Friday, July 30, 2010

Police sector publication scheme monitoring: follow-up report

In March 2010, the ICO published a second publication schemes monitoring report looking at police forces and police authorities (the first report looked at central government). A brief follow-up report has now been produced, which looks at developments since the publication of the main report.
The most disappointing aspect of our findings was that out of the 90 authorities monitored some 26 (or approximately 30%) were found not to be operating an approved publication scheme. We found various reasons for this. These included missing a class of information out of their adopted scheme (therefore only publishing six classes of information rather than the seven in the model scheme), using an old scheme which was no longer approved and not having any sort of publication scheme in operation.

When the fact that they were not meeting their legal obligations was pointed out to these authorities, most responded in a positive manner and took steps to meet the requirements imposed by s19 of FOIA. As a result of this by the end of June 2010 all but Northumbria Police Authority, Staffordshire Police Authority and Merseyside Police Authority (in this last case a class of information was missing) were operating an approved publication scheme.
For all the authorities we checked (who were operating an approved scheme) we wrote to them with our findings and recommendations. The feedback that we have had from this was often from senior level staff (including from Chief Constables) and has on the whole been very positive.

At the same time a few issues have been identified where some public authorities thought that we had not been fair to them.

Nottinghamshire Police insisted that they did respond to our request for information. Unfortunately (and as we said in the original report) we did not receive this response. Humberside Police Authority got in touch with us to ask that we make it clear that they do recognise the difference between responding to an application for information from their scheme and dealing with a full FOI request. We are happy to do this.
Publication Schemes Police Sector Monitoring Report March 2010 here (pdf) 
Follow-up report here (pdf).

SIC's 1,000th decision orders Scottish Government to release meeting data

News release
30 July 2010
Freedom of information in Scotland reaches a new landmark today [Friday 30 July] as the Scottish Information Commissioner publishes his 1000th decision, ordering the Scottish Government to release information about the meetings of its Council of Economic Advisers (CEA), and to carry out further searches for relevant information.

The decision deals with a request made by a journalist from a Scottish national newspaper, for information about the costs and administrative arrangements for the first five meetings of the CEA - the group of economists and industry figures that advises the Scottish Government on economic affairs.

In his ruling, the Commissioner finds that the Government failed to put forward an appropriate justification for the non-disclosure of data, while also failing to confirm to him that officials had appropriately searched for all relevant information.

Publishing his decision, Kevin Dunion, the Scottish Information Commissioner, said:
"I have now issued a substantial body of rulings in the five and a half years since Scotland's freedom of information laws came into force. This 1000th case is not untypical. Around two thirds of my decisions find in favour, or partially in favour, of the applicant.

"By now, all public authorities should be fully aware of their duties when responding to FOI requests. They should understand the need to present clear arguments when they decide to withhold information and those arguments should stand up to scrutiny in the event of an appeal. Where, as in this case, a public authority fails to make an appropriate case, I will order the release of information. With all this experience behind us, I expect authorities to get their responses - to FOI requesters and to me - right first time."

The Commissioner requires the Government to release the withheld information by 6 September 2010.
Full press release here.
Decision 129/2010 Mr Tom Gordon of the Sunday Herald and the Scottish Ministers here

Thursday, July 29, 2010

Updated EIR guidance from DEFRA

DEFRA has issued the following updated guidance on the Environmental Information Regulations:

28 July 2010 – Updated guidance on Charging for environmental information under the EIRs (PDF 100 KB)

6 July 2010 – Updated guidance on Handling requests for environmental information and Records management and offences. See our Detailed guidance page below for all the detailed guidance.

