Category: Freedom of Information

Revised S.45 Code of Practice under FOI

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GDPR has taken the limelight from other information governance legislation especially Freedom of Information.  In July 2018, the Cabinet Office published a new code of practice under section 45 of the Freedom of Information Act 2000(FOI) replacing the previous version.

In July 2015 the Independent Commission on Freedom of Information was established by the Cabinet Office to examine the Act’s operation. The Commission concluded that the Act was working well. It did though make twenty-one recommendations to enhance the Act and further the aims of transparency and openness. The government agreed to update the S.45 Code of Practice following a consultation exercise in November 2017.

The revised code provides new, updated or expanded guidance on a variety of issues, including:

  • Transparency about public authorities’ FOI performance and senior pay and benefits, to mandate the FOI Commission recommendations for greater openness in both areas.
  • The handling of vexatious and repeated requests. The FOI Commission specifically recommended the inclusion of guidance on vexatious requests.
  • Fundamental principles of FOI not previously included in the code, e.g. general principles about how to define “information” and that which is “held” for the purposes of the Act.

In the latter section the code makes a number of interesting points:

  • Information disclosed as part of “routine business” is not an FOI request. Section 8of the Act sets out the definition of a valid FOI request. Judge for yourself if this advice is accurate.
  • Information that has been deleted but remains on back-ups is not held. This goes against a Tribunal Decision as well as ICO guidance.
  • Requests for information made in a foreign language are not valid FOI requests. Again refer to section 8 above. It does not say a request has to be in English!

The code is not law but the Information Commissioner can issue Practice Recommendations where she considers that public authorities have not complied with it. The Commissioner can also refer to non -compliance with the code in Decision and Enforcement Notices.

As well as giving more guidance on advice and assistance, costs, vexatious requests and consultation, the code places new “burdens”:

  • Public authorities should produce a guide to their Publication Scheme including a schedule of fees.
  • Those authorities with over 100 Full Time Equivalent (FTE) employees should publish details of their performance on handling FOI requests on a quarterly basis.
  • Pay, expenses and benefits of the senior staff at director level and equivalents should be published quarterly. Of course local authorities are already required to publish some of this information by the Local Government Transparency Code.
  • The public interest test extension to the time limit for responding to an FOI request (see S.10(3)) should normally be no more than 20 working days.
  • Internal reviews should normally be completed within 20 working days.

Furthermore, the other S.45 Code covering datasets has been merged with the main section 45 Code so that statutory guidance under section 45 can be found in one place. There is also an annex explaining the link between the FOI dataset provisions and the Re-use of Public Sector Information Regulations 2015.

Public authorities need to consider the new code carefully and change their FOI compliance procedures accordingly.

We will be discussing this and other recent FOI developments in our forthcoming FOI Update webinar.

Freedom of Information: New Draft S.45 Code of Practice

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Amongst all the hype about GDPR it is easy to miss developments in other areas of information law.  In November 2017, the Cabinet Office published the revised code of practice (under section 45 of the Freedom of Information Act 2000) for consultation.

In July 2015 the Independent Commission on Freedom of Information was established by the Cabinet Office to examine FOI’s operation. In its report the Commission concluded that FOI was working well. It did though make twenty-one recommendations to enhance the Act and further the aims of transparency and openness.

In its response to the Commission’s report, the government agreed to update the S.45 Code of Practice. The draft code provides new, updated or expanded guidance on a variety of issues, including:

  • Transparency about public authorities’ FOI performance and senior pay and benefits, to mandate FOI Commission recommendations for greater openness in both areas.
  • The handling of vexatious and repeated requests. The FOI Commission specifically recommended the inclusion of guidance on vexatious requests.
  • Fundamental principles of FOI not currently included in the Code, e.g. generalprinciples about how to define “information” and that which is “held” for the purposes of the Act.

The code is not law but the Information Commissioner can issue Practice Recommendations where she considers that public authorities have not complied with the guidance set out in this Code. The Commissioner can also refer to non -compliance with the Code in Decision and Enforcement Notices.

