As from today (18 Jan 2010), as part of the reform to the tribunals system, the Information Tribunal has been transferred into a new two tier system set up in November 2008.
The work of the Information Tribunal new General Regulatory Chamber, within the First-Tier Tribunal.
See:
Tribunal reform enters final phase – Tribunals Service press release 18/1/2010
Exclusive report by political editor Paul Francis
Kent County Council has been told it must reveal details of all the locations it has considered as possible lorry park sites to deal with Operation Stack.
The KM Group has won an 18-month long battle to force the authority to disclose details of the other sites and how much each option might cost.
An information watchdog has ruled that the council was wrong to withhold the information and has ordered it must be disclosed because of the “considerable environmental impact” and the affect on people living in the area.
KentOnline had sought details of other sites under the Freedom of Act and Environmental Information Regulations.
But KCC said it was not in the public interest to release details of alternative sites, maintaining it was commercially sensitive and disclosure could affect land values.
It also argued the release would create anxiety and uncertainty among those living near the other locations.
In a ruling that comprehensively overturns KCC’s case and upholds our appeal, the Information Commissioner’s Office (ICO) says a list of alternative sites must now be released in the public interest.
The ruling will also mean that information about the possible planning constraints around the M20 site, originally redacted from documents already provided to the KM Group, will be released.
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The ruling has been welcomed by residents and campaigners opposed to the lorry park plan for some 3,000 vehicles but is a setback for the council.
As recently as December, KCC leader Paul Carter told Folkestone and Hythe MP Michael Howard he would not publish the details of the other locations.
Full story here.
ICO Decision Notice FER219834 Kent County Council here.
Some recent parliamentary questions and debates where FOI has been raised.
Justice: Topical Questions
5 Jan 2010, Col 20
Sir Alan Beith (Berwick-upon-Tweed) (LD): Given that the Information Commissioner has today laid before Parliament a report criticising the Secretary of State’s blanket veto on the release of Cabinet Committee minutes from 1997 relating to devolution, will the Secretary of State explain why those particular minutes were, in his opinion, an exceptional case, and why there were particularly pressing reasons to block their disclosure?Mr. Straw: I set out the detailed reasons in a written ministerial statement, with appendices, which I laid before the House as I undertook to do. I am happy to provide the right hon. Gentleman with a copy. The fact is that section 53 of the Freedom of Information Act 2000 is a fundamental part of the scheme of the Act; it was on that basis that the Bill was agreed. The legislation provides for an appointed person to exercise a veto either after a commissioner’s decision or after a tribunal. There is, however, no requirement in the law to wait for a tribunal decision.
Written Answers House of Lords
6 Jan 2010, Col WA99
Lord Tyler: To ask Her Majesty’s Government whether they will extend the application of the Freedom of Information Act 2000 to activities of the BBC which impose charges on individual members of the public. [HL884]Lord Davies of Oldham: Except for information held for the purposes of journalism, art or literature, which is expressly excluded, the BBC is subject to the provisions of the Freedom of Information Act. There are no plans to amend the current provisions.
Business of the House
7 Jan 2010, Col 285-6
Mr. David Heath (Somerton and Frome) (LD): When can we expect a debate on the special report from the Information Commissioner following the veto by the Secretary of State for Justice of the release of Government papers, in contravention of the Information Commissioner’s decision and prior to a tribunal hearing? That is unprecedented, and it is necessary for that report, which is to the House, not the Government, to be debated, and for the Secretary of State to justify his actions. When will that happen?Ms Harman:…As far as the freedom of information request and the veto is concerned, there was a full statement on that by the Justice Secretary on-I think-10 December.
Mr. Heath: A written statement.
Ms Harman: I beg the hon. Gentleman’s pardon-he is right that it was a written ministerial statement. I think I remember that that statement contained the information that there were something like 16,000 routine FOI requests, of which only two have been vetoed, so it was a very exceptional occurrence, which is why things were spelt out in a written ministerial statement. The framework that is set down by the Freedom of Information Act 2000 was followed as part of that process.
Written Answers – House of Lords
11 Jan 2010, Col WA128
Lord Laird: To ask Her Majesty’s Government what assessment they have made of how the Freedom of Information Act 2000 is working; and whether they are considering amending it.The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): Since 1 January 2005 the Freedom of Information Act has enabled the public greater access to official information held by over 100,000 public authorities. The Ministry of Justice publishes annual reports on the operation of the Act in central government and quarterly statistical reports on the performance of central government monitored bodies and their handling of FOI requests since the Act came in to force.
