a month, this compared to 50 for a Local Council.
3.8.3 Many public authorities have not reviewed their publication
schemes since inception, also publication schemes require much
greater sign posting for users and greater integration with the
contents of websites rather than standing alone.
3.8.4 Despite the advances in e-government that have been
achieved in the last few years few public authorities have taken
the opportunity to offer e-government style services to users
such as online forms and tracking systems. This approach is being
considered in other jurisdictions: In 2005 US an Open Government
Bill was published proposing tracking numbers and tracking systems
via phone or Internet for each FOIA requests. [38]
3.8.5 There is a lack of a user-friendly citizen portal/gateway
on the Internet to assist people to make requests, at present
the Directgov website only offers a very basic guide to the Act.
An innovative gateway has been provided by Friends of the Earth—who
provide an information request generator. [39]
3.8.6 It is very hard for users to access more than one publication
scheme and currently there is no central website to act as a gateway
with links to all publication schemes I consider this a large
gap in promoting their use.
3.8.7 I would like to commend the public authorities that
have created, via their websites disclosure log or request logs.
[40]Disclosure logs illustrate
to the public the information that has been released—illustrating
the openness of the authority and will help to answer repeated
requests on "hot topics". They also have a high value
in "adding value" to the information released by exposing
to a wider audience.
3.8.8 The main issue with disclosure logs is the lack of standardisation
and inconsistency. Some authorities will use the log too list
all requests received for example Norwich and Norfolk University
NHS trust[41] lists all
requests and even names organisations who have made requests,
whereas the Department of Education and Skills[42]
takes a most recent and most viewed approach that only highlights
selected releases. Historians are rightly worried about this selective
approach and the issue of what happens to releases once they are
removed from the website. It is important that records of all
releases are maintained for historical purposes. The possible
scenario could arise that information is released, placed on a
disclosure log for a year then removed and is not subsequently
retained as record to be transferred to the National Archives.
3.8.9 I commend the recently announced funding for the HE
sector by JISC for disclosure log templates to be developed for
all public authorities in the HE sector that will enable consistent
indexing and extraction of disclosure log data.
3.9 Public authorities outside the scope of the FOIA
3.9.1 The following bodies are not covered by the Freedom
of Information Act 2000 that I would highlight for inclusion under
the FOIA:
