Wednesday, June 30, 2010

Government accepts academies should be subject to FOI Act

Schools minister Lord Hill of Oareford has confirmed that the government accepts academy schools should be public authorities for the purposes of the Freedom of Information Act. In response to an amendment proposed by Lord Lucas during the committee stage of the Academies Bill, to add academy proprietors to Schedule 1 of the FOI Act, the minister said he supported the amendment in principle and promised to come back to the issue at report stage.
Moved by Lord Lucas

168: After Clause 8, insert the following new Clause-

"Academy proprietors: freedom of information

In Schedule 1 (public authorities) to the Freedom of Information Act 2000, after Part IV insert-

"Part IVA Academies
56A A qualifying Academy proprietor, within the meaning of section 8(2) of the Academies Act 2010, when exercising functions under that Act.""

Lord Lucas: My Lords, the coalition agreement pledges to review the Freedom of Information Act with a view to increasing its scope. This, the first legislative act of the coalition, seeks to reduce its scope. It should not.

Lord Hill of Oareford: My Lords, in Amendment 168 my noble friend proposes inserting a new clause that would amend the Freedom of Information Act 2000 to add academy proprietors to the list of public bodies covered by that Act. Having thought about this, and having come newly into the department, I think that he makes a very good point in his new clause. I can see no reason in principle why academy proprietors, in relation to their function of running academies under academy arrangements, should not be subject to the Freedom of Information Act in the same way as all other state-funded schools are.

I am also happy to confirm that this Government, like the last one, accept that academies are public authorities for the purposes of the Act. In principle, then, I am completely with my noble friend on the merits of his amendment. It also helps us to address some of the broader debate that we have had about consultation, where I accept the points that have been made from around the Committee. Making sure that information is available and that there is as much transparency as possible is part of the process of helping to overcome suspicion, so it will help in that respect as well. I undertake to consider the issue further. If my noble friend would be happy enough to withdraw his amendment, I will come back to the issue on Report.

Lord Lucas: My Lords, that is very cheering news at this time of night, I shall go straight off and have a whisky to celebrate. I beg leave to withdraw the amendment.

Tuesday, June 29, 2010

Dept of Health sets standard on FOI timeliness

The quarterly Freedom of Information statistics for central government have been published for January to March 2010. Credit to the Department of Health, which dealt with 98% of all requests within the standard 20 working day deadline. This is the second highest ever achieved by a Whitehall department. The Privy Council Office holds the record - it answered 100% of requests within 20 working days between April and June 2005 - but it only received 25 requests in that period. This is the second consecutive quarter DoH has achieved 98%.
Executive Summary
Volumes [see Table 1]
Across all monitored bodies, a total of 11,199 requests were received an increase of 9 per cent on quarter 1 2009.

93 per cent of requests received had been processed at the time of monitoring.

Departments of State reported receiving 6,857 “non-routine” information requests during the first quarter of 2010 (Q1). Other monitored bodies received 4,342 requests.

363 requests handled under the amended Environmental Information Regulations (EIRs) which came into force on 1 January 2005.

Timeliness [see Table 2 and Table B]
During Q1 of 2010, 89 per cent of all monitored bodies’ requests (excluding those “on hold” or lapsed) were “in time”, in that they were processed within the statutory deadline or were subject to a permitted deadline extension. This figure is above both the previous quarter and the corresponding quarter of 2009.

Figures for individual Departments of State ranged from 55 per cent (Ministry of Defence) to 100 per cent (Department of Health). For the 21 Departments of State who received more than 20 requests in the quarter, 15 had more than 90 per cent of requests processed “in time”.

Outcomes [see Table 3 and Table C]
Of all “resolvable” requests received during Q1 of 2010 (i.e. requests where it was possible to make a substantive decision on whether to release the information being sought), 54 per cent were granted in full, slightly lower than both the previous quarter and the corresponding quarter of 2009.

Figures for individual Departments of State ranged from 24 per cent (Cabinet Office) to 77 per cent (Communities and Local Government and the Government Equalities Office).
 The stats can be downloaded in Excel format here.