A total of 171,000 requests have been dealt with under the Act by central government monitored bodies during the period January 2005 to September 2009. Eighty-nine per cent of these requests were answered within time, that is, a response was provided within the standard deadline or a permitted deadline extension was applied. Of those requests where it was possible to give a substantive decision on whether to release the information being sought, 62 per cent were granted in full.
There was also a short debate in the House of Lords on 12 January 2010 on FOI and PQs in response to a question by Lord Lucas:
12 Jan 2010, Column 393
Asked By Lord Lucas: To ask the Leader of the House whether she will make proposals for allowing appeals against refusals to answer written Questions to be made to the Information Commissioner.The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): My Lords, Ministers are, of course, responsible for the Answers to Written Questions. The principal role of the Information Commissioner is to enforce and oversee the statutory Data Protection Act and Freedom of Information Act regimes. As paragraph 5.15 of the Companion makes clear, Written Questions are not,
“a ‘request for information’ under the Freedom of Information Act”.
It is right that these processes remain distinct. Accordingly, I will not be making any such proposals.
Lord Lucas: My Lords, it strikes me that, wonderful though Written Questions usually are, there can be occasions when one comes across a department that is reluctant to provide the information requested, and one finds oneself in a situation where we have given to the citizen powers that we have not given to ourselves. Does not the Leader think that it would be good to find a way in which we can encourage departments to provide information-if not by the mechanism that I have suggested-and perhaps even have adjudication on their refusal to do so, so that we can take to ourselves the powers that we have given to everybody else in this land?
Baroness Royall of Blaisdon: My Lords, there are three or four issues here. First, it is very important that the distinction between the two regimes should remain. Secondly, it is of course open to any Member of Parliament to request information under the Freedom of Information Act; and should they so wish, noble Lords should avail themselves of that process. As for departmental Questions, if Members are not satisfied with the Answers to Questions, they can ask further Questions. They can ask Oral Questions if the first Question was a Written Question; they can see the departmental Minister concerned; and they can come and see me. So a range of various options is available to Members of this House.
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Lord Foulkes of Cumnock: Will my noble friend also reflect on the paradox that I get much more detailed information through FOI requests than I get through Parliamentary Answers? Civil servants still have a tendency to draft for Ministers Parliamentary Answers that-save for the presence of the most reverend Primate the Archbishop-remind me of the definition of a bikini: what it reveals is less interesting than what it conceals. I ask my noble friend to think carefully about ensuring that civil servants get instructions to take account of FOI legislation and to be far more forthcoming in drafting Answers for Ministers.Baroness Royall of Blaisdon: My Lords, I hear what the noble Lord says and I have some sympathy with that point of view. The principle is that one should not get less information from a Parliamentary Answer than one receives under FOI. The thing is that under FOI one receives raw information, whereas under a Parliamentary Answer it is-
A noble Lord: Spun.
Baroness Royall of Blaisdon: No, my Lords, not spun-absolutely not spun. It is made into a Parliamentary Answer. I heed the noble Lord’s words, however, and I will certainly take them back to all departments.
The Information Commissioner has ruled that PhonepayPlus, the body which regulates premium rate phone-paid services in the UK on behalf of OFCOM, is a public authority for the purposes of the Environmental Information Regulations because it carries out functions of public administration (regulation 2(2)(c)).
he [the Commissioner] believes that the decisive factors in this case are that it has Regulatory powers…, carries out its statutory duties and if it was not there then the government would be highly likely to task another organisation with the same powers…In addition the government provides considerable oversight and control to enable PhonepayPlus to perform regulatory functions on behalf of the government department.
Decision Notice FER0265609 is here.
Press release
7 Jan 2010
The Information Commissioner’s Office (ICO) has decided that it is in the public interest to disclose details about the methods used to restrain children and young people in secure training centres. The restraint methods include so-called distraction techniques which can involve deliberately inflicting pain on children.
Given the level of debate and controversy surrounding the use of physical restraint, on both legal and ethical grounds, and the evidence that these techniques can result in physical harm, the Assistant Information Commissioner, Gerrard Tracey, decided there is a significant public interest in releasing the manual in full.
