The Prime Minister has given a speech on transforming politics in which he set out the next steps of the Government’s programme of constitutional and parliamentary reform. He also spoke about the importance of citizen empowerment through opening up government and and reducing the time taken to release official documents:

But the test of our commitment to democracy is not merely the changes we make to the institutions at the centre: it is how far we are prepared to give power away; to give citizens themselves greater control over their lives.

That is why citizen empowerment must be at the heart of the new politics I want to see.

That means opening up government, with much more control and information held by the public and not concentrated in Westminster and Whitehall. Over and above our commitment to transparency through FOI we are committed to progressively reducing the time taken to release official documents – ensuring the public have access to public papers far quicker than ever before.

And we can now open up government in new transformative ways not open to us a decade ago.

We have brought public services closer to people in the internet age through the direct.gov website.

And last year I invited Sir Tim Berners Lee, the inventor of the world wide web, and Professor Nigel Shadbolt, to work with us on opening up even more government information to all the people of the country.

In a short space of months we have now created data.gov.uk which already opens over 2,500 data sets to enable people to hold us to account and make decisions about their public services – from monitoring traffic accidents locally to seeing how your local schools are performing.

But this is just the start of creating new, more transparent public services and public sector bodies.

Public services will not only be more personal in future but they will be more interactive – with the ability of the citizen enhanced to make their views known directly and influence the way our communities work.

Already as a result of the Berners Lee /Shadbolt initiative a transformation is at work. A myriad of applications are being developed on the web by citizens for citizens – new websites on health, education, crime and local communities – that inform, enrich and enliven our democracy. It is truly direct democracy in action.

Over the next few months we will be releasing more and more information; we will make it easier to link different datasets together so that you can assess the overall picture of public services in your community; and Nigel Shadbolt is working with local government to extend the same principles there.

A transcript of the speech, delivered at ‘The New Politics’ event hosted by IPPR on 2 Feb 2010 at the RSA, is available here and video here.

The Campaign for Freedom of Information is running the following half-day training course:

The course, which is aimed at those with a good working knowledge of the legislation, highlights the latest developments in the way the main exemptions, the public interest test and the legislation’s procedural requirements are being interpreted.

It will cover the most significant decisions that have been issued since our last course in November 2009. The content will therefore vary, depending on the cases that have been decided, but the course typically addresses issues such as: “fair” and “unfair” disclosures of personal data; the FOI/EIR border, the application of specific exemptions; where the public interest line is being drawn; vexatious requests; the cost limit, advice & assistance and other administrative provisions.

The course will be presented by the Campaign’s director, Maurice Frankel, who has worked in the field for 26 years. Significant discounts are available for multiple bookings from the same organisation.

Further information:
https://www.cfoi.org.uk/pdf/foidecisions_june10.pdf

A number of comments on other blogs have suggested that a prosecution could be brought under section 77 of the FOI Act even if it was more than 6 months after the offence had been committed.

Section 127(1) of the Magistrates Court Act states that “a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”

The question is: does this mean that a prosecuting authority can initiate a prosecution either within 6 months of the offence occurring or within 6 months of a “complaint” about this matter being made?

Section 127(1) of the Magistrates Court Act appears to be referring to two different types of proceedings, proceedings for an offence and proceedings which involve the making of a complaint to the court. We do not think they should be seen as two different ways of referring to the same potential prosecution.

An example of proceedings for a “complaint” can be found in section 82 of the Environmental Protection Act 1990 which states:

“A magistrates’ court may act under this section on a complaint made by any person on the ground that he is aggrieved by the existence of a statutory nuisance.”

This type of proceeding would have to be brought within 6 months from the date when “the matter of the complaint arose”.

The “date on which the matter of the complaint arose” does not seem to refer to the date on which the complaint was made, but to the date of the events which led to the complaint.

This seems clear if you strip out the references to an “offence” in section 127(1) but keep those which refer to a complaint. The section then reads:

“a magistrates’ court shall not… hear a complaint unless …the complaint [was] made, within 6 months from the time when…the matter of complaint arose.”

That is not saying that the court must hear the complaint within 6 months of the complaint being made but within 6 months of the matter complained about occurring. In relation to a complaint about statutory nuisance under the Environmental Protection Act, the court would have to deal with the matter within 6 months of the nuisance occurring.

