Justice CommitteeWritten evidence from Association of Chief Police Officers

1. Executive Summary

1.1. Ian Readhead is the current Association of Chief Police Officers (ACPO) Director of Information and responsible for the ACPO Data Protection/Freedom of Information/Records Management portfolio within the Police service. Prior to this appointment, he was the Deputy Chief Constable of Hampshire and responsible for the introduction and implementation of the Freedom of Information Act (FOIA) within the service.

1.2. Although Home Office police forces are public authorities in their own right, ACPO in agreement with all Chief Constables’, formed a Central Referral Unit (CRU) in 2005 in order to support forces in their delivery of Freedom of Information (FOI). In essence, the CRU provides a vital and pivotal role in managing and delivering information which:

Provides consistency in applying FOI principles.

Provides a comprehensive resource for FOI officers.

Ensures consistency in the publication of information.

Operates a referral system to monitor the possible impact on the service.

Prevents inappropriate information disclosures.

Delivers national FOI training across the Police service.

Produces the ACPO FOIA Manual of Guidance.

1.3. The police service shares its data with numerous other partner agencies and the manager of the ACPO CRU is a current member of the NSLG (National Security Liaison Group) which advises on Sec 23 and Sec 24 FOIA issues. In addition, the ACPO CRU maintains a close working relationship with ACPOS (Association of Chief Police Officers Scotland) colleagues.

1.4. In anticipation of duplicate issues being raised by all 44 Home Office forces, ACPO have carried out their own consultation process with the forces and therefore the following comments represent the main observations from that work. Responses were based on the following terms of reference :

Does the Freedom of Information Act work effectively?

What are the strengths and weaknesses of the Freedom of Information Act?

Is the Freedom of Information Act operating in the way that it was intended to?

1.5. ACPO fully supports the main objectives of the Freedom of Information Act 2000 (FOIA—the Act) and considers that when used properly, it is appropriate to have such a regime in place which encourages public Authorities to be open, transparent and subject to scrutiny and accountability by their local communities for their actions and decisions. However, the original purpose and remit of the Act has somewhat become lost because of the way in which it can be used and abused in its application by certain individuals. Whilst most requests are submitted by responsible and concerned citizens or organisations, a significant proportion are simply bizarre or obsessive in nature and do little to advance public knowledge or satisfy a wider public interest.

1.6. Overall, ACPO consider that the implementation of the act has been extremely successful; however the increasing number of requests and the current financial restrictions placed on forces is starting to have a substantial impact on their performance and delivery of FOI.

1.7. What is of concern is the fact that we continue to see a 20% year on year growth in requests in addition to a government led drive to publish more information (Datasets/Transparency Agenda). It is unclear in the current climate as to how public authorities can meet both demands.

1.8. ACPO would certainly welcome any changes to the legislation which reduces the current bureaucracy and assists public authorities in successfully challenging the vexatiousness of some requests. In addition, the “open fishing” experience which allows journalists or media centre’s to trawl for stories without any specific public interest accountability remains a major concern to the service.

1.9. The following are the key points which ACPO believe to be current issues for further consideration and discussion with the select committee:

Recommendations

1. If authorities are increasingly required to publish information, serious consideration must be given to alleviating the current burden in providing what are bureaucratic, duplicated and extensive legislative responses which are confusing and misleading to FOI Applicants.

2. There needs to be a program of education which provides the public with more realistic expectations as to the types of information they are likely to receive.

3. Making the process self-funding by charging a fee for all requests for information—similar to Subject access £10.

4. Lowering the appropriate fees limit and/or time permitted to complete FOI requests i.e from 18 hours to 10.

5. Consider charges specifically to those who use the legislation for commercial benefit.

6. ACPO recommends that reading and redaction time should be catered for within Section 12.

7. Exemption should be class based and absolute for ongoing criminal investigations.

8. A complex exemption which in ACPO’s view requires reviewing.

9. Authorities should be able to include all evidence of the applicants history, including that from other sources and be provided with a structure which removes the need to subjectively decide whether the motives of the applicant are valid or not.