Full ICO press release.
ICO decision notice FS50173181 Youth Justice Board for England and Wales
See also ‘Release of secret child punishment manual ordered’, The Guardian 10/1/2010
In the Justice Committee evidence session on Tuesday 5 January, the Information Commissioner outlined the progress that has been made in clearing the backlog of FOI complaints:
Christopher Graham: Over the past 6 months, we’ve put great priority on clearing the backlog and the figures are actually more encouraging than the figures that the minister quoted in the debate [adjournment debate] simply because things have accelerated like a train so the latest figures are better. If I can help the Committee, despite the fact that receipts of appeals to the Information Commissioner’s Office are markedly up over the same period last year, in the period April to December 2009 compared to 2008 we’ve had a 21% increase in business, at the same time we’ve had a 43% increase in closures…We have already closed more cases in the first 9 months of the financial year, than in the whole of 2008-2009. Overall, since April, our caseload has dropped by 30% and the cases over a year old are now down by 52%. The very old cases, which is what we prioritise to get rid of, those cases over 2 years old are down by 70% and when perhaps later on I’m able to come and talk about our annual report, I think I will have an even more encouraging picture. I won’t say it’s satisfactory we’re in the position we’re in but we are making great strides in clearing the backlog, which I said to the Committee was a priority because, if you remember, I said unless we can demonstrate that we’re an effective body, we won’t be listened to on any other issue.
Chairman: In a letter you sent to me you indicated that, of course, some of the problems aren’t caused by your office they’re caused by repeatedly having to go back to government departments to get the information but there’s a more robust attitude and I paraphrase slightly to that process might assist in speeding up the outcomes. Have you had any success in indicating to departments they’ve got to get a move on?
Christopher Graham: Yes, I think public authorities in general have got the message that the ICO is speeding up and we’re onto the case. I give you an example of a decision notice we took about land acquisitions for the olympics. The London Development Agency understood from us that unless they could answer our questions and put up their best case, we would take a decision on the information we had to hand and that’s what we did and that message gets across. I’ve been invited to address permanent secretaries at Sir Gus O’Donnell’s meeting on 20 January and the message I will be putting is that we’re generally being a tougher partner to deal with. And as we wire through the backlog, we are getting onto cases more quickly, the message I think will get across and we should be able to speed up generally. But it’s very important to recognise that it’s not just whether the Information Commissioner’s Office is getting through the work, it’s whether the public authorities are responding promptly enough either in the first place to Freedom of Information enquiries or to our enquiries in the course of an investigation.
You can listen to the evidence in full here.
A round-up of some of the media coverage of the 5th anniversary of the FOI acts coming into force.
Freedom of Information Act revelations recalled – The Journal 6/1/10
An Act designed to encourage transparency – The Journal 6/1/10
Freedom of Information: caught in the act – The Guardian 4/1/10
Freedom of Information: let the sunshine in – The Guardian editorial 30/12/09
Commons tops information shame league – FT 30/12/09
Scotland
Openness is always the best policy – The Press and Journal 5/1/10
Data law’s fifth year marked – Dundee Courier 5/1/10
The FoI rulings that left a mark on public life – The Herald 4/1/10 includes a video interview with Scottish Information Commissioner Kevin Dunion
Let’s be clear on transparency – The Herald 4/1/10
Trusts targetted by data freedom chief – The Herald 3/1/10
Ecosse interview: Kevin Dunion – The Sunday Times 3/1/10
The Information Commissioner has laid a report to Parliament on the government’s veto of the Commissioner’s Decision Notice ordering disclosure of minutes from a Cabinet Sub-Committee on Devolution.
7.4 Further to his press statement and letter to the Secretary of State, the Commissioner particularly regrets that the exercise of the veto prior to the full hearing of the appeal before the Tribunal meant that the issues in dispute were not put to the Tribunal for a consideration which would, in part, have been conducted in closed session. The Commissioner notes that, notwithstanding the criticisms in relation to paragraph 29 of his Decision Notice which were contained in the Secretary of State for Justice’s statement of reasons, these were issues which the Commissioner had conceded as early in proceedings as his response. Given that concession, the Tribunal might have varied the original Decision Notice in any event.