Wednesday, June 16, 2010

Enforcement action taken after IPCC fails to respond to FOI requests

The Information Commissioner's Office has taken enforcement action against the Independent Police Complaints Commission (IPCC) for failing to respond to FOI requests within the 20 day time limit. The enforcement notice states:
This action was prompted by a letter from the IPCC which stated that it was experiencing difficulties in responding to requests for information under section 1(1) of the Freedom of Information Act 2000 (the “Act”).  The IPCC confirmed to the Commissioner that it had a backlog of 72 requests, 69 of which were ‘out of time’.  In addition to this backlog, the Commissioner was aware that he had received nine complaints under section 50 of the Act which identified a failure to respond to requests for information within the statutory time limits, four of which remained outstanding at the time of drafting this notice.
The IPCC has repeatedly failed to respond to requests for information within the statutory time limits.  Further the Commissioner is concerned that the timescale proposed by the IPCC for the elimination of its backlog of overdue requests may not be met, unless the authority is compelled to take such action by way of an Enforcement Notice. 
This is only the second time the Commissioner has issued an enforcement notice under s.52 of the FOI Act. The first was in relation to multiple complaints about the non-disclosure of the Attorney General's advice on the legality of military intervention in Iraq. Failure to comply with an enforcement notice could result in the Commissioner referring the matter to the High Court where it can be dealt with as contempt of court.

A copy of the enforcement notice is here. The ICO's Enforcement Strategy is here.

Tuesday, June 15, 2010

Commissioner wrong to conclude that police investigation report entirely the requester's personal data

In a significant decision on the application of section 40, the First-tier Tribunal (Information Rights) has ruled that the Information Commissioner was wrong to conclude that Cambridgeshire Constabulary could withhold the whole of an investigating officer's report on the grounds that it consisted entirely of the requester's own personal data. The report in this case had been produced after the requester and two other individuals raised concerns about the way the force had investigated the death of the requester's sister, who had been killed by her husband. It addressed the adequacy of the criminal investigation as well as the way in which the force had dealt with the requester and the other complainants. The Tribunal held that the report should be disclosed except for some information about the offender and information about the offender's family, the deceased's family and other witnesses.

The Commissioner's decision notice (FS50138960) stated that the entire report comprised the requester's personal data because it was compiled in response to her complaint. The Commissioner retreated from this position during the appeal to the Tribunal, but maintained that the information that was not her own personal data was the personal data of third parties which was exempt under s.40(2).

Applying the Court of Appeal's judgment in Durant v Financial Services Authority, the Tribunal found that not all the information in the report comprised personal data: is clear that not all the information in the Report comprises personal data. For example, we consider that there is nothing in the Introduction, and very little in the Glossary of Terms and Abbreviations, or in the Executive Summary and other general background material that comprises personal data of either the Appellant or third parties. Most of that information does not identify any living individual, much less does it contain any information which could be said to be personal or biographical of any person. In the absence of any other exemption being engaged, such information must therefore be disclosed. 
In relation those parts of the report that did contain personal data, the Tribunal went on to consider whether disclosure would breach the data protection principles. In considering whether disclosure would be fair for the purposes of the first data protection principle, it commented:
We accept  that fairness is in fact a broad concept, capable of embracing a range of considerations.  In particular, we accept that fairness should not be considered from the point of view of the data subject alone. It is necessary to also consider the interests of the data user (here, the Appellant), and also, where relevant, the wider considerations of accountability and implicit in FOIA. 
It then considered the position of each individual or group of people in turn.

