Friday, January 29, 2010

Time limit for prosecutions under s.77 of the FOI Act

The ICO's statement that the university at the centre of the 'climategate' email scandal did not deal with FOI requests as it should have done under the legislation has received a lot of media attention. Section 77 of the Act makes it an offence for any person to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing its disclosure. The offence is triable only in the magistrate's court. However, under section 127(1) of the Magistrates Court Act 1980, proceedings for all such offences must be brought within 6 months of the offence occurring.

In a statement on the University of East Anglia case, the Deputy Information Commissioner Graham Smith said:
The FoI Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information. Mr Holland's FOI requests were submitted in 2007/8, but it has only recently come to light that they were not dealt with in accordance with the Act. The legislation requires action within six months of the offence taking place, so by the time the action came to light the opportunity to consider a prosecution was long gone.
This problem came to the Campaign for Freedom of Information's attention last year. It was clear that the offence could rarely be detected in time for a prosecution to be brought. It can take several months before an authority responds to a request and carries out the internal review which is necessary before a complaint can be made to the ICO. Once complaints were made, it took on average 8 months before the ICO investigation even began, according to a report we published in July 2009. This means it would usually be impossible for the ICO to detect an offence within 6 months of it occurring.

The Campaign therefore drafted a proposed amendment to section 77 to extend the time limit for prosecutions. The amendment was identical to provisions already found in several other statutes, such as the Animal Welfare Act 2006 and the Theft Act (amended by the Vehicles (Crime) Act 2001), where the government itself had decided to extend the 6 months limit for prosecutions. More recently, in 2008, the Building Regulations were amended following a public consultation, as local authorities had maintained that the 6 month period did not allow prosecutions to be brought where a breach of the regulations only came to light after completion of the building work or where remediation of the work had been promised but not carried out.

The proposed amendment would have allowed a prosecution to be brought within 6 months of the evidence of the offence coming to the Commissioner's knowledge, rather than within 6 months of the offence being committed. The amendment was tabled to the Coroners and Justice Bill by Lord Dubs. However, the government rejected this opportunity to close the obvious loophole - though it was clear then that if an authority deliberately shredded records it would almost certainly avoid punishment.

Responding to the amendment, the minister Lord Bach said:
The Freedom of Information Act 2000 came into force only in 2005, and I have to tell my noble friend that we have no evidence at present that the current six-month time limit presents a systemic problem for the Information Commissioner or any other prosecutor in taking action under Section 77. However, I shall say this, which I hope will give my noble friend some comfort. We will listen to the views of the Information Commissioner and other interested parties on this point, and if there is evidence that the current legislation is causing systemic difficulties, we will look for ways to address the matter, if necessary by means of an alternative legislative vehicle in the future. However, I cannot go further than that today on behalf of the Government.
The full debate on the amendment is here.

Wednesday, January 27, 2010

HEFCE must disclose information on state of university buildings

The Information Tribunal has rejected an appeal by the Higher Education Funding Council for England against a decision by the Information Commissioner ordering the disclosure of information relating to the condition of buildings at higher education institutions (HEIs). The information was supplied by the HEIs to HEFCE which maintained a database on the management of land and buildings, known as the Estate Management Statistics database.

HEFCE refused a request for information held in the database on the basis that disclosure would constitute an actionable breach of confidence (section 41). However, the Information Commissioner rejected this claim as he did not believe the HEIs would suffer any detriment if the information were disclosed. As such, they would not have an action for breach of confidence and the section 41 exemption was not engaged.

The Tribunal upheld the Commissioner's decision, but on different grounds. It accepted the risk of damage to any of the HEIs competitive position satisfied the requirement of establishing detriment. But concluded that the public interest factors in favour of disclosure of the information substantially outweighed those in favour of maintaining confidentiality and HEFCE would therefore have a valid public interest defence to any breach of confidence claim:
We believe that there is a very considerable public interest in public institutions of this type, which frequently have a strong connection with a particular town or community, making this type of information available. Certainly no compelling evidence or argument was put to us on why, in general terms, those responsible for such an institution should not have data on this aspect of their stewardship made available to the public as a whole. Guardian News and the Information Commissioner made the additional point, which we find compelling, that if the reason for an HEI having buildings that are unsuitable or in a poor state is that it has suffered from inadequate public funding, then that is an issue on which a properly informed public debate is required.
The Tribunal also considered the meaning of "actionable" in section 41 and whether the exemption is engaged if a claim is merely arguable, or if it is necessary to establish that the claim would be successful.
"Our conclusion on this part of the case, therefore, is that the HEFCE must establish that disclosure would expose it to the risk of a breach of confidence claim which, on the balance of probabilities, would succeed. This includes considering whether the public authority would have a defence to the claim. Establishing that such a claim would be arguable is not sufficient to bring the exemption into play."
The Higher Education Funding Council for England v Information Commissioner and Guardian News and Media Ltd (EA/2009/0036)

