The Information Commissioner’s Annual Report for 2010/11 has been published. A press release accompanying the report highlights the continued progress made by the ICO in reducing the time taken to investigate freedom of information complaints:

Today’s annual report also highlights the significant improvements the ICO has made in the time it takes to handle freedom of information complaints. There are now no cases over 12 months old, compared with three at the end of 2010/11, 117 at the end of 2009/10 and 418 two years ago. Process improvements and changes to the ICO’s organisational structure made during the year enabled the ICO to complete more decision notices than ever before without sacrificing quality and no increase in the rate of appeals. 

The report is available to download here. A webcast of the report’s launch with a presentation by Christopher Graham is available to watch here.

The Department of Health has decided not to appeal the recent High Court ruling on the definition of personal data in Department of Health v IC [2011] EWHC 1430 and has disclosed the disputed statistics on the number of late of abortions carried out in England and Wales.

Following the Department’s appeal to the High Court, Mr Justice Cranston held that the Tribunal had been entitled to find, from the evidence before it, that the proposed disclosure was of fully anonymised data, which would not identify or (in combination with other information) lead to the identification of any of the individuals concerned.

The key part of the judgement considered the meaning of a disputed passage in Lord Hope’s judgement in the House of Lords ruling on Common Services Agency v Scottish Information Commissioner [2008] UKHL 47. This was the request for childhood leukemia statistics by census ward in Dumfries and Galloway.

Mr Justice Cranston found that:

• Lord Hope had recognised that the CSA could itself always identify the children involved from the original information which it held

• it did not follow that statistics derived from that data, if disclosed in a fully anonymised form would still be personal data. This is a point on which, he found, all members of the House of Lords demonstrated ‘a shared understanding’.

• the House of Lords decision to refer the issue back to the SIC in that case was not to determine whether the process of barndardisation would transform the data into data that would no longer be personal data in the hands of CSA itself. (This is what the Tribunal had found in its ruling in the abortion statistics case.) The process of barnardisation (by which low numbers were randomly increased or decreased by 1 or left as they were) was not capable of doing this, since Lord Hope had expressly recognised that the CSA would still hold data identifying the children concerned. The point of the referring the case back to SIC was to determine whether bardnadisation could prevent the public from identifying any of the children involved.

•the Tribunal had made an error of law. It should have found that disclosure of fully anonymised abortion statistics to the public did not involve a disclosure of personal data, even though the Department of Health, the data controller, could still identify each of the women involved.

• any other conclusion would be ‘divorced from reality’. The argument that the data remained personal data, even if disclosed to the public in fully anonymised form, because the data controller could identify those involved, would lead to the conclusion that to reveal that 100,000 women had an abortion in a particular year would be to disclose personal data about every one of them, which “is not a sensible result” and would seriouslty inhibit the publication of medical statistics.

See also:
Department of Health statement 5 July 2011

Thousands of children held in police cells overnight – Guardian 13/06/11
At least 53,000 children under the age of 16 were held overnight in police cells in 2008 and 2009, including 13,000 children aged between nine and 13, according to figures obtained by the Howard League for Penal Reform from half the police forces in England and Wales.

Foreigners pay £1m for NHS liver operations – The Sunday Times 12/06/11 (subscription only)
A hospital in the National Health Service has been paid more than £1m in the past two years for carrying out private liver transplants on foreigners using scarce organs donated by British patients. King’s College Hospital NHS Foundation Trust, in London, was paid £1,082,064 for 22 private liver transplants on foreign patients between January 2009 and February 2011, according to figures obtained under the Freedom of Information Act.

Vulnerable pupils are most likely to suffer expulsion – Your Ashford 12/06/11
Figures released under the Freedom of Information Act reveal that of 168 secondary school youngsters who were permanently excluded in the county of Kent last year, more than half had been assessed as needing close attention due to learning problems such as autism and dyslexia.

MoD Report Sparks Nuke Safety Fear – The Sunday Post 12/06/11 (subscription only)
A damning MoD report has said the future safety of the UK’s nuclear defence programme is being jeopardised by spending cuts. The report by the MoD’s internal watchdog the Defence Nuclear Environment Safety Board was released under Freedom of Information. Read the article in The Herald.