10. ICO to provide clear guidance to authorities, and more importantly the public, that when considering Section 14 an analysis will be made of the individual and their motives.

11. Introduction of some form of deterrent which may prevent these individuals even attempting to misuse the legislation, which can be balanced if similar deterrents ensure public authorities carefully consider its application.

12. Suggestions from forces varied in proposing an increase to the response time of between 30–40 days.

13. ACPO recommends a further analysis of the scheme which identifies what the public want versus what is perceived they want for proactive publication in order to have a real impact in reducing the volume of requests.

2. Background Information

2.1 The Police service has dealt with some 190,000 FOI requests since the act was implemented and continues to see significant rises in volumes.

2005

2006

2007

2008

2009

2010

2011

16,280

19,614

22,360

28,589

35,778

31,122

36, 364

2.2 Interestingly however is the fact that we only receive internal review requests for approx 2.4% of our cases which possibly highlights some success in the overall delivery of the act. However, due to the current review on public spending and the need for Chief Officers to realign their budgets, ACPO detects a move away from the current ability by forces to respond effectively to an ever increasing volume of requests. Emerging evidence to justify this point is being reported to the centre with a growing sense of frustration by staff in simply being considered as a “back office” and non-vital function within their own organisations in comparison to other more important police business areas.

2.3 There is also a notable recent increase in the number of information tribunal hearings which highlight a current concern that such appeal processes are effectively cost free to applicants and therefore possibly open to abuse. The costs incurred in defending such cases are extremely impactive and something which both ACPO and the Information Commissioners Office (ICO) wish to avoid where possible. However, ACPO warmly welcomed a recent tribunal decision to award costs to the Metropolitan Police Service and encourage similar acknowledgements within the process when applicants appear to be abusing their rights.

2.4 Whilst the Information Commissioner as a regulator is a recognised source of informed guidance and direction on the legislation, they sometimes lack understanding regarding those issues involving the disclosure of sensitive police information. This often requires detailed and time consuming interaction with the ICO as they are reluctant to accept what the police service would consider to be a sound and professional opinion as to the risks in seeking to withhold information. This leads to unnecessary duplication of effort in providing the same or similar arguments for each case. We would imagine this is repeated in other business areas such as government, health and education. Therefore, it would be beneficial if there was a less challenging culture by the regulator. In other words, professional and rational opinion should be recognised in applying other exemptions within the legislation, something which only occurs at present within the terms of the Sec 36 exemption.

2.5 On a positive note, FOI requests have actually assisted to identify poor performance or areas for improvement within the police service (Forces failing to identify police officers with Convictions, Murder investigation where FOI applicant turned out to be a vital witness) and therefore FOI requests are considered extremely beneficial in that aspect of business. Unfortunately, the ACPO CRU do not at present have the resources available to collate all force FOI requests which otherwise would provide vital performance data across the UK in some cases.

3. Bureaucracy

3.1 There must be a balanced approach to ensure that the information sought by FOI applicants is relevant to the requirements of the public as a whole. The act was never intended to provide a platform which allowed individuals to carry out a crusade based on a sense of frustration or perceived injustice in their dealings with the public authority.

3.2 On occasions there appears to be a belief held by some applicants that any refusal to provide the information they require is simply not acceptable. This can be based on conspiracy theories or a lack of understanding as to the sensitivities of some information, such as personal data or investigation material. Although relevant exemptions exist for authorities to consider withholding the information, their application has to take the form of a legalistic, technical refusal notice which does nothing to dispel the applicant’s frustration when not receiving the information requested.

3.3 This then leads to an escalation of the case to the ICO and/or Information Tribunal. For the public authority there then follows a complex process in again justifying the arguments already played out with the original applicant. This can take the form of lengthy responses to the ICO caseworkers up to the submission of voluminous duplicated bundles of evidence for a tribunal. Although the ICO has a policy of informal resolution and is often prepared to engage by E mail and telephone, our suggestion would be that this should actually become the norm. We have concerns that the ICO is actually moving away from this approach as they have recently adopted a “one chance” policy when engaging with them. This in itself increases the risk of cases then having to be resolved through the more expensive and legalistic tribunal system.