How should councils cope with Freedom of Information requests

An interesting piece on ConservativeHome's Local Government Blog on 'How should council's cope with Freedom of Information requests?'
On Monday there was a piece in this section by Mark Wallace of the Taxpayers Alliance about all the Freedom of Information requests that Councils have to cope with these days. Conservative controlled Norfolk County Council has complained about the number of them.

A typical council does get hundreds of FIA requests a year and there is a cost involved. But costs could be reduced if there isn't a great effort made to come up for excuses for witholding the information but it is just handed over.
On Freedom of Information requests the subject cropped up at last night at the Value for Money Scrutiny Committee in Hammersmith and Fulham, which I chair. We were scrutinising the budget and among the efficiencies was an item proposed to save £42,000 a year. It is: "Cost containment. Freedom of Information improvements achieved by implementing better workflows through using new systems and better information on the website to enable enquiriers to self serve." We also talked about presenting the budget with a more detailed, intelligible breakdown of each section. One of the arguments for transparency, for getting all the information available on the website, is that it would reduce the number of FOI requests and Member Enquries as well as the cost of those that do come in.

SIC guidance on validity of requests following CoS Opinion

The Scottish Information Commissioner has issued new guidance explaining the practical effects for public authorities and applicants of the Opinion of the Court of Session in Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73 (see earlier blog post here). The Opinion addressed some important aspects of the FOI (Scotland) Act, particularly in relation to how information requests should be framed and whether a request made on behalf of another (unnamed) person is valid. The SIC is urging public authorities to read the guidance and review their procedures in light of it.

The guidance states:
Making or receiving requests for documents or copies of documents
"FOISA provides a right to obtain information and not a right to obtain copies of specific documents. However, this does not mean that a request for a copy of a document is automatically invalid, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants. If it is not reasonably clear, the public authority can contact the applicant to obtain clarification."

Providing information in response to a request for documents or copies of documents
"Applicants cannot insist on receiving copies of specific documents, but only receiving information. However, unless the applicant has asked for the information to be provided in a digest or summary, the information provided must be a complete and accurate version of the information contained in the specific documents. This means that it may be easier for public authorities just to provide copies."

The "true applicant"
"An information request must state the name of the applicant. There is nothing to stop someone making a request on behalf of another person. However, the person the request is being made on behalf of must be named. A public authority which receives a request on behalf of another, unnamed, person has a duty to provide reasonable advice and assistance to the person who submitted the request to provide an explanation of what needs to be done in order for a valid request to be made."

A summary of the guidance and a link to the detailed guidance are on the SIC website here.

Monday, January 25, 2010

EDM 589: FOI and companies owned by two or more public authorities

An early day motion has been tabled in the House of Commons calling for companies that are wholly owned by two or more public authorities to be brought within the scope of the Freedom of Information Act. Currently, companies that are wholly owned by a single public authority are subject to the Act, but those owned by two or more authorities are not. The motion calls for this loophole to be closed. It also calls for companies to be covered if they are 90% or more publicly owned, as opposed to the current 100% threshold.

The motion has been tabled by Conservative MP Peter Bottomley with the help of John Cross, a volunteer for mysociety's FOI website
That this House notes that section 6 of the Freedom of Information Act 2000, with certain exceptions, makes companies wholly owned by the Crown or by a single public authority subject to the Act; further notes that a company wholly owned by two or more public authorities or 95 per cent. owned by a single public authority will be outside the scope of the Freedom of Information Act 2000; and calls for the closure of this loophole and for companies owned 90 per cent. or more by any number of public authorities to be subject to the provisions of the Freedom of Information Act 2000.
The motion is open for other MPs to sign. Please write to your MP and ask them to sign EDM 589 on Freedom of Information and companies owned by two or more public authorities. 22 MPs have already signed - check the list here.

