Daily Telegraph
20 Dec 2009

Mr Graham said he would take a “fierce” approach to overly-secretive authorities. He warned that some public bodies were still “dragging their feet” in complying with the Freedom of Information Act, and said that even Cabinet minutes should not routinely have their release blocked.

In a recent unpublicised case, Mr Graham broke new ground when he threatened a public body, the London Development Agency, with contempt of court proceedings for failing to disclose information under an FOI request. “This will send a shock-wave through the system,” he said.

In his first newspaper interview, to mark his first six months in the job, Mr Graham told The Sunday Telegraph: “Shining the spotlight of publicity across a public service is how you find out where money is being wasted.”
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“I think [in the past} the Information Commissioner’s Office [ICO] has not been alert enough and fierce enough with public authorities that do not comply with their requirements under the Freedom of Information [FOI] Act,” he said.

“After five years, public authorities should be able to do better. From now on, we will be a rather tougher partner. We will insist on adequate responses within the time limits. I will be up for issuing what are known as ‘information notices’ [which compel public authorities to supply information to the ICO or they will have committed a criminal offence]. We have not really done this so far but we will from now on.”

The Information Commissioner has also sent a firm message to Jack Straw, the Justice Secretary, that he should not routinely veto the release of Cabinet minutes without good cause. This followed Mr Straw’s decisions to veto the release of documents relating to a devolution issue from 1997. “The point is that the [FOI] act does not say that all Cabinet papers should be vetoed. The veto is there only for exceptional circumstances,” Mr Graham said.

Full Telegraph article here.

To mark the 25th anniversary of the Campaign for Freedom of Information (it was launched in January 1984), the Campaign has published back issues of its Secrets newspaper which appeared between 1984 and 1993.

The newspapers, which may be of interest to anyone studying the history of freedom of information in the UK, start by describing the position of the party leaders at the time – Neil Kinnock, David Steel, David Owen and the then Prime Minister Margaret Thatcher. They document the secrecy problems that prompted demands for a FOI Act, the progress of various private members’ bills promoted by the Campaign, the causes celebre of the time such as the Ponting and Tisdall official secrets prosecutions and the Freedom of Information Awards given to public authorities which voluntarily opened their files to the public without being forced to do so.

Secrets newspaper archive – https://www.cfoi.org.uk/secrets.html

The Justice Committee has announced that it will hold the following oral evidence session:

Tuesday 5 January 2010 in the Wilson Room

1) Justice Issues in Europe

The Committee will hold its fourth evidence session on its inquiry Justice Issues in Europe.

At 4.15 pm: Mike Kennedy CBE, Chief Operating Officer, CPS
At 4.45 pm: Christopher Graham, Information Commissioner, and Stephen McCartney, Head of Data Protection promotion, Information Commissioner’s Office

2) Operation of the Ministerial FOI veto (Cabinet Minutes) and FOI caseload

The Information Commissioner will also give evidence on these topics.

The Information Tribunal has dispelled any remaining doubt over whether the cost of redacting exempt information can be taken into account by public authorities when estimating the costs of complying with a request.

This issue had been considered by the Tribunal in Jenkins v IC and Defra (EA/2006/0067), where it expressed the view that the time cost of redacting exempt information could not be counted for the purposes of the Fees Regulations. However, the Jenkins case was determined on the basis of other exemptions and, in any case, the Tribunal said that the issue was not free from doubt.

The Jenkins case was approved of in DBERR v ICO and FoE (EA/2007/0072), but DBERR did not rely on section 12 and and the Tribunal heard no submissions on it. Chief Constable of South Yorkshire Police and The Information Commissioner (EA/2009/0029) was therefore the first case where the time cost of redactions was the substantive issue and the Tribunal considered it in detail.

The Tribunal concluded:

Section 12 is a good administration constraint. It is a preliminary exercise limited to estimating the costs of the initial mechanical processing of the request for information. Insofar as sequencing is important to the arguments made in this appeal, making the cost estimate under section 12 (to scope the work entailed in order to weed out voluminous and excessively costly requests for information), precedes the separate and more focussed task of responding to those requests for information that fall within the cost limit.
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Second, the common thread running through the Allowable Tasks is that they are of an administrative nature. A public authority which is in receipt of a request has to determine whether it holds the information, it has to locate the information and then to retrieve or extract it. The relative ease with which a public authority can make an advance estimate of the potential costs involved in carrying out these non-judgemental tasks, contrasts markedly with the difficulty that is likely to be involved in estimating how long it would take to decide whether or not any of the exemptions in sections 21 to 44 of the Act apply to some or all of the information requested, and whether the exempt material could be edited so that some part of the information requested could be released.
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It is also clear from the time limits in the Fees Regulations (18 hours and 24 hours depending on the public authority), that if it covered the time cost of redactions, in addition to the tasks listed in regulation 4(3), many, if not most, requests involving exemptions, particularly multiple exemptions, could be refused. This too, in our view, could not have been the legislative intent.

The Information Commissioner’s Office has published the following new guidance:

Section 6 – Publicly owned companies (Version 1, 17 Decemember 2009)

Section 36 of the FOIA: What should be recorded when considering the exemption? (Version 1, 17 December 2009)

Rob Evans and Robert Booth
The Guardian 16 Dec 2009

Prince Charles was tonight facing fresh accusations of meddling in government policy after it emerged that he had written directly to ministers in eight Whitehall departments over the last three years.