This suggests that what section 127(1) means is that (a) where proceedings for an offence are brought, they must take place within 6 months of the offence occurring and (b) where proceedings relating to a complaint are brought, they must take place within 6 months of the events which are complained about.

Many laws other than the FOI Act have been amended to extend this 6 month limit. None of those amendments would have been necessary if section 127(1) of the Magistrates Court Act already allowed a prosecution to be brought either within 6 months of the offence occurring or within 6 months of it coming to light.

One recent example are the Building Regulations. In July 2007, the Department of Communities and Local Government issued a consultation paper seeking views on whether the 6 month limit should be extended in relation to these regulations. The paper, entitled “Longer time limits for prosecution of breaches of Building Regulations” said:

“2.4. Because prosecutions must be brought in a magistrates’ court, they must comply with the rules relating to such courts. Currently, section 127(1) of the Magistrates’ Courts Act 1980 requires that any prosecution in a magistrates’ court must be brought within 6 months of the date the offence was committed. Consequently, local authorities must bring prosecutions under section 35 of the Building Act for breaches of building regulations within 6 months of completion of the offending work. Representations have been received from representatives of local authorities and others that this can operate as an obstacle to effective enforcement, given that there can be latent breaches or those discovered after the expiry of the 6 months’ time limit. Such a regime can be difficult to administer when the pressure of normal building control work can crowd out resources for prosecution.”

Later the consultation paper says:

“Organisations representing local authorities have made repeated representations in recent years about the effect that the current time limits have on their ability to pursue non-compliance. With the 6 month time limit for starting proceedings at magistrates’ courts running from the date of the offence, i.e. the completion of the offending works, and late emergence of (what may not be obvious) building defects, this can easily eat into the time that local authority prosecutors need to prepare an effective case. As a result, cases of non compliance can escape prosecution.“

Following this consultation, the Building Regulations were amended by The Building (Amendment) Regulations 2008. The new regulations allow a prosecution to be brought within 2 years of the offence being committed, provided this was within 6 months of the prosecuting authority learning about the offence. Clearly, this change would not have been needed if section 127(1) already had the wider meaning that some have suggested.

In July 2009 the Campaign for Freedom of Information drafted an amendment, which Lord Dubs attempted to make to the Coroners and Justice Bill. This would have amended the Freedom of Information Act to allow a section 77 prosecution to be brought within 3 years of the offence being committed, provided it was within 6 months of the ICO obtaining evidence of the offence. The Information Commissioners Office supported this amendment.

The government did not accept the amendment because – it claimed – there was no evidence that the 6 month limit was causing systemic problems. It did say that if such evidence arose, it would look for ways to put the matter right, and if necessary amend the FOI Act. If the government accepted that the 6 month limit only ran from the time when the ICO became aware of the offence, it would have said the amendment was unnecessary for that reason.

That has also tended to confirm that section 127(1) does not at present allow a prosecution to be brought more than 6 months after the offence itself has occurred, and that the FOI Act should be amended so that prosecutions can be brought after that 6 month period is over.

In the Sunday Telegraph on January 30 2010, Christopher Booker suggested that a prosecution for conspiracy to commit an offence under s 77 of the FOI Act could be brought under the Criminal Law Act 1977, even if the 6 month period had expired.

However, it appears that any proceedings for conspiracy to commit an offence would be subject to the same time limits as those applying to the offence itself. Section 4(4) of the 1977 Act states:

“Where (a) an offence has been committed in pursuance of any agreement; and (b) proceedings may not be instituted for that offence because any time limit applicable to the institution of any such proceedings has expired, proceedings under section 1 above for conspiracy to commit that offence shall not be instituted against any person on the basis of that agreement.”

This suggests that, even if a conspiracy charge were possible, it would not provide a way round the problem created by the 6 month limit on prosecutions in the Magistrates Court Act.

The ICO’s statement that the university at the centre of the ‘climategate’ email scandal did not deal with FOI requests as it should have done under the legislation has received a lot of media attention. Section 77 of the Act makes it an offence for any person to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing its disclosure. The offence is triable only in the magistrate’s court. However, under section 127(1) of the Magistrates Court Act 1980, proceedings for all such offences must be brought within 6 months of the offence occurring.

In a statement on the University of East Anglia case, the Deputy Information Commissioner Graham Smith said:

The FoI Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information. Mr Holland’s FOI requests were submitted in 2007/8, but it has only recently come to light that they were not dealt with in accordance with the Act. The legislation requires action within six months of the offence taking place, so by the time the action came to light the opportunity to consider a prosecution was long gone.

