ICO criticises health body of FOI failures

Press release
27 March 08

The Information Commissioner, Richard Thomas, has strongly criticised Hounslow Primary Care Trust (PCT) for failing to meet its obligations under the Freedom of Information Act (FOI). The PCT failed to respond adequately to FOI requests, refused to provide all the relevant documents to the requester, missed several key deadlines for responding to both the requester and the Information Commissioner, and has committed numerous breaches of the Act.

Richard Thomas said: ‘Hounslow PCT’s records management is clearly inadequate and its performance in handling this case has been totally unacceptable. The Freedom of Information Act must be properly implemented by public bodies - it is not a voluntary scheme that organisations can dip in and out of - I consider that other health trusts and public authorities could usefully learn lessons from this case.’

During this case the Information Commissioner needed to see the requested materials held by the PCT to make a proper judgement about whether they should be disclosed. The PCT failed on numerous occasions to respond to requests from the ICO to see the relevant information. An Information Notice was served ordering the organisation to supply the required material to the ICO. The PCT failed to respond and Richard Thomas then served draft High Court papers on the PCT – the first time this has happened under FOI - certifying that it was in contempt of court for failing to respond to the Information Notice. The PCT did then provide the information to the ICO.

The Information Commissioner is particularly concerned that, despite assurances that the PCT did not hold some of the specific material requested, it subsequently located relevant documents. This piecemeal approach to disclosure has led the Commissioner to recommend that the PCT reviews its records management system and takes advice from the Records Management Advisory Service at the National Archives.

Full press release

See also:

PCT threatened with court over fight for information - Health Service Journal

Watchdog hits out at NHS trust - Financial Times

MPs to fight allowances disclosure

Tues 25 Mar 2008
Ananova

The House of Commons is to fight the disclosure of MPs' second home allowances to the High Court, it was revealed.

A spokeswoman said the Commons authorities were concerned that an Information Tribunal ruling that MPs' addresses should be released would present a security risk.
...
A spokeswoman for the Commons Commission, which manages House affairs, said an appeal would be lodged by 4pm.

The Commons spokeswoman said there had been "great concern" among MPs about the release of their second home addresses, which the tribunal said last month must be published in all but exceptional circumstances.

"The threats that MPs can face are unpredictable and subject to change," she said.

The release of their home addresses could "inhibit democratic debate" on a range of sensitive issues, she added.

The Speaker is said to have been "mindful" of MPs' concerns and has sought advice from the security services.

"Having received advice he's concerned that the Information Tribunal may have misdirected itself in law in deciding that home addresses of MPs should always be published subject to only to limited exceptions," the spokeswoman said.

New SIC guidance

The Scottish Information Commissioner has published new guidance on the 'Prejudice to effective conduct of public affairs' and 'Commercial interests' exemptions.

These are available here.

Call for papers - Journal of Information Rights Law and Practice

Northumbria University which runs an LLM in Information Rights is inviting contributions for the Journal of Information Rights Law and Practice, which is about to be launched:

The Northumbria University Journal of Information Rights Law and Practice is a resource aimed at lawyers, academics and practitioners across the field of Information Rights Law. The Journal aims to provide an expert resource dealing with issues of data protection and security, access to information both under Freedom of Information and Environmental Information legislation, privacy, data sharing, information and records management and related issues. Contributions are invited, but are not limited to, the following topics:

1. Analysis of recent developments in the law or practice related to information rights issues.

2. Research or case studies on the implementation of information rights or records management issues in the practical context.

3. Analysis and case reviews of decisions of the Information Commissioner, Information Tribunal or the Courts.

Material for publication should be submitted to the Editor, Andrew Watson, School of Law, Northumbria University, City Campus East, Newcastle, NE1 or by e-mail to andrew3.watson@unn.ac.uk. Submission by E-mail is preferred. When submitting articles for publication it would be helpful if authors could observe the following guidelines:

Form of Manuscript
All articles should be typed with double line spacing with a one inch margin on all sides. Articles should be no longer than 5000 words although longer articles will be considered at the Editor’s discretion.

