Evidence submitted by the Information
Commissioner
INTRODUCTION
1. I welcome the opportunity to contribute
to the Committee's follow-up to its report "Freedom of Information—one
year on". Although prompted by the Government's consultation
on the proposed changes to the charging regime for FOI requests,
I can provide an update on the ICO's Freedom of Information (FOI)
work, particularly in relation to complaints-handling.
THE EXISTING
COST LIMIT
AND CHARGING
REGIME
2. When I gave oral evidence to the Committee
a year ago I expressed the view that the existing fees regime
was working well and that it had the advantages of being simple,
clear and straightforward. It did not appear to act as a deterrent
to requesters. Nothing has occurred since then to cause me to
change that view.
3. During the first two years' full operation
of the FOI Act my office received a total of almost 5,000 complaints,
but of these only 32 related either wholly or in part to the way
the cost limit provisions under section 12 of the Act and the
Freedom of Information and Data Protection (Appropriate Limit
and Fees) Regulations 2004 had been applied. Under these regulations,
only the time spent by the public authority on searching for,
identifying and retrieving the requested information can be included
when estimating whether the cost limit is likely to be reached.
4. Of a total of 478 Decision Notices issued
by my office as of the middle of February 2007, only 13 related
to complaints where the cost limit was an issue. Most of these
cases also involved a failure by the public authority to give
appropriate advice and assistance to the requester, to enable
the request to be modified, so as to bring it within the cost
limit. This accords with good practice under the Secretary of
State's Code of Practice issued under section 45 of the Act. In
all but one of these cases the ICO was satisfied that there was
evidence to support the estimate for compliance with the full
request, so the decision that the cost limit would be exceeded
was justified. A summary of these 13 Decision Notices, as published
on the ICO website, is appended to this submission [not printed].
VEXATIOUS REQUESTS
5. In my evidence to the Committee last
year, I also expressed my surprise that more use had not been
made of section 14 of the Act, which absolves public authorities
from the obligation to comply with vexatious requests. I have
frequently repeated this view on public platforms and in meetings
with Ministers, government officials and other public authority
representatives and advisers, as have my staff.
6. Following the lead Decision Notice on
this subject, involving Birmingham City Council, to which I referred
last time, the ICO has issued a further 13 Decision Notices about
requests which public authorities claimed were vexatious. In 8
of these cases the ICO agreed with the public authority. A summary
of all these decisions, as published on the ICO website, is appended
to this submission [not printed]. At the time of writing,
29 complaints involving requests which the public authority claim
are vexatious are open, unresolved, at the ICO.
7. I have indicated in my response to the
DCA consultation on the draft new Appropriate Limit and Fees Regulations
2007 my intention to review and strengthen the ICO's guidance
to public authorities on handling vexatious requests in the light
of the experience of the first two years. In my view, much of
the "mischief" which the draft regulations are apparently
designed to address can be addressed using the existing provisions
of the Act.
RESPONSE TO
THE GOVERNMENT'S
CURRENT PROPOSALS
8. I have appended to this submission my
response to the DCA consultation paper on the draft regulations.
The Committee should treat this as being incorporated into this
submission. I do not propose to rehearse my concerns about these
proposals further here. However, I have grave doubts about the
efficacy of the proposals on aggregation. I also believe that,
if implemented and applied by public authorities, the total net
effect of the proposals will be to arrest the flow into the public
domain of a very significant amount of information of genuine
public interest which has been such a striking achievement since
the Act was fully implemented in January 2005.
9. My response to the consultation is focussed
on the likely impact on the ICO. This has to be considered in
the context of all the issues facing the ICO as the adjudicator
on FOI complaints. In its report last year, the Committee reflected
the widespread concerns regarding the ICO's complaints-handling
performance in the first year of FOI, but recognised that significant
steps were being taken to improve, applying the lessons learned
and with the benefit of external support. The ICO Progress Report,
published in October 2006, outlined the improvement achieved and
indicated what still had to be done. The remainder of this submission
provides the Committee with a further update on progress, to the
end of 2006.
CASEWORK RECOVERY
PLAN
10. The Casework Recovery Plan continues
to provide a framework for complaint handling improvements. We
have continued to improve our organisation and processes, providing
detailed monthly reports of our performance. Induction and training
has been completely overhauled, with new starters now participating
in a rigorous programme of classroom and desk based training.
On taking up post they have access to improved procedural guidance
and a knowledge management system populated with lines to take
and policy guidance. We have also built on the early changes we
introduced to implement our "right first time" principle
and this work will continue into 2007-08 when we face fresh challenges
relating to funding.
FOI CASE RECEPTION
UNIT
11. This unit reviews every case for eligibility
on receipt. Where cases are ineligible, we contact the complainant,
providing advice as necessary. When eligible, the case is acknowledged
and we notify the public authority. This early contact can remind
the public authority of the original request and this may prompt
immediate release of information, effectively resolving the complaint
within days.
