The Lib Dem MP Tom Brake yesterday introduced a Ten Minute Rule Bill to strengthen the Freedom of Information Act. The Bill would remove the ministerial veto; extend the time limit for prosecutions under section 77 of the Act for deliberately destroying or altering a record to prevent disclosure; limit the time allowed for public authorities to respond to requests involving consideration of the public interest; and extend the definition of public authorities to include publicly owned companies where 51% or more of the shares are owned by one or more public authorities, publicly funded “not for dividend” companies, and private contractors delivering high-value public sector contracts.

The Bill will now be printed and receive a second reading in the Commons on 12 November 2010.

Read the Hansard debate here.

This afternoon’s You and Yours on BBC Radio 4 discussed Tony Blair’s comments about Freedom of Information in his memoirs. Maurice Frankel director of the Campaign for Freedom of Information was interviewed for the programme.

You can listen to the programme again here. The FOI feature starts about 46.50 mins in.

Tomorrow (7 September 2010) Call You and Yours will be discussing the Freedom of Information Act and wants to hear from people who have used it. Lord McNally will also be on the programme. Call 03 700 100 400 or use the contact form on the website to contact the programme. The programme is at 12:00 pm BBC Radio 4 (FM only).

This article published by the Campaign for Freedom of Information discusses Tony Blair’s criticism of freedom of information in his memoirs. Although Mr Blair says his views are based on experience of FOI in practice, the Campaign says it is clear that his hostility began well before the legislation was passed. It points out that Mr Blair himself links his criticism of FOI to his realisation that it could help expose Labour’s own scandals.

The National Council for Voluntary Organisations (NCVO) is producing a guide to the use & potential use of Freedom of Information in campaigning. To help develop the guide they are asking voluntary and community organisations who have or would consider using FOI to complete a short online survey. The deadline for completing the survey is Monday 16th August.

·          Complete the online survey

The survey will form a vital part of the guide, alongside case studies, interviews and other research, to highlight key benefits, challenges and learning. Your responses will be invaluable. Please do get in touch with Philip Hadley if you have any questions, comments or queries by email or by telephone on 020 7520 3155.

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.

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. 

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.

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.

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.

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.