No home to call their own – Inside Housing 10/06/11
The number of homeless households in England is set to jump dramatically this week as councils publish their official figures. Freedom of information requests by Inside Housing, which obtained the figures ahead of their expected publication on Thursday, reveal that 37 out of the 51 councils who provided figures for 2010/11 saw homelessness increase.

More than 70 per cent of NHS trusts break rules to deny IMF – and save money – The Independent 07/06/11
Women unable to conceive naturally are being denied IVF on the NHS because they are too young, too old, too fat, smoke or live in Wales – in flagrant breaches of the guidelines. The information was disclosed after the All Party Parliamentary Group on Infertility sent Freedom of Information requests to all 177 PCTs in England and Wales in March and received 171 replies.

Architects net £98m from schools – The Sunday Times 05/06/11 (subscription only)
Architects have claimed nearly £100m in fees from just 21 councils under Labour’s multi-billion-pound school-building programme, newly disclosed figures show. The architects’ fees were revealed after a freedom of information request by the Conservative party. Read the story on the Conservatives website.

HMRC launched 9,368 investigations into inheritance tax valuations over the last year – UHY Hacker Young 06/06/11
HMRC collected £70 million of additional tax by challenging the valuations of properties included in the estate of a deceased person in 2010. A freedom of information request obtained by accountants UHY Hacker Young has revealed that HMRC examined 9,368 inheritance tax valuations over the last year and has raised an average of £24,000 per case in additional tax.

Did sports club members jump the housing queue? – This is Nottingham 02/06/11
An investigation by the Post has revealed that some members of a city sports club may have received preferential treatment in the allocation of council houses. Using leaked housing records and requests under the Freedom of Information Act, the Post has identified eight players and their families who received offers for a total of 18 properties during two-and-a-half years from late 2002 to 2005.

Shock figures that spell out the extent of London’s reading crisis – The Standard 01/06/11
Data obtained by the Standard show as many as one in three children in parts of the capital lags behind – far worse than was first feared. The figures reveal the extent of the literacy crisis in London, with many state schools failing to give children the most basic of life skills. The statistics, uncovered after a five-month freedom of information battle, led parents and experts to call on the Government to tackle the scandal.

Trafficked children condemned to a nightmare by state neglect – The Observer 28/05/11
Thousands of trafficked children are being abused and murdered by their captors, but UK officials remain indifferent and skeptical. A freedom of information request revealed that 173 unaccompanied asylum-seeking children, all vulnerable to traffickers, went missing from Kent council’s care homes in 2009.

Trust me, Cable tells arms trade, I sold weapons to Latin America – The Times 30/05/11 (subscription only)
Vince Cable’s days as a young diplomat were spent as an arms broker helping to sell British-made weapons to one of the world’s most unstable regions. In a private speech to a symposium of arms exporters in London last November, a copy of which has been obtained by The Times under the Freedom of Information Act, Dr Cable set about calming nerves among the industry that his past stance against arms exports would make him queasy about fighting their cause abroad.

Councils spend £100m on taxpayer funded credit cards – The Telegraph 31/05/11
Councils have spent tens of millions of pounds on taxpayer-funded credit cards with local authority executives and councillors treating themselves to first-class travel to foreign destinations and stays in five-star hotels. The Daily Telegraph has obtained details of credit card spending at 186 councils across Britain using Freedom of Information laws.

UK trained Bahraini army officers even after crackdown began – The Independent 30/05/11
Britain continued to train Bahraini army officers at Sandhurst months after the Gulf state began its brutal crackdown against pro-democracy demonstrators, it was disclosed yesterday. Five Bahraini officers were receiving tuition at the élite military academy in Surrey as recently as last month, a Freedom of Information request has revealed.

UK training Saudi forces used to crush Arab spring – The Observer 28/05/11
Britain is training Saudi Arabia’s national guard – the elite security force deployed during the recent protests in Bahrain – in public order enforcement measures and the use of sniper rifles. In response to questions made under the Freedom of Information Act, the Ministry of Defence has confirmed that British personnel regularly run courses for the national guard in “weapons, fieldcraft and general military skills training, as well as incident handling, bomb disposal, search, public order and sniper training”.