Footnotes and References
Footnotes to sources should be numbered in one consecutive series of Arabic numerals and placed at the foot of the page. Footnote style must conform to the standards set forth in a Uniform System of Citation, published by Harvard Law Review Association. The publishers are unable to check the accuracy of references and the onus of the accuracy falls on the author.

Copyright
It is the responsibility of the author to obtain any permission necessary to reproduce or quote from published work and suitable acknowledgment should always be made.

Important dates
Submissions are accepted throughout the year. The Journal is published twice yearly.

Contributors should note that all articles submitted for publication will be refereed by at least one member of the Editorial Board.

The Editorial Board consists of the following members:
Andrew Watson (Editor)
Professor John Angel, Chairman of the Information Tribunal
Jenny Carpenter, DEFRA
Philip Coppel, Barrister
Dr Henry Fitzhugh, Lay Member of the Information Tribunal
David Goldberg, deeJgee Research Consultancy
Ibrahim Hasan, Solicitor
Susan Healy, National Archives
Elizabeth Lomas, Researcher
Professor Julie Mcleod, Northumbria University
Phil Michaels, Friends of the Earth
Adrian Nuttall, Environment Agency
Timothy Pitt-Payne, Barrister
Alan Stead, Consultant
Richard Thomas, Information Commissioner
Marcus Turle, Partner, Field Fisher Waterhouse LLP
Susan Wolf, Northumbria University

FOI Podcast episode 11

Ibrahim Hasan has asked me to post details of his latest podcast:

This is episode 11 of the UK’s first Freedom of Information podcast by Ibrahim Hasan. In January and February 2008 the Information Commissioner published sixty decisions whilst the Information Tribunal published ten.

In this episode, amongst other things, we will be discussing:

• More guidance on what is information under FOI

• Release of sensitive information relating to the circumstances around the Iraq war

• A Tribunal decision on the definition of personal data

• The overturning of the Information Commissioner’s decision ordering disclosure of ASBO information

• Disclosure of salaries

• And the first decision requiring disclosure of legal advice on public interest grounds

There is also comment and analysis from Tim Turner of Wigan Council. To listen please click on :

http://www.informationlaw.org.uk/page10.htm

High Court upholds Information Tribunal EIR decision

The High Court has dismissed the government’s appeal against the Information Tribunal in the first case of its kind under the Environmental Information Regulations. The Tribunal had ruled that the Export Credits Guarantee Department should disclose the submissions it received from other government departments in 2003 about the so-called “Sakhalin project”. This involved a $650 million project to extract oil and gas off the coast of the Sakhalin island, north of Japan, which involved risks to the survival of grey whales, an endangered species. Friends of the Earth had applied for the submissions under the EIRs.

The Information Commissioner had originally accepted ECGD’s arguments that the responses should be withheld under regulation 12(4)(e) of the EIRs, which applies to internal communications. However, the Tribunal agreed with FOE that the balance of public interests favoured disclosure. ECGD appealed against the Tribunal’s decision but the High Court today (March 17th) dismissed the appeal. The court, whose role is limited to hearing appeals on points of law, found that although Tribunal had made some errors they were not critical and that overall the decision was “made in accordance with the law.” It is not yet known whether the government will appeal to the Court of Appeal.

Earlier this month the High Court heard the first appeal involving the Freedom of Information Act’s exemption for policy formulation (section 35(1)). The Tribunal had ruled that the balance of public interest favoured disclosure of the so-called “gateway review” of the ID cards scheme. The decision has been challenged in the High Court by the Office of Government Commerce.

In a surprise development, the Attorney General has intervened in this case on behalf the Speaker of the House of Commons, arguing that the Tribunal’s decision breached Parliamentary privilege by quoting a House of Commons select committee report in support of its finding. Counsel for the Attorney General argued that the Tribunal could not accept a select committee report as evidence without also allowing other parties to the appeal to challenge its findings, but this would breach the 1689 Bill of Rights prohibition against a court questioning statements made in Parliament.

Ironically, the 2004 report from the works and pensions select committee had questioned whether “the current levels of secrecy are necessary”.

The High Court’s decision in this case is expected after Easter.