Wednesday, July 28, 2010

Further consultation on extending the Freedom of Information (Scotland) Act

The Scottish Government has published a consultation paper seeking views on whether the Freedom of Information (Scotland) Act should be extended to cover the following bodies:
  • contractors who run privately managed prisons and provide prisoner escort services;
  • leisure, sport and cultural trusts and bodies used by local authorities;
  • the Glasgow Housing Association;
  • the Association of Chief Police Officers in Scotland;
  • contractors who build and maintain schools;
  • contractors who build and maintain hospitals; and
  • contractors who build, manage and maintain trunk roads under private finance contracts.
The consultation paper states:
At this stage the Scottish Government has not reached firm conclusions on which bodies it would be appropriate to extend coverage to. We are particularly mindful of the importance of establishing whether coverage would place undue financial burdens upon bodies at a time of economic difficulties. Creating additional regulatory or financial requirements must be appropriate and proportionate.

This consultation paper therefore formally seeks the views of the bodies listed above (or their representative bodies) on their coverage by the Act, and the views of any other interested parties. Each section explores the issues raised with us to date about covering a particular type of body, presents our rationale for extending coverage, and asks certain questions.

The responses we receive to this consultation paper are therefore key and will directly contribute to the evidence base on which a decision will be reached. 
The consultation is open for 14 weeks until 2 November 2010. The Government will then consider whether to bring forward an Order under section 5 of the Act. The consultation paper suggests that the Order would come into force after 12 months, to allow the bodies concerned to make the necessary preparations for meeting the Act's requirements.

The Scottish Information Commissioner welcomed the consultation:
In my response to the consultation I will be encouraging the Scottish Government to press ahead with extending the Freedom of Information Act to the contractors, trusts and other bodies which now deliver public services.  At a time when economic circumstances may affect the quality of health, education and leisure services, the public will undoubtedly have questions about spending decisions and performance.  The scope of bodies covered by freedom of information laws needs to keep pace with the changing landscape of public spending and so I generally welcome the proposals being made by the Government and will submit my formal response shortly.
The consultation paper is available here. Further background material about the Scottish Government's decision to consult on bringing these particular bodies under FOISA is here.

Wednesday, July 21, 2010

ICO takes tougher approach to enforcement

Following the news on the reduction in the backlog of FOI complaints last week (see earlier post), there is more good news for FOI requesters today from the Information Commissioner's Office, which has published a new policy on freedom of information regulatory action. Failure to deal with requests within the statutory time for compliance has been identified as a key target for intervention by the ICO.
Today the Information Commissioner’s Office (ICO) sets out the measures that public authorities will face if they routinely fail to meet the requirements of the Freedom of Information Act (FOIA) or the Environmental Information Regulations 2004 (EIR). Organisations will face action from the ICO if they regularly fail to issue a response on time, refuse to disclose information without specifying an exemption, or if they fail to respond to a request altogether. The tougher approach to enforcing the Freedom of Information Act will ensure individuals get speedier responses from public bodies.

Mick Gorrill, Head of Enforcement at the ICO, said: “Organisations that take FOIA seriously will have advice and support from the ICO. The public bodies that continually fail to meet their legal obligations will face regulatory action. Using FOIA can take too long and is sometimes overly cumbersome for members of the public. After monitoring authorities’ compliance with the Act, we will take action against those that abuse the system.”

The ICO will be making more use of regulatory powers including Enforcement Notices, Undertakings and Practice Recommendations to improve compliance. Where there is evidence that a public authority is regularly or seriously failing to meet its obligations, the ICO will not hesitate to take regulatory action, particularly where organisations fail to respond to requests in a timely manner. The ICO has identified timeliness as a key target for action, in recognition that a quarter (between 20–25%) of FOIA complaints to the ICO relate, at least in part, to the time taken for public bodies to respond to requests.
The ICO website states that it intends to publish the names of those authorities being monitored on a regular basis. The policy itself states:
We will adopt a selective approach to initiating and pursuing regulatory action. Our approach will be driven by concerns about significant or repeated failures to meeting the requirements of FOIA, EIR or their associated codes of practice. The type of intervention will be appropriate to the failure and proportionate.