This problem came to the Campaign for Freedom of Information’s attention last year. It was clear that the offence could rarely be detected in time for a prosecution to be brought. It can take several months before an authority responds to a request and carries out the internal review which is necessary before a complaint can be made to the ICO. Once complaints were made, it took on average 8 months before the ICO investigation even began, according to a report we published in July 2009. This means it would usually be impossible for the ICO to detect an offence within 6 months of it occurring.

The Campaign therefore drafted a proposed amendment to section 77 to extend the time limit for prosecutions. The amendment was identical to provisions already found in several other statutes, such as the Animal Welfare Act 2006 and the Theft Act (amended by the Vehicles (Crime) Act 2001), where the government itself had decided to extend the 6 months limit for prosecutions. More recently, in 2008, the Building Regulations were amended following a public consultation, as local authorities had maintained that the 6 month period did not allow prosecutions to be brought where a breach of the regulations only came to light after completion of the building work or where remediation of the work had been promised but not carried out.

The proposed amendment would have allowed a prosecution to be brought within 6 months of the evidence of the offence coming to the Commissioner’s knowledge, rather than within 6 months of the offence being committed. The amendment was tabled to the Coroners and Justice Bill by Lord Dubs. However, the government rejected this opportunity to close the obvious loophole – though it was clear then that if an authority deliberately shredded records it would almost certainly avoid punishment.

Responding to the amendment, the minister Lord Bach said:

The Freedom of Information Act 2000 came into force only in 2005, and I have to tell my noble friend that we have no evidence at present that the current six-month time limit presents a systemic problem for the Information Commissioner or any other prosecutor in taking action under Section 77. However, I shall say this, which I hope will give my noble friend some comfort. We will listen to the views of the Information Commissioner and other interested parties on this point, and if there is evidence that the current legislation is causing systemic difficulties, we will look for ways to address the matter, if necessary by means of an alternative legislative vehicle in the future. However, I cannot go further than that today on behalf of the Government.

The full debate on the amendment is here.

The Information Tribunal has rejected an appeal by the Higher Education Funding Council for England against a decision by the Information Commissioner ordering the disclosure of information relating to the condition of buildings at higher education institutions (HEIs). The information was supplied by the HEIs to HEFCE which maintained a database on the management of land and buildings, known as the Estate Management Statistics database.

HEFCE refused a request for information held in the database on the basis that disclosure would constitute an actionable breach of confidence (section 41). However, the Information Commissioner rejected this claim as he did not believe the HEIs would suffer any detriment if the information were disclosed. As such, they would not have an action for breach of confidence and the section 41 exemption was not engaged.

The Tribunal upheld the Commissioner’s decision, but on different grounds. It accepted the risk of damage to any of the HEIs competitive position satisfied the requirement of establishing detriment. But concluded that the public interest factors in favour of disclosure of the information substantially outweighed those in favour of maintaining confidentiality and HEFCE would therefore have a valid public interest defence to any breach of confidence claim:

We believe that there is a very considerable public interest in public institutions of this type, which frequently have a strong connection with a particular town or community, making this type of information available. Certainly no compelling evidence or argument was put to us on why, in general terms, those responsible for such an institution should not have data on this aspect of their stewardship made available to the public as a whole. Guardian News and the Information Commissioner made the additional point, which we find compelling, that if the reason for an HEI having buildings that are unsuitable or in a poor state is that it has suffered from inadequate public funding, then that is an issue on which a properly informed public debate is required.

The Tribunal also considered the meaning of “actionable” in section 41 and whether the exemption is engaged if a claim is merely arguable, or if it is necessary to establish that the claim would be successful.

“Our conclusion on this part of the case, therefore, is that the HEFCE must establish that disclosure would expose it to the risk of a breach of confidence claim which, on the balance of probabilities, would succeed. This includes considering whether the public authority would have a defence to the claim. Establishing that such a claim would be arguable is not sufficient to bring the exemption into play.”

The Higher Education Funding Council for England v Information Commissioner and Guardian News and Media Ltd (EA/2009/0036)

An interesting piece on ConservativeHome’s Local Government Blog on ‘How should council’s cope with Freedom of Information requests?’