12. The case is then passed to the appropriate
team where it awaits allocation to a complaint officer. This case
reception system continues to weed out cases which are not suitable
for further consideration. It provides individuals with early
notice of this as well as any advice to assist them in re-presenting
their complaint. Public authorities also get earlier notification
that an eligible complaint has been lodged against them.
FOI SECTOR TEAMS
13. Our sector teams, established in July
2006, are working well. There are six specialist teams altogether
covering health and transport, education, police and justice,
two for central government and two for local government. One of
the central government teams is based in London. We also have
small teams based in Cardiff and Belfast which consider eligible
complaints about public authorities for which devolved administrations
are responsible.
14. With six months experience we are confident
that these teams provide the focus needed to resolve a broad spectrum
of complaints whilst being able to identify sectoral issues and
trends.
PROCESS IMPROVEMENTS
15. The process changes introduced in June
2006 have enabled us to make significant improvements in complaints
resolution. Most notably on straightforward complaints which,
if eligible, are now passed onto a complaints officer within four
weeks of receipt.
16. Our greatest challenge continues to
be the high number of complex complaints which are under investigation
or remain in the current backlog. We may prioritise some cases,
where the complaint might be time-critical or represents a path-finder
case, resolution of which could close a number of others, or give
direction on a particular topic. Cases can also be grouped if
there are similarities with the parties involved or the issues
raised.
17. However, individuals bringing complex
cases which do not fit into these categories are still waiting
too long before we can begin to consider their complaint in detail.
INDUCTION, TRAINING
AND PROCEDURES
18. We now have a comprehensive induction
programme in place. Following a successful pilot in July 2006,
new starters now receive a mixture of desk and classroom training.
Once in post, they are supported by a comprehensive procedures
manual and improved knowledgement management tools.
19. We will build on these achievements
and in the spring of 2007 will pilot a bespoke training course
for caseworkers. The aim will be to train staff to deal with cases
in a way that is proportionate to the issues involved. We will
focus on the issues that are central to the case and reach a decision
in a realistic timescale. Our aim is to ensure that cases are
dealt with quickly whilst maintaining quality.
IMPROVING QUALITY—"RIGHT
FIRST TIME"
20. We have continued to develop this approach
which builds quality into the investigation process from the beginning.
Early changes introduced in April 2006 have speeded up the decision
notice approval processes. We also use Case Review Panels to progress
particularly complex cases by capturing input from a panel of
internal experts in one session.
21. As we face a new financial year with
resources limited to baseline funding, we are returning to this
early work with a view to extending this principle further. The
Commissioner has already signalled his intention to be tougher
with Public Authorities now that they have had time to become
familiar with the legislation. We have issued information notices
and have made our first practice recommendation, but our more
robust approach will also extend to the way in which we handle
investigations.
22. In particular, we will be more demanding
of public authorities expecting them to be able to set out full
and final arguments for withholding information in one clear submission
and to respond quickly to requests for information.
DECISION NOTICES
23. The preparation, content and dissemination
of decisions is much improved. We have now improved the format
of decision notices to give a clearer structure to more complex
decisions. This enables the parties to better understand our reasoning
and make a more informed decision whether to accept or appeal
our ruling.
24. We now have a decision notices database
on our website which was launched in August 2006. This allows
swift retrieval of the notices, which are searchable by case reference
number, name of public authority, section of the Act, date (month
and year) and status (upheld or not). The improved content and
accessibility of decision notices have enhanced the value of the
decision notice as an educative tool for public authorities and
other users of freedom of information.
POLICY DEVELOPMENT
AND KNOWLEDGE
MANAGEMENT
25. Our new policy team, created in June
2006 is now well established and sits alongside complaint teams,
providing a crucial supporting role. It has developed a "lines
to take" database, capturing agreed lines from casework,
decision notices and Tribunal decision summaries.
ENFORCEMENT STRATEGY
26. We launched our Enforcement Strategy
in October 2006. This aims to achieve compliance with the legislation
and observance of the Codes through a combination of advice, negotiation
and formal action. We continue to monitor the performance of public
authorities and non compliance issues are normally dealt with
informally in the first instance. We are increasingly using Information
Notices where the public authority is reluctant to cooperate and
these have resulted in the release of information needed to progress
complaints resolution.
27. In February 2007 we issued our first
Practice Recommendation to a local authority indicating the steps
needed to achieve compliance of practice under section 45. We
continue to work closely with The National Archives addressing
issues relating to non-compliance with the section 46 Records
Management Code.
PERFORMANCE
28. Each month we produce a performance
"dashboard", a single sheet which summarises our performance
against all the key performance indicators. December's dashboard
is attached as Annex X [not printed].
RESULTS
Cases received and closed
29. The figures for cases received show
very clearly how the caseload dipped at the end of 2005 and then
increased sharply at the beginning of 2006. This pattern was repeated
at the end of 2006 and looks set to continue to follow last year's
trend.