Waste Watch: Councils Spend Millions On Away Days – 26/05/11
A Sky News Waste Watch investigation reveals local authorities spent more than £2 million on away days over the last two years, as Britain plunged into recession. Using Freedom of Information legislation, Waste Watch contacted every council in Britain for details of spending on team-building trips, away days and ‘brainstorming’ sessions.

Ministry of Justice
26 May 2011

Europe is in danger of making the wrong choices on new data protection rules, Secretary of State for Justice Kenneth Clarke said.

Speaking at the British Chamber of Commerce in Belgium, Mr Clarke reiterated the UK Government’s commitment to restoring civil liberties, citing the Government’s achievements in scrapping ID cards, and working to end the misuse of anti-terrorism stop and search powers.

He stressed that collecting data in the interests of national security must not come at the expense of UK citizens’ basic freedoms, particularly the right not to have their personal data treated carelessly or even fall into the wrong hands.

The Justice Secretary also warned, however, that collecting data sensibly and sharing it safely across borders is a crucial part of efforts to tackle international crime and protect our security, and is entirely consistent with ensuring strong standards of data protection.

The EU is currently reviewing its data protection rules and Mr Clarke’s speech made clear the Government’s belief that it must be up to all Member States to decide the details of when to use and share data to keep their citizens safe – particularly in detecting crime and preventing terrorism. He also warned Member States of the dangers of unnecessarily prescriptive rules in this area.

Kenneth Clarke said: ‘Imposing an inflexible, detailed data protection regime on the whole of the EU, regardless of the peculiarities of different cultures and legal systems, carries with it serious risks.

But he added: ‘I am optimistic that there’s a common sense solution on this. Our experience in the UK is that security, freedom and privacy are possible.’

While in Brussels, the Justice Secretary also met UK Members of the European Parliament and discussed data protection issues.

The speech is available to download in full here.
See also comment by Chris Pounder on the Amberhawk blog.

Letter
The Guardian, Friday 27 May 2011

The president of the Royal Society calls for changes to freedom of information laws to prevent them being misused (Data laws ‘misused’ in climate change row, 26 May). However, existing safeguards address many of his concerns. Deliberate attempts to “intimidate” scientists, if that is what they are, can be refused under the Freedom of Information Act’s safeguards against vexatious requests. Unreasonable requests for all pre-publication drafts of scientific papers can be refused under an exemption for information due for future publication. Explanations of why changes to successive drafts were made do not have to be provided unless they exist in writing. Multiple related requests from different people, if they are co-ordinated, can be refused if the combined cost of answering exceeds the act’s cost limit.

Another academic is quoted as saying many FoI requests are made in order to find problems and errors – but that is a valid use of the act. It was the misguided attempt to deny ammunition to critics that led to the Climategate fiasco. The resulting independent review found there had been an “ethos of minimal compliance (and at times non-compliance) … with both the letter and the spirit” of the legislation, and that the campaign of requests to the UEA climatic research unit was partly the result of its own “unhelpful” response to earlier requests. It is not clear that much has changed.

Maurice Frankel
Director, Campaign for Freedom of Information

http://www.guardian.co.uk/science/2011/may/27/scientists-freedom-information-law-safeguards

Internal report reveals fear of sudden ruinous rise in oil prices – The Times 24/05/11 (subscription only)
A sudden huge increase in oil prices would cut more than £102 billion from the economy over the next five years, wrecking Britain’s economic recovery, increasing unemployment and provoking industrial action, according to a Department for Energy and Climate Change report obtained under the Freedom of Information Act.

Empty homes to be demolished ‘hidden from figures’ – BBC 23/05/11
Around 12,000 empty homes are hidden from official figures because they are earmarked for demolition, according to The Empty Homes Agency, which discovered the numbers using a freedom of information request.

Welsh schools’ GCSE performances revealed – BBC Wales 23/05/11
The Welsh Government places schools in “families” – groups of about 10 – where pupils have similar levels of family income and special needs. In one case a school’s results are 42% better than another in the same family. The details were obtained by BBC Wales under the Freedom of Information Act.