3.4 Recommendations: 1 and 2.

4. Fees

4.1 There has been an overwhelming response from forces in seeking support for the introduction of charges in respect of FOI requests. The continued demand on resources has led to excessive and disproportionate effort in responding to FOI requests and there is a general perception that Government has failed to recognise the significant costs associated with the administration of the FOIA by larger public authorities such as the police service. Whilst all forces have at least one member of staff assigned to dealing with FOI requests, the majority of work is actually carried out by information owners spread across force areas who are responsible for locating and retrieving the information sought. As a result there is no formal record kept of the actual time spent on such work. Currently force FOI resources are reducing whilst the number of FOI requests continues to grow, against this backdrop the current situation in performance is not sustainable. ACPO strongly believes that this situation requires addressing urgently with a view to considering the following options in reducing the current financial burden on public authorities.

4.2 Recommendations: 3, 4 and 5

5. Cost

5.1 Experience in a recent case (City Of London police) highlights the disproportionate effort made in some cases in being required to read and assess vast amounts of information. In this specific case, there were over 1,830 records, totalling some 250,000 pages which were not catered for under Sec 12 excess costs. The information had been retrievable but required further reading and redaction time which would have amounted to some 2,976 days had the work been carried out. Whilst the force was able to eventually negotiate a solution with the applicant, there is currently nothing within the FOI legislation which caters for this excessive and disproportionate burden on FOI staff. If they had been pressed, there would have been no choice but to comply with the request and bear the associated resource costs.

5.2 Recommendation: 6

6. Exemptions

6.1 Sec 30—Investigations

This exemption is currently listed as Class based and qualified, which means that it can be overturned if there is a public interest in doing so. Obviously, this activity is the core function of the Police service but our ability to defend the disclosure of related information was further complicated when the information tribunal ruled that the harm to any particular investigation should also be evidenced. We would submit that such is the sensitivities of investigations; this exemption should be modified to become class based and absolute. This would put an end to the significant amount of requests received which either by design or unwittingly undermine the investigation process. This can range from people trying to get off a speeding ticket to journalists trying to gain an advantage in producing a story before the matter appears before a criminal court (Raoul Moat, Madeline McCann, Phone Hacking scandal etc) which were all high profile investigations and requests made during a sensitive stage of the investigation process. The requirement for this level of protection would obviously reduce after the conclusion of any legal or court process when it could revert to a qualified exemption. This would create a sterile time in terms of information disclosure during which the police could focus their efforts on the investigation itself rather than needing to divert unnecessary resources to dealing with FOI issues.

6.2 Recommendation: 7

6.3 Sec 40—Personal data

This is a complex exemption which covers both first and third person data. Its application is hindered by confusion as to the definition of what constitutes personal data and is generally subject to a “fairness test”. This is subjective in nature and is a constant source of dispute with applicants. The exemption requires a review and a simplification in order for it to become easy to understand, not only by the public authority but also the general public. Whilst we agree that the publication of senior official expenses is appropriate, requests for other members of staff involve lengthy and complex evaluation regarding their personal expectations, such as current role within the organisation, grade and other relevant personal factors.

6.4 Recommendation: 8

7. Section 14—Vexatious

7.1 UK Police forces are becoming increasingly concerned that dealing with requests from certain individuals are disproportionate to current business processes and as a result have become a significant burden during difficult times of austerity. The Police service can evidence three individuals, just in recent times, who have virtually engaged whole FOI teams in specific forces with their unreasonable demands for information to the detriment of other requesters and the proactive publication of information. It is for these reasons that ACPO consider the legislation relating to Section 14 should also directly relate to the applicant as well as the request.