Police officers

When considering the information that related to individual police officers the Tribunal was referred to its decision in Waugh v Information Commissioner and Doncaster College, which concerned information relating to the dismissal of the Principal of Doncaster College and where the Tribunal said there is a “recognised expectation that the internal disciplinary matter of an individual will be private”.  But it concluded the present case was different for the following reasons:
First, the focus of the Report is about the way in which the Public Authority carried out the inquiry rather than being about any particular officer. While the Report does consider certain complaints against individual officers, the information about disciplinary consequences is limited to a brief mention that management advice is recommended. We also note that the Public Authority’s letter to the Appellant and her husband dated 5 June 2003 (referred to in paragraph 27 above), contains essentially the same information. In particular, it sets out the names of individual officers against whom disciplinary action (by way of management advice), had been taken. In addition, the redacted Report as disclosed to the Appellant in response to her subject access request, also contains names of certain officers, identifies complaints against them and sets out the Report’s findings and recommendations. Although these disclosures were made to the Appellant and not to the world at large, as already noted, they were not made in confidence, and it is clear that they have not been treated in confidence. Indeed it would be surprising if they had been since one of the Appellant’s stated objectives has been to bring about changes in the way investigations are carried out and how families of the victim are treated. In these circumstances, we consider that disclosure would be fair.

We do, however, consider that in relation to certain parts of the Report which records opinions expressed by officers in what appear to be an “off the cuff” manner, there would likely have been a reasonable expectation that they would not be disclosed. We consider that disclosure of such information would not be fair. 

For the most part, however, for the reasons set out above, we find that disclosure of the information is fair.
The Tribunal was also satisfied that condition 6 of Schedule 2 was met for the information about the police offcers:
There is also a wider public interest in transparency and accountability in relation to the investigation of serious offences and in ensuring that mistakes made are identified and not repeated. Against these interests, are the interests of the police officers in the privacy of their personal data. The protection afforded by condition 6 is in relation to unwarranted disclosure. The factors set out above which point to the fairness of the disclosure, in our view, also support a finding that on the facts of this case, any prejudice to the rights and freedoms or legitimate interests of the police officers is not unwarranted.

In relation to the information about the offender, the Tribunal concluded that although some of the information was his sensitive personal data, some of it should nevertheless be disclosed:
We consider that the objective of transparency and accountability of the Public Authority’s handling of the investigation can only properly be achieved through the disclosure of the Report so we find that disclosure is necessary for the legitimate interest of the Appellant and wider public. In our view, disclosure cannot be said to be unwarranted by reason of prejudice to the rights and freedoms of the Offender, where the information is already in the public domain and has been put there by the Offender himself. For the same reason, we consider that in relation to information that is sensitive personal data, condition 5 is met (information that has been made public as a result of steps deliberately taken by the data subject).

We do not, however, consider that disclosure of the personal data of the Offender, as contained in the Report, would be fair in all cases. In particular, we do not consider that detailed matters concerning the Offender’s past employment or allegations of other offences with which the Offender was either not charged, or which were not pursued against him, can be said to be fair. These are not matters that relate directly to the purpose of the Report, or to the Appellant’s or public’s interests identified above. That information, therefore, is exempt.
However, the Tribunal concluded that there was a strong and legitimate interest in the personal data relating to members of the offender's family and the daughter of the offender and deceased being kept private.

Friday, June 11, 2010

PQ: ICO average case closure time

10 Jun 2010 : Column 213W

Annette Brooke: To ask the Secretary of State for Justice what the average time taken to resolve complaints made to the Information Commissioner's office was in the latest period for which figures are available; and if he will make a statement. [1517]

Mr Blunt: The Information Commissioner's Office (ICO) divides the complaints it receives into two categories: Data Protection and Freedom of Information. The latest period for which figures for the average time taken to resolve complaints are available is 1 January to 31 March 2010.

The ICO closed its oldest FOI cases during this period which has affected the average age of cases closed. On 1 April 2009 the average age of live FOI cases was 286 days but by 1 April 2010 this had fallen to 150 days.

This information has been provided by the ICO.

Friday, June 04, 2010

Lord McNally: Govt considering how best to extend FOI Act

Freedom of Information Act 2000

Question Asked by Lord Lucas

To ask Her Majesty's Government whether the Freedom of Information Act 2000 will be extended to academies, examination boards, the Higher Education Statistics Agency and the Universities and Colleges Admissions Services.[HL55]

The Minister of State, Ministry of Justice (Lord McNally): The Government intend to extend the scope of the Freedom of Information Act to provide greater transparency. We are currently considering how best to give effect to this aim, one option for which is making further bodies subject to the Act.

3 Jun 2010 : Column WA7