Sharp drop in risk assessments into financial firms – The Guardian 22/05/11
The number of risk assessments into financial firms has fallen dramatically since the banking crisis in 2008. In response to a Freedom of Information Act request, the FSA revealed 936 risk assessments took place in 2002, with 616 in 2004 and 427 in 2006. The number then stabilised around 300 until 2008 when it fell to just over 200.

Radiotherapy centre was regarded as one of the five ‘highest priority projects’ – The Londonderry Sentinel 13/05/11
Documents obtained through FOI show that the move towards halting plans to proceed with a badly-needed radiotherapy centre at Altnagelvin Hospital came just hours after it was described as one of the Department of Health’s highest priorities. The Department of Health, Social Services and Public Safety released various drafts of the controversial statement made by then Health Minister Michael McGimpsey on the last day of the Assembly.

NDCS map shows local authorities failing to protect deaf children’s services – National
Deaf Children’s Society 10/05/11
Figures released by the National Deaf Children’s Society (NDCS) reveal that almost one in five local authorities across England have cut education services for vulnerable deaf children, despite the education budget being protected by the Government. NDCS had to issue 45 Freedom of Information (FOI) requests to obtain the data.

Extent of sexual offences by police being concealed by resignations – The Times 10/05/11 (subscription only)
More than 300 police officers have been disciplined for sexual offences in the past five years, The Times can reveal. Almost a hundred faced sexual assault charges, and 231 misconduct hearings for sexual misconduct, with about a third of the officers dismissed or required to resign. All 52 police forces responded to a freedom of information request for data about sexual wrongdoing by officers, with the exception of Warwickshire.

Birmingham children’s care homes and the £41million scandal – Birmingham Mail 09/05/11
The cost of placing troubled children from Birmingham in private care has rocketed after council chiefs closed four kids’ homes in the city. The information was released to the Birmingham Mail under Freedom of Information laws. The revelation that children from the city are being sent to centres up to 470 miles away in Scotland, as well as East Sussex and County Durham, has been described as a “scandal”.

Hundreds of police sacked in secret hearings – The Times 09/05/11
Police forces are sacking 160 officers every year after misconduct hearings held behind closed doors, an investigation by The Times has discovered. The Times made freedom of information requests to all 52 local forces across Britain. The results uncovered a disciplinary lottery, with officers being fired in one area for offences that might attract only a fine in another.

Councils accused of blocking renewable energy roll out – Renewable Energy Installer 05/05/11
Government plans to support the roll out of a renewable energy network are being hampered by confusion and a shocking level of inconsistency at the local level, a new survey has found. Despite government legislation to scrap the need for planning permission, many councils are still insisting homeowners seek their consent before installing solar panels according to FOI requests submitted by Renewable Energy Installer magazine.

1 in 4 not in council pension – GMB Union 03/05/11
One in four council workers have already opted out of local government pension schemes showing proposed contribution increases to local government pension schemes from 3.2% to 9.6% would be a disaster, and could jeopardise the entire Local Government Pension Scheme for its four million members says GMB. GMB established that data on participation rates in the current Local Government pension scheme using the Freedom of Information Act.

Alok Sharma MP: How Council Tax payers have funded £35 million of Trade Union salaries over the past three years – Conservative Home 28/04/11
In order to find out just how widespread the practice of funding full-time union officials with tax payers’ money was, FOI requests were sent to 429 councils across the country. Out of the 319 councils that responded, 132 had a paid full-time union official in at least one of the last 3 years. The total salary bill over the three year period for full-time union reps was £35 million.

The ICO is consulting on a new Information Rights Strategy, which will replace the former separate data protection and freedom of information strategies. It is being introduced in light of the ICO’s commitment to integrate its data protection and freedom of information activities wherever possible.

The draft Information Rights Strategy is available here.

The consultation is open until 12 August 2011.