...The initial drivers will usually be:
  • concerns raised with us in the complaints that we receive;
  • concerns raised with us by an authority direct;
  • issues that come to our attention via the media, the web and social media such as information rights blogs;
  • concerns raised by Parliament, the Ministry of Justice or liaison groups;
  • concerns raised by the First Tier Tribunal (Information Rights); and
  • concerns that become apparent through our other activities, for example wider information handling issues that come to our attention via our data protection audit programme.
Download the ICO's freedom of information regulatory action policy here.

Thursday, July 15, 2010

ICO FOI caseload progress

More on publication of the Information Commissioner's 2010 Annual Report which outlined the significant progress that has been made in reducing the backlog of FOI complaints, which was seriously undermining the effectiveness of the FOI Act. The report states that the ICO now has 1,035 open cases, 439 fewer than at the start of the year. Despite a 20% increase in complaints to the ICO in 2009/10, there was a 39% increase in the number of cases closed. 628 cases were closed with a decision notice, more than double the 295 in the previous year. The report contained the following table showing the age profile of open cases on 31 March 2010 compared to 1 April 2009.

Another table shows that 82% of cases closed were less than a year old. This is a tremendous turnaround from the position highlighted in a report on 'Delays in investigating Freedom of Information Complaints' published by the Campaign for Freedom of Information in July 2009 and extremely welcome news for requesters.

The frustration that delays cause requesters was highlighted by Ann Clwyd MP in a debate in Westminster Hall on 13 July 2010.
...the advent of the Freedom of Information Act should be celebrated. It was one of the triumphs of the Labour Government, and it enables us, the public, to subject public authorities to the kind of scrutiny that was never possible before. It gives us access to all the inconvenient and embarrassing bits of information that some public authorities would rather not disclose.

However, public confidence and the effectiveness of the Act are being undermined by the difficulty in pursuing complaints against authorities that refuse to release information that the Act requires them to release. The problem is that it is just too easy for public authorities to obstruct the process. If they ignore enough letters, miss enough deadlines and pretend that they do not really know what is happening and why, they will be able successfully to evade an information request for a long enough period to diminish the detrimental impact, reduce embarrassment and avoid the accountability that release of the information would cause...
Responding to the debate, the Parliamentary Under-Secretary, Jonathan Djanogly said:
The current economic climate is, of course, extremely challenging, but the Government are committed to providing the ICO with the best deal possible to maintain its progress and to fulfil its vital role. I have to say that this is not just about money; it is also about people and expertise. I am sure that the right hon. Lady will be interested to know that three experienced caseworkers have been seconded from central Government, helping to cut through the ICO's backlog.

The commissioner has made great strides to improve the efficiency of his operation to provide increasing value for money. That is evidenced in the remarkable increase in case clearance that I have just mentioned.

...It is important that we continue to support the commissioner, as his work is at the heart of the Government's transparency agenda. The commissioner will publish his annual report tomorrow and the right hon. Lady will have the opportunity to see it. I am sure that she will be pleased to note the steps that the Government have already taken and will continue to take to make more information available to the public, shedding light on public affairs, from the corridors of Whitehall to the meeting rooms of borough councils and local schools.

The right hon. Lady specifically asked me to say whether the commissioner has enough power to regulate the freedom of information regime effectively. We believe that, as things stand, that is so. The powers are there.
Read the full debate here.

MoJ publishes milestones for FOI reforms

A draft Structural Reform Plan has been published by the Ministry of Justice. Structural Reform Plans were announced by the Prime Minister in a speech at the Civil Service Live event on 8 July 2010. Each department must publish a plan setting out clear priorities and milestones for implementation of the reforms set out in the Coalition Agreement

The milestones set out in the MoJ plan for civil liberties reforms are:
A. Mechanism to prevent unnecessary criminal offences announced Jul 2010
B. Publish proposals for the storage of internet and e-mail records Nov 2010
C. Commission on UK Bill of Rights established 2011
D. Draft Defamation Bill for the reform of libel laws published for pre-legislative scrutiny Mar 2011
E. Freedom of Information Act 2000 extended Nov 2011
F. Freedom Bill passed Nov 2011
View the Structural Reform Plan here.