Thursday, January 14, 2010

Kent Messenger Group wins battle to release details of proposed lorry park sites

Exclusive report by political editor Paul Francis

Kent County Council has been told it must reveal details of all the locations it has considered as possible lorry park sites to deal with Operation Stack.

The KM Group has won an 18-month long battle to force the authority to disclose details of the other sites and how much each option might cost.

An information watchdog has ruled that the council was wrong to withhold the information and has ordered it must be disclosed because of the "considerable environmental impact" and the affect on people living in the area.

KentOnline had sought details of other sites under the Freedom of Act and Environmental Information Regulations.

But KCC said it was not in the public interest to release details of alternative sites, maintaining it was commercially sensitive and disclosure could affect land values.

It also argued the release would create anxiety and uncertainty among those living near the other locations.

In a ruling that comprehensively overturns KCC's case and upholds our appeal, the Information Commissioner's Office (ICO) says a list of alternative sites must now be released in the public interest.

The ruling will also mean that information about the possible planning constraints around the M20 site, originally redacted from documents already provided to the KM Group, will be released.


The ruling has been welcomed by residents and campaigners opposed to the lorry park plan for some 3,000 vehicles but is a setback for the council.

As recently as December, KCC leader Paul Carter told Folkestone and Hythe MP Michael Howard he would not publish the details of the other locations.
Full story here.
ICO Decision Notice FER219834 Kent County Council here.

Monday, January 11, 2010

PhonepayPlus subject to Environmental Information Regulations

The Information Commissioner has ruled that PhonepayPlus, the body which regulates premium rate phone-paid services in the UK on behalf of OFCOM, is a public authority for the purposes of the Environmental Information Regulations because it carries out functions of public administration (regulation 2(2)(c)).
he [the Commissioner] believes that the decisive factors in this case are that it has Regulatory powers..., carries out its statutory duties and if it was not there then the government would be highly likely to task another organisation with the same powers...In addition the government provides considerable oversight and control to enable PhonepayPlus to perform regulatory functions on behalf of the government department.
Decision Notice FER0265609 is here.

Thursday, January 07, 2010

ICO: physical restraint methods used against children should be made public

Press release
7 Jan 2010
The Information Commissioner's Office (ICO) has decided that it is in the public interest to disclose details about the methods used to restrain children and young people in secure training centres. The restraint methods include so-called distraction techniques which can involve deliberately inflicting pain on children.

Given the level of debate and controversy surrounding the use of physical restraint, on both legal and ethical grounds, and the evidence that these techniques can result in physical harm, the Assistant Information Commissioner, Gerrard Tracey, decided there is a significant public interest in releasing the manual in full.
Full ICO press release.
ICO decision notice FS50173181 Youth Justice Board for England and Wales

See also 'Release of secret child punishment manual ordered', The Guardian 10/1/2010

Wednesday, January 06, 2010

Information Commissioner: progress on FOI backlog

In the Justice Committee evidence session on Tuesday 5 January, the Information Commissioner outlined the progress that has been made in clearing the backlog of FOI complaints:
Christopher Graham: Over the past 6 months, we've put great priority on clearing the backlog and the figures are actually more encouraging than the figures that the minister quoted in the debate [adjournment debate] simply because things have accelerated like a train so the latest figures are better. If I can help the Committee, despite the fact that receipts of appeals to the Information Commissioner's Office are markedly up over the same period last year, in the period April to December 2009 compared to 2008 we've had a 21% increase in business, at the same time we've had a 43% increase in closures...We have already closed more cases in the first 9 months of the financial year, than in the whole of 2008-2009. Overall, since April, our caseload has dropped by 30% and the cases over a year old are now down by 52%. The very old cases, which is what we prioritise to get rid of, those cases over 2 years old are down by 70% and when perhaps later on I'm able to come and talk about our annual report, I think I will have an even more encouraging picture. I won't say it's satisfactory we're in the position we're in but we are making great strides in clearing the backlog, which I said to the Committee was a priority because, if you remember, I said unless we can demonstrate that we're an effective body, we won't be listened to on any other issue.

Chairman: In a letter you sent to me you indicated that, of course, some of the problems aren't caused by your office they're caused by repeatedly having to go back to government departments to get the information but there's a more robust attitude and I paraphrase slightly to that process might assist in speeding up the outcomes. Have you had any success in indicating to departments they've got to get a move on?