The ICO have published their internal freedom of information and environmental information knowledge base on their website. The specialist guidance includes the ICO’s lines to take documents, which “capture the Commissioner’s position in relation to issues that have arisen in casework or as a result of Tribunal decisions”. The LTT documents had previously been released via WhatDoTheyKnow in response to an FOI request by Alex Skene, who made them available in a more accessible manner on the FOI wiki which he hosts. The ICO has decided to make these routinely available together with several legal background papers and other policy resources, which were previously only accessible on the ICO intranet site.

The House of Commons’ Committee considering the Protection of Freedoms Bill last week reached the clauses of the Bill relating to datasets, Freedom of Information and the independence of the Information Commissioner.

Clause 92 of the Bill amends section 11 (Means by which communication to be made) of the Freedom of Information Act 2000, by providing, amongst other things, that where an FOI request is made for a dataset to be provided in electronic form:

• it must, so far as reasonably practicable, be supplied in a reusable format; and
• if the public authority is the copyright holder, no copyright restrictions may be imposed on its reuse other than those set out in a ‘specified licence’. 

However, the Campaign for Freedom of Information has highlighted a number of concerns with the definition of the term ‘dataset’ which underpins the measures. It has pointed out that new subsection 5(c) of the definition currently provides that a dataset ceases to be a dataset if any change is made to the way in which the information in it is presented. On the face of it this means that even a modest change in presentation, such as the merging of two columns of data into one, or the separation of one column into two, would mean that the information ceased to be a dataset. This would lead to the new dataset provisions being circumvented by relatively modest changes to the way in which the dataset is presented.

This issue was raised by Tom Brake MP (Lib Dem, Carshalton) and Vernon Coaker MP (Lab, Gedling) during the debate. In response, the minister, Lynne Featherstone, promised to look again at the drafting of the clause:

Lynne Featherstone: Both the hon. Member for Gedling and my hon. Friend the Member for Carshalton and Wallington asked whether the definition of datasets excludes basic organisation of the information in a dataset, such as sorting alphabetically or merging two documents. We accept that the information in many datasets may have undergone some reorganisation or change in presentation; I am talking about the minor amendments that my hon. Friend was concerned might lead to a wrong use of subsection (5)(c). The objective and intent for a change is that it is not significant or substantive, such that it still constitutes the factual source data or raw data, un-manipulated in form. The policy is that such datasets are still covered by the definition. Such minor alterations, which are not significant or substantive but involve just a reorganisation or change in how the information is presented, are still covered by the definition of “dataset”, which is a subset of “information” under freedom of information legislation…Organised and adapted in such a context means that the information must have been materially organised or materially adapted for the information not to constitute a dataset.

Vernon Coaker: In all honesty, the Minister needs to look at how the clause is drafted. It does not say that. I am not making a point of difference or a point of principle, nor am I angry about the matter and think that it is a disgrace. I agree with the hon. Member for Carshalton and Wallington. If the hon. Lady reads subsection (5)(b) and (c)—

Lynne Featherstone: I did.

Vernon Coaker: I know that the hon. Lady has just read out subsection (5)(c). Such provisions are a lawyer’s paradise. In calmer times, she must just check whether the clause needs to be looked at again or materially altered. I am not a lawyer, so we will no doubt have a row about the meaning of “materially”. She might want to reflect on such matters and change them.

Lynne Featherstone: I hear what the hon. Gentleman is saying about the concerns that the drafting of the clause does not match its intention. I am happy to have a look at it. My understanding is that the clause does say what I intend it to say, but I take such the advice in the spirit in which it was offered and will have a second look at it. I definitely would not wish to give the lawyers a feast.

Clause 92 also amends section 19 of the FOI Act, requiring authorities to publish any requested dataset as part of their ‘publication schemes’ and keep it up to date, unless the authority is satisfied that this is not appropriate. The Campaign for Freedom of Information has pointed out that this involves a subjective test and would be difficult for the Information Commissioner to oversee. The minister has also now promised to look again this:

Vernon Coaker: I will be accused of being a pointy-head for other reasons in a minute, but clause 92(4)(a) states that a publication scheme must, in particular, include a requirement for the public authority concerned to publish,

“unless the authority is satisfied that it is not appropriate for the dataset to be published”.