On Monday there was a piece in this section by Mark Wallace of the Taxpayers Alliance about all the Freedom of Information requests that Councils have to cope with these days. Conservative controlled Norfolk County Council has complained about the number of them.

A typical council does get hundreds of FIA requests a year and there is a cost involved. But costs could be reduced if there isn’t a great effort made to come up for excuses for witholding the information but it is just handed over.
…
On Freedom of Information requests the subject cropped up at last night at the Value for Money Scrutiny Committee in Hammersmith and Fulham, which I chair. We were scrutinising the budget and among the efficiencies was an item proposed to save £42,000 a year. It is: “Cost containment. Freedom of Information improvements achieved by implementing better workflows through using new systems and better information on the website to enable enquiriers to self serve.” We also talked about presenting the budget with a more detailed, intelligible breakdown of each section. One of the arguments for transparency, for getting all the information available on the website, is that it would reduce the number of FOI requests and Member Enquries as well as the cost of those that do come in.

The Scottish Information Commissioner has issued new guidance explaining the practical effects for public authorities and applicants of the Opinion of the Court of Session in Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73 (see earlier blog post here). The Opinion addressed some important aspects of the FOI (Scotland) Act, particularly in relation to how information requests should be framed and whether a request made on behalf of another (unnamed) person is valid. The SIC is urging public authorities to read the guidance and review their procedures in light of it.

The guidance states:

Making or receiving requests for documents or copies of documents
“FOISA provides a right to obtain information and not a right to obtain copies of specific documents. However, this does not mean that a request for a copy of a document is automatically invalid, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants. If it is not reasonably clear, the public authority can contact the applicant to obtain clarification.”

Providing information in response to a request for documents or copies of documents
“Applicants cannot insist on receiving copies of specific documents, but only receiving information. However, unless the applicant has asked for the information to be provided in a digest or summary, the information provided must be a complete and accurate version of the information contained in the specific documents. This means that it may be easier for public authorities just to provide copies.”

The “true applicant”
“An information request must state the name of the applicant. There is nothing to stop someone making a request on behalf of another person. However, the person the request is being made on behalf of must be named. A public authority which receives a request on behalf of another, unnamed, person has a duty to provide reasonable advice and assistance to the person who submitted the request to provide an explanation of what needs to be done in order for a valid request to be made.”

A summary of the guidance and a link to the detailed guidance are on the SIC website here.

An early day motion has been tabled in the House of Commons calling for companies that are wholly owned by two or more public authorities to be brought within the scope of the Freedom of Information Act. Currently, companies that are wholly owned by a single public authority are subject to the Act, but those owned by two or more authorities are not. The motion calls for this loophole to be closed. It also calls for companies to be covered if they are 90% or more publicly owned, as opposed to the current 100% threshold.

The motion has been tabled by Conservative MP Peter Bottomley with the help of John Cross, a volunteer for mysociety’s FOI website whatdotheyknow.com.

That this House notes that section 6 of the Freedom of Information Act 2000, with certain exceptions, makes companies wholly owned by the Crown or by a single public authority subject to the Act; further notes that a company wholly owned by two or more public authorities or 95 per cent. owned by a single public authority will be outside the scope of the Freedom of Information Act 2000; and calls for the closure of this loophole and for companies owned 90 per cent. or more by any number of public authorities to be subject to the provisions of the Freedom of Information Act 2000.

The motion is open for other MPs to sign. Please write to your MP and ask them to sign EDM 589 on Freedom of Information and companies owned by two or more public authorities. 22 MPs have already signed – check the list here.

Asylum-seeking children are going missing from care – BBC 21/1/10
“At least four children a week who are seeking asylum go missing from the care of local authorities, a BBC investigation has discovered. A total of 330 children aged between nine and 17 vanished between April 2008 and August 2009. Social workers believe many children were targeted for prostitution by traffickers exploiting asylum rules…The exclusive figures were gathered using Freedom of Information requests to local authorities by The Report and voluntary group the Care Leavers’ Association.”

Two thirds’ of London nurses without swine flu jab – BBC UK 21/01/10
“Just one in three nurses in London have been vaccinated against swine flu, the NHS has admitted. A BBC London Freedom of Information request has shown the majority of medical staff remain unprotected against the virus. Although swine flu rarely kills healthy adults, it is dangerous to many patients in hospitals. NHS London insisted the vaccine take-up was “encouraging” and rising, with more than 60,000 staff having had the jab.