Wednesday, July 14, 2010

ICO annual report: information rights go centre stage

Press release
14 July 2010
The information watchdog is handling record levels of business and productivity is dramatically up, the Information Commissioner’s Annual Report for 2009/10 shows.

Speaking at the annual report launch today, the Information Commissioner, Christopher Graham will say that the watchdog is in pole position to deliver on the agenda of transparency, accountability, privacy and freedom.

“We’ve never been busier,” says the Commissioner, reporting a 20% rise in freedom of information cases and a 30% rise in data protection cases. “But despite the surge in business, the Information Commissioner’s Office (ICO) is keeping on top of the demand for our services.” The office closed 39% more cases than in 2008/09.

Christopher Graham says: “Technology, concerns about data security and the welcome focus on transparency of official information mean information rights are centre stage. We have made some significant internal changes to ensure we are best placed to deal with the increasing demands and expectations placed upon us by the public and the organisations we work with. Respect for information rights is not optional.  Organisations that ignore their responsibilities will not only lose the confidence and trust of citizens and consumers but could face painful enforcement action from the ICO as well.”

In 15 months the ICO has reduced a historic backlog of freedom of information complaints. The number of cases closed in 2009/10 increased by 39% on the previous year to 4,196.  At the same time the ICO has dealt with more enquiries than ever - in 2009/10 the ICO received 3,734 freedom of information complaints, up 20% compared to 2008/09.

With a new ICO mission statement and increased regulatory powers, Mr Graham uses his annual report to call for the Information Commissioner to report directly to Parliament, as in the case of the Parliamentary and Health Service Ombudsman, to increase transparency around the reporting and financing arrangements of the ICO.

Christopher Graham, Information Commissioner, says: “I believe that the ICO has not just to be independent of government, but be seen to be independent. To carry out my duties effectively and with the full confidence of all parties, now is the time to formalise the governance arrangements for the Information Commissioner, suitable for an independent public official whose accountability is fully to Parliament, rather than primarily via Departments of State.”

The annual report highlights that the ICO received over 212,000 calls to its helpline in 2009/10 – a 6% increase compared to 2008/09. It received 33,234 enquiries and complaints concerning personal information. Failing to adequately deal with requests for personal information topped the list of complaints to the ICO under the Data Protection Act. Lenders came top of the list of sectors generating the most complaints under the Act.

A full copy of the annual report can be downloaded from the ICO website.

Friday, July 09, 2010

Using the FOI Act! Introductory & advanced courses for requesters

Do you want to learn how to use the Freedom of Information Act? Are you already using the Act, but want to know more about how the Information Commissioner and Information Tribunal are interpreting its key provisions?

The Campaign for Freedom of Information is running two half-day courses for FOI requesters in central London on Thursday 16 September 2010. The morning course will provide an introduction to the legislation covering both the Freedom of Information Act and the Environmental Information Regulations. The afternoon course will examine some of the key decisions made under the two regimes and explain how they can help you obtain information. Requesters can attend either or both courses.

Further information and details on how to book a place are available here.

Thursday, July 08, 2010

Academies Bill amended to bring academy proprietors within FOI Act

The Academies Bill has been amended in the House of Lords to bring academy proprietors within the scope of the FOI Act. The amendment was passed at the Bill's report stage. It was moved by schools minister Lord Hill of Oareford following an undertaking given to Lord Lucas, who had moved a similar amendment during the Bill's committee stage (see earlier post here).
Lord Hill of Oareford: My Lords, in Committee I said that I agreed with my noble friend Lord Lucas that academies should be included within the coverage of the Freedom of Information Act 2000. I said that I would consider this issue further and come back to it on Report. Having thought about it, I can see no reason why academy proprietors should not be subject to the Freedom of Information Act in the same way as all maintained schools are subject to that Act. Amendment 47 would simply insert a new clause into the Bill that would amend the Freedom of Information Act 2000 to add academy proprietors to the list of public bodies covered by that Act.