The heir to the throne, who has strong views on the environment, farming and architecture, wrote to ministers in departments including the Treasury, Foreign and Commonwealth Office and the education department.

Documents obtained by the Guardian also reveal that his advisers pressed senior cabinet ministers to bring government policy into line with the prince’s beliefs on matters including hosp ital building and the design of ecotowns.

The disclosures will fuel growing concern that the prince is continuing to interfere in political matters when many believe he should remain neutral if he wishes to become king.

Leaks of previous correspondence, known among ministers as “black spider memos” because of the prince’s sprawling handwriting style, provoked a backlash among politicians furious that an unelected royal was meddling in the affairs of democratic government.

The fresh evidence of his lobbying was obtained using the Freedom of Information Act, although Whitehall departments refused to release the content of the letters. The Guardian has established that since 2006 Charles wrote to politicians leading eight government departments and his advisers wrote to five.

The departments released correspondence from senior aides who run his architectural charity to Hazel Blears, then secretary of state for communities. They show how his charity urged the government to adopt Charles’s favoured approach to the ecotowns initiative.

They also wrote to Patricia Hewitt, who was health secretary, to recommend that all hospital trusts planning new buildings should use the design technique pioneered by Charles’s architecture charity.

Separately they pressed Andy Burnham, chief secretary to the Treasury at the time, to consider the findings of a study into sustainable ways of increasing the housing supply “which provides support for the [prince’s] Foundation’s mission to promote timeless and ecological ways of planning, designing and building”.

Full article here.
See also How Prince of Wales’s aides tried to influence Labour ecotowns policy – The Guardian

The quarterly statistics bulletin on FOI implementation within central government have been published for the period July to September 2009.

Executive summary
Departments of State reported receiving 6,208 “non-routine” information requests during the third quarter of 2009 (Q3). Other monitored bodies received 4,389 requests. Across all monitored bodies, a total of 10,597 requests were received, of which 91 per cent had been processed at the time of monitoring. This includes 238 requests handled under the amended Environmental Information Regulations (EIRs) which came into force on 1 January 2005. [see Table 1]

The 10,597 requests across all monitored bodies received in the third quarter of 2009 is 20 per cent greater than the 8,825 received during the corresponding quarter of 2008. [see Table A]

During Q3 of 2009, 86 per cent of all monitored bodies’ requests (excluding those “on hold” or lapsed) were “in time”, in that they were processed within the statutory deadline* or were subject to a permitted deadline extension.

This figure is the same as in the previous quarter but slightly lower than in the corresponding quarter of 2008. [see Table 2 and Table B] Of all “resolvable” requests received during Q3 of 2009 (i.e. requests where it was possible to make a substantive decision on whether to release the information being sought), 55 per cent were granted in full, the same as in the previous quarter but slightly lower than in the corresponding quarter of 2008. [see Table 3 and Table C]

The figures show that Departments of State met the standard 20 working day deadline for 75% of requests, with the Ministry of Defence having the worst record at just 40% (a significant reduction on the 64% achieved in the preceding quarter). Other monitored bodies performed better, with the exception of the Serious Fraud Office, which answered only 38% of the comparatively small number of requests it received within the standard deadline.

The departments that withheld considerably more requests in full than the average were the Cabinet Office (51%) and Ministry of Justice (44%).

Gordon Prentice MP opened an adjournment debate on the time taken by the Information Commission to process Freedom of Information requests. The debate was replied to by Michael Wills, Minister of State at the Ministry of Justice.

Mr. Gordon Prentice (Pendle) (Lab): I am very grateful for this opportunity to raise the issue of the processing of freedom of information requests. This concerns the Information Commissioner and how freedom of information requests are dealt with, and it is a very sorry tale. The Information Commissioner enforces and oversees the Data Protection Act 1998, the Freedom of Information Act, the Environmental Information Regulations 2004 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. The span of responsibilities is very wide, but the Information Commissioner’s office is simply not coping. There are big issues to address in respect of how the Information Commissioner’s office is staffed, managed and resourced. Curiously, its funding comes from the Ministry of Justice, which also provides advice to all Departments on freedom of information cases and issues.

The Information Commissioner’s office has a huge backlog of hundreds of cases, which go back to 2005. I have in my hand a copy of the “case load snapshot” that the Information Commissioner published in September. It runs to about 30 closely typed pages, and about 30 to 40 cases are listed on each page. The system is just gumming up. Some of the requests seem fairly trivial. For example, information was requested about the names of individuals holding parliamentary passes from the Association of Former Members of Parliament and the Industry and Parliament Trust; that request goes back 16 months. A request relating to the use of pseudonyms by the Cabinet Office dates back 15 months; another, relating to the royalties paid to the estate of the composer of “Sailing By” on Radio 4 dates back a year. And so the list goes on, page after page.

Mr Prentice raised this issue before in the summer adjournment debate on 21 July 2009 (see earlier blog post). He has now asked Sir Alan Beith MP, who chairs the Justice Committee, to question the Commissioner about the delays.

You can watch a recording of the debate here or read it in Hansard here.