To use the words “is not appropriate” makes the provision incredibly wide. The hon. Lady might say that she totally disagrees with what I have said, and that the provision is not widely drawn at all. I think that it is. It is a drafting point; it is not a point of principle. When the words “is not appropriate” are included, people will argue about their meaning. It is a get-out for people. If an authority does not wish to publish, it can say, “It is not appropriate for us to publish”.

Lynne Featherstone: I hear what the hon. Gentleman is saying, but I imagine that it is an interpretation in law. He is right in that there is an opportunity, if that is how he is framing this, in the words,

“unless the authority is satisfied that it is not appropriate for the dataset to be published”.

Clearly, that is not meant to be a get-out clause for authorities not to publish. The presumption and the message going out is that everything that can be published, should be published, but I will take that away and have a look at it.

The minister also responded to views expressed during oral evidence to the Committee, that if the Information Commissioner is to be limited to single term of office, it should be for longer than the 5 years proposed in the Bill. Government amendments to increase the term to 7 years were passed by the Committee.

With amendments 150 and 151, the Government want to increase the length of the single period of office from five to seven years. Both the Information Commissioner and the Campaign for Freedom of Information have welcomed the move to a single term of office…In oral evidence to the Committee, the Campaign for Freedom of Information suggested that a five-year term might be too short to allow the commissioner to be fully effective and could limit the field of applicants for the role. We have looked again at that point in the light of the concerns that were raised…Lengthening the term that the Information Commissioner serves to seven years is an appropriate response to the concerns expressed to the Committee, balanced against the points made by the Public Administration Committee and the Tiner review. Additionally, a seven-year term is consistent with similar appointments such as the Parliamentary and Health Service Ombudsman, who is also appointed for a single, non-renewable term of up to seven years.

But the minister confirmed that the Government were not considering extending the provisions on datasets to the Environmental Information Regulations as well as the Freedom of Information Act:

The Government consider that the environmental information regulations implement Council directive 2003/4/EC on public access to environmental information. No changes to the regulations are currently being considered. The environmental information regulations already require environmental information datasets to be proactively disseminated to the public, so there was no need for us to cover the same ground. 

A number of wider points aimed at strengthening the FOI Act were raised by Tom Brake MP. The minister responded that many of these fell outside the remit of the Bill, but that the parliamentary committee may want to consider them when it undertakes post-legislative scrutiny of the FOI Act later this year.

The Hansard of the debate is available here. You can watch the debate here.

ICO press release
12 May 2011

Aberdare Girls’ School has signed a commitment to improve its freedom of information practices following concerns over the school’s handling of a Freedom of Information (FOI) request, the Information Commissioner’s Office (ICO) said today.

The ICO contacted the school in October 2009 after receiving a complaint about the school’s refusal to disclose information. The information in question related to the legal costs and advice sought over the exclusion of a former pupil who refused to remove a religious bangle. During the ICO’s enquiries the school repeatedly failed to provide timely responses to the Commissioner’s questions. This led to the ICO issuing the school with an Information Notice requiring them to disclose information necessary to the investigation.

The ICO issued a decision notice ordering the school to provide the information to the requester on the 20 December 2010. The ICO has also now served the school with an undertaking to ensure that it continues to demonstrate a commitment to openness and compliance with the Freedom of Information Act.

Assistant Commissioner for Wales, Anne Jones, said:

“This case should serve as a warning to all public authorities that are failing to fulfil their obligations under the Freedom of Information Act.

Where justified, we will use the powers available to us to ensure authorities are open and accountable.

I am pleased that Aberdare Girls’ School has signed a commitment to improve its handling of information requests.”

P Scott, Chairman of Aberdare Girls’ School has now signed a formal undertaking to ensure that staff receive adequate training on the requirements of the FOI Act. The school will also provide the Commissioner with timely responses to any future enquiries related to the school’s handling of information requests made under the FOI Act or the Environmental Information Regulations.

A full copy of the undertaking can be viewed here:

http://www.ico.gov.uk/what_we_cover/promoting_openness/taking_action.aspx#Undertakings

ENDS