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7.6 Had the case been permitted to proceed to a full hearing of the appeal, the arguments both for and against disclosure would have been rehearsed fully (albeit in closed session) before an impartial Tribunal comprising of a legally qualified Chair and two experienced lay members. As already noted, that panel might have concluded that, to a greater or lesser extent, Commissioner’s findings were flawed and might have substituted the Decision Notice. In the Commissioner’s view, that is precisely the function of the Tribunal.7.8 The Commissioner is perturbed by the “blanket” nature of the exercise of the veto in the present case. Whilst acknowledging the importance of the constitutional convention which the Secretary of State for Justice seeks to protect, it seems to the Commissioner that a considered review of the 1997 Minutes as part of the appeal process might have resulted in the disclosure of some, or portions of some of the 1997 minutes in redacted form. The Commissioner considers that the convention of collective Cabinet Responsibility could only justify such a blanket refusal if all Cabinet papers were absolutely exempt from disclosure under the Act. However, that is not how the Act is drafted.
7.9 The Commissioner is aware that consideration is being given within government to amendments to legislation that would afford greater protection to certain categories of material including ‘Cabinet papers’. A decision on this and related matters is awaited. TheCommissioner is clear that until such time as any such proposal is enacted each case must continue to be considered on its own merits under the current legislation which, in any event, cannot be retrospective in its application.
7.10 It was the previous Commissioner’s expressed view at the time that the veto was exercised for the first time in February 2009 that it was vital that a ministerial certificate should only be issued under section 53 of the Act in exceptional cases. At that point he was concerned that any greater use of such certificates would threaten to undermine much of the progress made towards greater openness and transparency in government since the Act came into force. The Commissioner agrees strongly with this view and, for this reason, would be very concerned to see the exceptional become the routine.
ICO press release
22 Dec 2009
Christopher Graham, the Information Commissioner, has used his powers to secure improvements in the way two public bodies conduct internal reviews under the Freedom of Information Act. In line with the Information Commissioner’s enforcement strategy, Christopher Graham has issued practice recommendations to the UK Border Agency (UKBA) and Cardiff County Council. Both authorities have repeatedly failed to comply with the timescales for responding to requests for internal reviews set out in the Code of Practice and the Commissioner’s guidance.
The Information Commissioner has issued a practice recommendation to Cardiff County Council after it repeatedly failed to conduct internal reviews promptly. The Information Commissioner’s Office (ICO) found evidence which showed a number of internal reviews appeared incomplete despite being open for over two years. The recommended period of time for completing an internal review is 20 working days or 40 days in exceptional cases. In no instance should the time taken to conduct a review exceed 40 working days.
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The Information Commissioner has also issued a practice recommendation to UKBA after it failed numerous times to conduct internal reviews. Following complaints to the ICO, UKBA confirmed that during the period 21 January 2007 to 21 July 2008, only 17 of 46 internal review decisions had been completed within 40 working days. During the period of 1 August 2008 to 31 January 2009 only 10% were completed within 20 working days and 57% of reviews took in excess of 40 working days to complete. Prior to serving this practice recommendation the ICO monitored UKBA’s handling of internal reviews. Despite some progress, UKBA has still been failing to meet the Information Commissioner’s recommended targets.
ICO press release here.
Cardiff County Council practice recommendation here.
UK Border Agency practice recommendation here.
The Independent
21 Dec 2009
Secret correspondence between the Government and Buckingham Palace concerning the growing public cost of the Royal Family is to be released to The Independent after three years of campaigning.
In a far-reaching ruling, the Government must disclose more than 100 letters and memos written by ministers and members of the Royal Household during negotiations over public subsidies paid to the Queen for the upkeep of her palaces.
The Information Commissioner’s decision deals a severe blow to the Royal Family’s efforts to ensure correspondence between the Palace and the Government is not caught by the public’s right-to-know law. Royal aides warned ministers that they did not want the letters disclosed to The Independent.
Secret correspondence between the Government and Buckingham Palace concerning the growing public cost of the Royal Family is to be released to The Independent after three years of campaigning.
In a far-reaching ruling, the Government must disclose more than 100 letters and memos written by ministers and members of the Royal Household during negotiations over public subsidies paid to the Queen for the upkeep of her palaces.
The Information Commissioner’s decision deals a severe blow to the Royal Family’s efforts to ensure correspondence between the Palace and the Government is not caught by the public’s right-to-know law. Royal aides warned ministers that they did not want the letters disclosed to The Independent.