See:

Friends of the Earth press release

The Tribunal's decisions:
Friends of the Earth v Information Commissioner and Export Credits Guarantee Department (pdf)
Office of Government Commerce v Information Commissioner (pdf)

Contractors "should be subject to Information Act"

The Campaign for Freedom of Information is calling for private contractors providing services to the public on behalf of public authorities to be made subject to the Freedom of Information Act in their own right.

The private bodies which should be brought under the Act include those providing treatment or diagnosis to NHS patients, private care home owners acting under contract to local authorities, contractors running schools for local education authorities or operating prisons or prisoner escort services. Private train, bus and tram operating companies and contractors responsible for the running of London underground lines should also be covered by the Act, the Campaign says.

The Campaign’s director, Maurice Frankel, said: “These services were previously provided by public authorities directly and would otherwise have come under the Freedom of Information Act when it came into force in 2005. Contracting-out has led to a reduction in the public’s rights to information, which should be restored.”

The same principle should also apply to voluntary organisations providing services under contracts with public authorities, says the Campaign. Bodies representing the voluntary sector have recently argued that the Act should not extend to them. But the Campaign points out that public funding for the voluntary sector has risen from £5 billion annually in 1997 to £10 billion in 2007, much of it to enable the voluntary sector to take over the provision of services from public authorities. The Campaign points out that some of the large voluntary bodies receive more public funds than conventional public authorities.

The Campaign is also calling for private bodies with public functions to be brought under the Act. These should include academy schools, housing associations, new deal communities partnerships and local strategic partnerships. Other candidates should include BAA which runs Heathrow and other airports, NATS (the body responsible for air traffic control), Network Rail, port authorities, self regulatory bodies like the Press Complaints Commission, the Advertising Standards Association and the Solicitors Regulation Authority and standard setting bodies like the British Standards Institute.

The Campaign’s comments are made in response to a Ministry of Justice consultation about the possible extension of the FOI Act. The Campaign’s full response can be found here.

All MPs' claims may be published

BBC News
14 March 2008

Detailed expenses claims of all MPs dating back to 2004 look set to be published, the BBC has learned.

Most MPs can claim up to £23,000 a year towards the cost of a second home using the additional costs allowance (ACA).

The Commons has been ordered to publish details of 14 MPs' claims under Freedom of Information laws. Sources say all claims may be published by December.
...

The BBC has learned that Commons authorities have been advised there are no legal grounds to appeal against the information tribunal's decision.

It is likely they will be flooded with Freedom of Information requests for details of other MPs' claims and it is understood that senior MPs from all sides believe it would be better to publish all claims by the end of the year.

MPs can claim ACA to cover the costs of staying overnight away from their main home, including rent, hotel bills and mortgage interest payments.
...

Earlier the so-called "John Lewis list", used by Commons clerks as a guide to maximum prices MPs can claim per item, was published after another Freedom of Information request.

It showed MPs were allowed to claim up to £10,000 to install a new kitchen, up to £6,335 for a new bathroom and £750 for a television or stereo.

All MPs' claims may be published - BBC

NOMS issued with practice recommendation

The National Offender Management Service (NOMS) has been issued with a practice recommendation by the Information Commissioner's Office. An ICO press release states:

A review into the handling of FOI requests by NOMS found that the agency had repeatedly extended the time limit for considering whether there was a public interest in releasing information, in some cases for 12 months consecutively, and had failed to give specific reasons for the delays. In the ICO’s view such delays may appear to be designed to hold-up the process of providing full responses to FOI requests. The ICO is also aware of a number of unacceptable delays in dealing with internal reviews after a request has initially been refused. In one case an internal review was only completed nearly 29 months after being requested.

The ICO’s review of NOMS found that the agency had not acted in accordance with the Act and had failed to conform to the associated Codes of Practice in various ways, including giving unhelpful advice which could be discouraging to requesters. The ICO also considers that the agency regularly failed to explain sufficiently why exemptions applied when refusing to release information.

View the practice recommendation (pdf)

SIC newsletter March/April 2008

The latest edition of Inform, the Scottish Information Commissioner's newsletter, has been published:

In this edition I announce the launch of my 2007 Annual Report, highlight the publication of the first in an ongoing series of updated FOI briefings, report from an international conference on developing FOI rights, and flag up the availability of revised publication scheme guidance for Scottish public authorities.