The new clause brings academy proprietors within the coverage of the Act in respect of information that they hold for the purposes of their functions under academy arrangements. This will cover functions relating to establishing and maintaining an academy and the carrying on of the academy once it has been established. If enacted, it is our intention to commence this duty in sufficient time to ensure that any schools which become academies in September will continue to be subject to the Act after they cease to be maintained schools. In relation to existing academies which have up until now not been subject to the Act, we intend to commence this duty for them early in the new year in order to give them time to prepare.

We believe that extending the Freedom of Information Act to academies is right in itself, but it also has another advantage linked to our broader discussions in Committee and today about consultation and transparency. I believe that having information about academies in the public domain will help dispel suspicion and make people appreciate the positive contribution that they are making to raising educational standards. I know that noble Lords on all sides of the Committee will welcome this amendment and I am very grateful to my noble friend Lord Lucas for flagging the issue up with his original amendment.

Amendment 55 is a technical amendment required to ensure that Amendment 47, the main amendment to the Freedom of Information Act, will technically extend throughout the United Kingdom, even though it will apply only in England. I beg to move.

Lord Lucas: Thank you.

Lord Hunt of Kings Heath: My Lords, I am sure that all noble Lords would thank the Minister for this. I wish to ask him a question. Yesterday we debated the small primary school that would have been able to become a foundation trust. Today, we have the announcement of the review of the UEA e-mail issue in relation to climate change scientific research, which in itself raises FOI issues. All of us who have been involved in public authorities know that establishing the apparatus and support mechanisms to deal with FOI requests can be considerable. I can envisage a school, perhaps not so much a primary but a secondary, dealing with admission issues and being subject to FOI requests, which is quite likely. My question for the Minister is: what support mechanism will be put in place to help schools deal with the FOI system, because they will need something.

Lord Hill of Oareford: My Lords, that is a very fair and sensible point. At the moment, maintained schools would be helped by the local authority. I take the noble Lord's point. Academies which find themselves in that situation will need the kind of support that he is talking about. We will think about that within the department. I do not know whether the department is the right place to deal with this-it may well be. I take the noble Lord's point; I agree with him and I will reflect on it. Perhaps I can let him know how we get on.

Amendment 47 agreed.
The Bill will have its 3rd reading in the House of Lords on 13 July 2010.

Hansard Lords report stage here.

Public Sector Transparency Board papers published

The Public Sector Transparency Board papers have been published in a commentable way here.

The Board met for the first time on 24th June 2010.

Tuesday, July 06, 2010

MoJ calls for evidence on data protection legislative framework

The Ministry of Justice has today (6/7/10) published a Call for Evidence on how the European Data Protection Directive 95/46/EC and the Data Protection Act 1998 are working.
The Government has issued a Call for Evidence on current data protection law to help inform the UK’s position on negotiations for a new EU data protection instrument, which are expected to start in early 2011.

The Call for Evidence lasts for three months and is due to close on 6 October 2010.

At the same time as launching this Call for Evidence, the Government has published a provisional post implementation review impact assessment of the Data Protection Act 1998, on which we would also welcome comments. This impact assessment complements the Call for Evidence and publication of a full impact assessment is planned for the end of 2010.

Please note that the Call for Evidence is not a formal consultation, but an evidence gathering exercise.
The document states that evidence is particularly sought on the following issues:
  • A. definitions;
  • B. data subjects’ rights;
  • C. obligations of data controllers;
  • D. powers and penalties of the Information Commissioner;
  • E. the principles-based approach
  • F. exemptions under the DPA; and
  • G. international transfers.