30. The closure figures show a steep rise
in output in as we dealt with our backlog of more straightforward
cases. This then levelled off and has started to reduce as we
cleared the backlog of straightforward cases, leaving a core of
complex cases awaiting resolution. Our caseload as at 1 January
2007 stands at 1310.
|
| | Age of cases at closure
|
| Service Standard | 30 days or less
| 90 days or less | 180 days or less
| 365 days or less |
|
| Target 2006-07 | 35%
| 40% | 50%
| 80% |
| Performance to December 2006 | 54%
| 58% | 67%
| 85% |
|
31. We have continued to meet these targets but, as predicted
in our October 2006 progress report, as we have started to close
an increased number of older cases, the percentage of cases closed
which are older than 90 days is increasing. We expect this trend
to continue in the coming months.
APPEALS TO
THE INFORMATION
TRIBUNAL
32. The Information Tribunal, to whom complainants and
public authorities can appeal if they are unhappy with our decision,
continues to make rulings which provide useful commentary and
interpretation.
33. Since 1 January 2005, 127 decision notices have been
appealed to date—27% of all the decision notices we have
issued. The Information Tribunal has consolidated some cases (for
example, where both the complainant and the public authority appealed
the same notice, or where similar issues were dealt with by multiple
notices), making 119 Tribunal cases to date. Of those cases that
have concluded, the outcomes were as follows:
|
| Appeals withdrawn | 32% (17 cases)
|
| Appeal dismissed | 47% (25 cases)
|
| Appeal allowed/partially allowed | 21% (11 cases)
|
|
34. The Tribunal has substituted the Commissioner's decision
in seven of the cases it has ruled on. Public authorities brought
23% (29 cases) of the appeals and complainants 77% (98 cases).
FUNDING
35. Our total budget for 2006-07 is £5.55 million.
This includes additional funding from the Department for Constitutional
Affairs of £850k to address our backlog on top of our baseline
funding which reduced from £5.0 million in 2005-06 to £4.7
million, taking account of a £300k efficiency saving. Our
baseline funding for 2007-08 is set at £4.7 million.
BACKLOG
36. We have eliminated the backlog of straightforward
cases. Many of these are dealt with in less than 30 days by our
case reception team, and the rest are passed through to a Complaints
Officer within 28 days. Complex and sensitive cases need to be
investigated by Senior Complaints Officers.
37. Our total caseload consists of all cases that are
under active investigation and those that have been accepted as
ready for investigation but have not yet been allocated to a caseworker.
The current position is that we have a total caseload of around
1300, where just under 650 are under investigation and just under
600 are awaiting allocation (at any one time the remainder will
be in the final process being signed off). It is these 600 cases
which now make up our backlog and they consist solely of complex
cases.
38. It is worth stating again that, had incoming cases
remained at the projected level of 190 a month (as expected) instead
of averaging out at 215, the improved productivity could have
reduced our backlog by as many as 300 cases.
WORKLOAD FORECASTS
39. The business case we submitted to the Department
for Constitutional Affairs in January 2006 was based on planning
assumptions including, most importantly, a prediction of new cases
each month. We developed these assumptions from the best information
available at the time, in particular the last three months of
2005, which had shown a reduction of incoming cases. On this basis
we projected 190 new cases a month.
40. Actual intake averages out at 215 cases a month.
We now believe this reduction in the last three months of the
year could be a seasonal trend and we saw a similar pattern in
2006. Our most recent planning assumes an average intake of 215
cases a month, assuming the legislation stays the same.
41. In the business case we also planned for an increase
in productivity. Output increased from an average of just under
140 cases closed each month in 2005-06, to 245 each month closed
in the first half of 2006-07. The latter months of 2006-07 saw
a reduction in clearances as we eliminated the straightforward
cases from the backlog, leaving a core of complex cases.
42. In our Progress Report we estimated that by the end
of the financial year we would close 1,500 cases which, assuming
current monthly intake remained at 215, would reduce our over
caseload to 950. This, we estimated, would leave us with 450 complex
cases in a backlog.
43. With three challenging months behind us, we have
revised these estimates and now estimate that by the end of the
financial year we will have closed 1,100 cases, leaving an overall
case load of approximately 1,300.
LOOKING FORWARD
TO 2007-08
44. We estimate that the intake of complaints will remain
constant and have had to accept that we will receive only baseline
funding to cover all our freedom of information activities. In
our Progress Report we reported that with this baseline funding
we would not be able to reduce the backlog of complex cases. This
remains the case.
45. Nevertheless, the ICO's top priority for 2007-08
will be FOI casework. That means focusing the resources available
to us on FOI casework. To achieve this, we have taken a number
of difficult decisions relating to how we spend the limited funds
available to us.
46. The number of staff working in other FOI areas within
the ICO has been pared to the absolute minimum. This effects staff
numbers working on FOI guidance and publication schemes in particular.
We will be able to do some work in these areas, but it will be
less than we had anticipated. Staff released from this work have
been diverted to FOI casework.
47. We have also been forced to postpone a much needed
move to additional accommodation and we have significantly reduced
budgets in other areas. This includes communication, training
and research. The money saved will be used to fund additional
temporary resources for FOI casework.
Richard Thomas
February 2007
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