See also:

New SIC guidance on Vexatious or Repeated Requests
New Publication Scheme Guidance

SIC Annual Report 2007

The Scottish Information Commissioner has published his Annual Report for 2007. The report also contains the first comprehensive data on appeals received by his office in 2005-07:

"It is now five years since I became Scotland’s first Information Commissioner, and during that time I have been heartened by the determination shown by many –in government, public authorities and the media, as well as by applicants –to make Scotland’s new Freedom of Information (FOI) legislation a success. As this report shows, the extent to which the new rights have become embedded in public life and used on a daily basis has undoubtedly contributed to Scotland’s reputation as having a progressive and effective FOI regime.
...
In my report this year, I look back at where we have come from, and reflect on how we came to be in the strong position we now occupy, a mere three years since FOISA fully came into force. I reflect on the successes and experiences of 2007, during which many challenges emerged which tested and deepened our understanding of FOISA. I share with you a rich compendium of data and statistics which give the widest picture of FOI in Scotland today, and which I hope you will retain for reference throughout the year."

Highlights of the 2007 Annual Report include:

• In 2007 alone, the Commissioner dealt with 781 cases and made 249 decisions. 215 applications were closed without investigation and 135 were withdrawn or settled'.Case closure rates have improved year on year – by the end of 2007 the caseload had been reduced to 182 applications.
  

• In 2007, the Commissioner greatly reduced the backlog of cases which had built up since 2005, when applications far exceeded expectation. The target remains to close all excess cases by April 2008.
  

• Public awareness of the FOI has increased to 74 per cent from 47 per cent in 2005.

• 77 per cent of appeals came from ordinary members of the public, 7 per cent from elected representatives, 6 per cent from the media and 4 per cent from voluntary/campaigning organisations.

• 89 per cent of authorities think they have become more open since FOISA, while 64 per cent of the public think they are now more open and accountable.

• Nearly 1 in 10 respondents to the public opinion survey in 2007 had made a written request to a public authority. 86 per cent of these received all or some of the information they asked for.

See:

SIC press release - Annual Report 2007 published first comprehensive data on FOI appeals
Annual Report 2007 (pdf 987Kb)
Annual Report 2007 - Key Facts (pdf 94Kb)

Scottish Commissioner welcomes release of reliance contract

SIC press release
7 March 2008

The Scottish Information Commissioner, Kevin Dunion, today (7 March 2008) welcomed the decision of the Scottish Prison Service (SPS) to voluntarily publish in full its contract with Reliance Secure Task Management, for its prisoner escort and court custody service.

The Commissioner first received an appeal in relation to this contract in 2004, when the request was considered under the terms of the non-statutory Code of Practice on Access to Scottish Executive Information, a precursor to the FOI Act. The Commissioner later ordered the release of some related performance information following a separate appeal under the FOI Act in 2006. However, this most recent decision by the SPS, with the full support of Reliance, will see the entire contract, including commercial and other sensitive details previously withheld, made available to the public for the first time.

Kevin Dunion said "This is a positive example of the change in culture looked for under Scotland's new FOI regime. In the past, it would have been highly unlikely for this kind of contract to be fully opened to public scrutiny. However, more and more public authorities are recognising that where public services are delivered under contract it is good practice to release such information as there is a genuine public interest in knowing what has been agreed with the private contractor. I am pleased that the SPS has decided to put the full contract into the public domain."

The contract can be viewed on the SPS website here.

Ends

Act Now Training course

Ibrahim Hasan has asked me to post the following:

Records Management : Complying with the Section 46 FOI Code
Manchester : 18th March 2008

This workshop examines the FOI S.46/ FOISA S.61 Records Management Code of Practice. It focuses on how to identify and interpret the relevant requirements, implementing a section 46 compliance regime within a public sector organisation and understanding the resource implications.

Full details at www.actnow.org.uk

I have also done a number of articles of for the Law society Gazette on latest FOI cases. These can be downloaded from www.informationlaw.org.uk