Homeless turn to A&E for help – Independent 16/1/10
“The problem of homeless people sleeping on Britain’s streets may have been transferred to hospitals, according to a new study. Although the Government claims that the number of people sleeping rough has fallen by three-quarters since 1988, figures obtained from 173 hospital trusts under the Freedom of Information Act reveal mounting pressure on the NHS from the homeless. In England, a homeless person is admitted to hospital for problems related to drugs or alcohol every three hours. A total of 13,872 people with “ no fixed abode” were admitted to hospital over the last five years for drug or alcohol misuse. Total drug and alcohol related admissions of homeless people have risen by 117 per cent since 2004.”

Regional

Privatisation deal will cost at least £12.8m – thisislocallondon.co.uk 25/1/10
“A controversial services contract between computer giant IBM and Essex County Council will cost the taxpayer at least £12.8million and could last for as long as 12 years, the Guardian can reveal. The privatisation scheme, which has been shrouded in secrecy since it was ratified last month, is being introduced in an attempt to save the authority money by identifying areas for “efficiency” cuts. Under the terms of the contract, IBM will review all services the council provides, before stepping in to make suggestions for savings, and could potentially see the company help run the district’s schools, roads and libraries. The deal, the first of its kind in the UK, was earmarked to last for eight years, but a Freedom of Information request by the Guardian has revealed that a clause in the contract allows it to be extended for a further four years at the authority’s discretion.”

Some Wales childcare complaints ‘not fully’ looked into – BBC 24/1/10
“Concerns have been raised after it emerged complaints against childcare providers in parts of south Wales were not fully investigated by a regulator. The Conservatives said the Care and Social Services Inspectorate Wales (CSSIW) was guilty of some “fundamental failures.”
The CSSIW said immediate action was taken when the issue was identified…The failings came to light after a series of Freedom of Information requests from the programme revealed a number of investigation reports were missing. These included one case in which a childminder’s husband, who was not a registered child carer, was found to be looking after children.”

DNA of innocent people kept on Cheshire Constabulary database- Crewe Chronicle 20/01/10
“Cheshire Constabulary has removed some innocent people from its DNA database.
Figures revealed under the Freedom of Information Act show the force agreed to two requests out of 15 by individuals wishing to have their profiles deleted – a removal rate of 13.3%.
The statistics for 2008/09 were made public after the Tories asked for the details from all 43 forces in England and Wales. The Tories say innocent people trying to get their DNA records removed face a postcode lottery. The average removal rate is only 22%, with six forces not removing any. Chief Constable Chris Sims, of the Association of Chief Police Officers, said they would work with the Government to develop clear rules over DNA retention.”

5,500 empty council houses denied to desperate families – thisislondon.co.uk 20/1/10
“At least 5,500 properties owned by the capital’s authorities are unoccupied, more than 3,000 of which have been vacant for three months or more. This is despite 353,000 people across the city waiting to be housed. The figures, released to the Standard under the Freedom of Information Act, created fury among campaigners…A study by housing charity Shelter found that it will take 33 years to clear the council house waiting list in London.”

Crisis council paid out £350,000 as staff left – Cambridge News 20/1/10
“Taxpayers footed the sixfigure bill to pay off bosses at a council which mistakenly overspent by £1.8 million. An investigation by the News found Saffron Walden-based Uttlesford District Council paid out more than £350,000 to departing employees in deals containing ‘gagging orders’ clauses in the last three years. Some £329,366 of this was paid in the year the authority misspent around £1.8 million of taxpayers’ money after a litany of mistakes in the finance department. The fiasco forced the authority to make 21 people redundant as well as freezing a similar number of vacant posts.”

Terror laws used to catch benefit cheats- Lancashire Evening Post 8/01/10

North Wales Police runs up £750,000 bill on hire cars – Daily Post 5/01/10

Scotland

‘Few schools’ hitting PE targets – BBC 27/1/10
“Fewer than one in five secondary schools and a third of primary schools are providing pupils with two hours of PE a week, according to new figures. Statistics obtained by the Tories said 17% of secondary schools – 55 out of 329 – were hitting the target. The result for primary schools stood at 35%, with pupils in 657 out of 1,866 primaries getting two hours a week…The target was set in 2004 by the last Scottish government, and reinforced by an SNP manifesto pledge to “ensure that every pupil has two hours of quality PE each week delivered by specialist PE teachers”.”