7.2 In addition ACPO have recently noticed conflicting decision notices emerging from ICO caseworkers which also appear to confuse the subjective approach in dealing with Sec 14. The key question relates to the evidence required from authorities, as on face value it should not be a chore, echoed by the ICO comment “The Commissioner agrees with the Tribunal that the bar need not be set too high in determining whether to deem a request vexatious. He also agrees with the Tribunal that the term ‘vexatious’ should be given its ordinary meaning, which is that it ‘vexes’ (causes irritation or annoyance)”1.

7.3 One other area of concern relates to the ICO’s recent interpretation that public authorities cannot use information obtained from other public authorities in providing evidence in support of their Sec 14 vexatious application. Clear evidence exists of applicants using a “scattergun” approach to a large number of authorities. If applicants consider that authorities hold relevant or similar information pertaining to their request, then authorities should also be allowed to consult and discuss with each other in assessing their own position. In a recent case, the applicant (and associates) targeted numerous police forces and other authorities in seeking relevant information to their cause but ACPO would argue that the common theme attached across these requests is extremely relevant when considering the underlying context and purpose which sits across the whole of the applicant’s request.

7.4 The following “guidance” assists to prove the points:

“…the consequences of finding that a request for information is vexatious are much less serious than a finding of vexatious conduct in these other contexts, and therefore the threshold for a request to be found vexatious need not be set too high…”. (paragraph 11, Hossack)

“…the concept of vexatious litigants from other legal contexts is not an appropriate analogy to use because what s.14(1) does make clear is that it is concerned with whether the request is vexatious, not whether the applicant is vexatious…”. (paragraph 25, Gowers)

Further, the Tribunal in Gowers said that the test is an objective one, ie the threshold is whether a reasonable public authority would find the request vexatious.

7.5 We would suggest that this guidance is not actually followed. We regularly see the rationale of the applicant being adjudged as the most important issue, yet there are no guidelines around this. It is also clearly not an objective test; it would seem to depend on whether there is any sympathy with the applicant and whether the evidence from the public authority does seem to hit a high bar, in some cases, but not in others. ACPO have recently sought guidance from the ICO in respect of the following:

Can and should the request be motive blind?

If not, what motives are valid and which are not?

In the Tribunal of Burke, it states: “ the ICO has accepted that there is a fine line between obsession and persistence.” What exactly is that line?

When can forces use evidence obtained from other PA’s in support of Sec 14.

Finally, the information tribunal has also stated that the required standard should be based on the balance of probabilities, supported by the ICO guidance that the test should be whether a reasonable public authority finds the request vexatious. If this is so, exactly what standards of evidence are required and where is the tipping point for this balance?

7.6 Recommendations: 9, 10 and 11

8. Timescales

8.1 Police forces in general are of the view that consideration should be given to extending the 20 working day response time. In some cases, particularly where it relates to National Security information, there is insufficient time to collate information, consult with other interested parties and formulate an agreed disclosure. Whilst ACPO recognise that forces are able to extend for public interest reasons, sometimes even this additional timescale is difficult to meet.

8.2 Recommendation: 12

9. Publication Scheme

9.1 Forces have expressed concerns regarding the current value of publication schemes. Experience has shown that they are not widely used by the general public and the press/media for example tend to ignore it and make requests without even first identifying if the information has already been published. Whilst there is a requirement to proactively publish more information (datasets), evidence shows that there is very little interest in publication schemes as indicated by what appear to be a low numbers of “hits” on force websites.

9.2 The Resources that are available need to be focused on either production of information linked to data sets and the transparency agenda or the processing of individual requests. The two are intrinsically linked however there is little evidence that making more data available actually reduces the number of requests. The inescapable conclusion must therefore be that either the publications are not what the public require or it is too easy to submit a request without taking responsibility in assessing what may already be available in the public domain.

9.3 ACPO also suggest further research is carried out with regard to the best method for publishing information in what is an ever evolving digital age. For example, would it be more beneficial for the portal to a public authorities information to be via social networking and media, rather than the current website only approach?

9.4 Recommendation: 13

January 2012

1 FS50382601.

Prepared 25th July 2012