Christopher Graham: Yes, I think public authorities in general have got the message that the ICO is speeding up and we're onto the case. I give you an example of a decision notice we took about land acquisitions for the olympics. The London Development Agency understood from us that unless they could answer our questions and put up their best case, we would take a decision on the information we had to hand and that's what we did and that message gets across. I've been invited to address permanent secretaries at Sir Gus O'Donnell's meeting on 20 January and the message I will be putting is that we're generally being a tougher partner to deal with. And as we wire through the backlog, we are getting onto cases more quickly, the message I think will get across and we should be able to speed up generally. But it's very important to recognise that it's not just whether the Information Commissioner's Office is getting through the work, it's whether the public authorities are responding promptly enough either in the first place to Freedom of Information enquiries or to our enquiries in the course of an investigation.
You can listen to the evidence in full here.

5 years of Freedom of Information

A round-up of some of the media coverage of the 5th anniversary of the FOI acts coming into force.

Freedom of Information Act revelations recalled - The Journal 6/1/10

An Act designed to encourage transparency - The Journal 6/1/10

Freedom of Information: caught in the act - The Guardian 4/1/10

Freedom of Information: let the sunshine in - The Guardian editorial 30/12/09

Commons tops information shame league - FT 30/12/09


Openness is always the best policy - The Press and Journal 5/1/10

Data law's fifth year marked - Dundee Courier 5/1/10

The FoI rulings that left a mark on public life - The Herald 4/1/10 includes a video interview with Scottish Information Commissioner Kevin Dunion

Let's be clear on transparency - The Herald 4/1/10

Trusts targetted by data freedom chief
- The Herald 3/1/10

Ecosse interview: Kevin Dunion - The Sunday Times 3/1/10

Tuesday, January 05, 2010

Information Commissioner's Report to Parliament on ministerial veto

The Information Commissioner has laid a report to Parliament on the government's veto of the Commissioner’s Decision Notice ordering disclosure of minutes from a Cabinet Sub-Committee on Devolution.
7.4 Further to his press statement and letter to the Secretary of State, the Commissioner particularly regrets that the exercise of the veto prior to the full hearing of the appeal before the Tribunal meant that the issues in dispute were not put to the Tribunal for a consideration which would, in part, have been conducted in closed session. The Commissioner notes that, notwithstanding the criticisms in relation to paragraph 29 of his Decision Notice which were contained in the Secretary of State for Justice’s statement of reasons, these were issues which the Commissioner had conceded as early in proceedings as his response. Given that concession, the Tribunal might have varied the original Decision Notice in any event.
7.6 Had the case been permitted to proceed to a full hearing of the appeal, the arguments both for and against disclosure would have been rehearsed fully (albeit in closed session) before an impartial Tribunal comprising of a legally qualified Chair and two experienced lay members. As already noted, that panel might have concluded that, to a greater or lesser extent, Commissioner’s findings were flawed and might have substituted the Decision Notice. In the Commissioner’s view, that is precisely the function of the Tribunal.

7.8 The Commissioner is perturbed by the “blanket” nature of the exercise of the veto in the present case. Whilst acknowledging the importance of the constitutional convention which the Secretary of State for Justice seeks to protect, it seems to the Commissioner that a considered review of the 1997 Minutes as part of the appeal process might have resulted in the disclosure of some, or portions of some of the 1997 minutes in redacted form. The Commissioner considers that the convention of collective Cabinet Responsibility could only justify such a blanket refusal if all Cabinet papers were absolutely exempt from disclosure under the Act. However, that is not how the Act is drafted.

7.9 The Commissioner is aware that consideration is being given within government to amendments to legislation that would afford greater protection to certain categories of material including ‘Cabinet papers’. A decision on this and related matters is awaited. TheCommissioner is clear that until such time as any such proposal is enacted each case must continue to be considered on its own merits under the current legislation which, in any event, cannot be retrospective in its application.

7.10 It was the previous Commissioner’s expressed view at the time that the veto was exercised for the first time in February 2009 that it was vital that a ministerial certificate should only be issued under section 53 of the Act in exceptional cases. At that point he was concerned that any greater use of such certificates would threaten to undermine much of the progress made towards greater openness and transparency in government since the Act came into force. The Commissioner agrees strongly with this view and, for this reason, would be very concerned to see the exceptional become the routine.
Read the Information Commissioner’s Report to Parliament