As well as giving more guidance on advice ad assistance, costs, vexatious requests and consultation the code places new “burdens” on public authorities including the following:

  • Public authorities should produce a guide to their Publication Scheme.
  • Those authorities with over 100 Full Time Equivalent (FTE) employees should, as a matter of best practice, publish details of their performance on handling FOI requests.
  • Pay (salaries over £90,000), expenses and benefits of senior staff at director level and equivalents should be published at regular intervals. Of course local authorities are already required to publish some of this information by the Local Government Transparency Code.

  • The public interest test extension to the time limit for responding to an FOI request should normally be no more than 20 working days.
  • Internal reviews should normally be completed within 20 working days.

Furthermore, the other S.45 Code covering datasets will be merged with the main section 45 Code so that statutory guidance under section 45 can be found in one place. There will also be an annex explaining the link between the FOI dataset provisions and the Re-use of Public Sector Information Regulations 2015.

Public authorities need to consider the draft code carefully and decide whether the additional obligations are workable given pressures on resources, especially due to GDPR’s pending implementation.

The deadline for consultation responses is 2nd February 2018.

 

We will be discussing this and other recent FOI decisions in our forthcoming FOI workshops and webinars. For those wanting an internationally recognised qualification the BCS Certificate in Freedom of Information  starts in February 2018 in Manchester and London.

Scottish Information Commissioner’s Annual Report 2016/17

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Last month, Margaret Keyse, the Acting Scottish Information Commissioner, published her annual report for 2016/17.  Amongst other laws, Ms Keyse enforces the Freedom of Information (Scotland) Act 2002 (FOISA).

The report reveals that during 2016/17:

  • Public awareness of FOISA remained at its highest ever level, at 85%.
  • The Office of the Scottish Information Commissioner (OSIC) met or exceeded most of its investigation performance targets (10 out of 12).
  • It issued its first ever Enforcement Notices.
  • It carried out 15 level 4 interventions with authorities to address practice concerns.
  • It launched an online appeal service, making it possible for requestors to make appeals online, and receive real-time help and advice, at any time of day.
  • It responded to its 20,000th enquiry since 2005.

Act Now has a full programme of FOISA workshops in Scotland. If you are new to FOI in Scotland or want to boost your career through gaining a qualification, our FOISA Practitioner Certificate is ideal. The four day course is endorsed by the Centre for FOI ,based at Dundee University.

The next course starts in Edinburgh in February 2018. If you’re considering enrolling on the course, what can you expect? Read a successful candidate’s observations.

Councillors, council tax arrears and FOI

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Some council chiefs, as well as some councillors, do not like the Freedom of Information Act 2000(FOI) claiming, amongst other things, that it costs too much and is used to request trivial information. Against this backdrop, how do council FOI officers deal with requests (often from journalists) for the names of councillors who are in arrears or have defaulted on their council tax bills?

Some councils have refused such requests citing the section 40(2) exemption for third party personal data. For this exemption to be engaged a public authority must show that disclosure of the name(s) would breach one of the Data Protection Principles. Most cases in this area focus on First Principle and so public authorities have to ask, would disclosure be fair and lawful? They also have to justify the disclosure by reference to one of the conditions in Schedule 2 of the DPA (as well as Schedule 3  in the case of sensitive personal data). In the absence of consent, most authorities end up considering whether disclosure is necessary for the applicant to pursue a legitimate interest and, even if it is, whether the disclosure is unwarranted due to the harm caused to the subject(s) (condition 6 of Schedule 2)? Of course when the new General Data Protection Regulation (GDPR) comes into force on 25th May 2018 the disclosure of the data will have to be justified by reference to Article 6 of GDPR.

A 2016 Upper Tribunal decision sheds light on this difficult issue. Haslam v Information Commissioner and Bolton Council [2016] UKUT 0139 (AAC) (10 March 2016) concerned a request by a journalist (Mr Haslam) for disclosure of information about councillors who had received reminders for non-payment of council tax since May 2011.  The Council told the appellant that there were six such councillors and informed him which political party they were members of, how much had been owed, how much was outstanding, and that two had been summoned to court.  The Appellant asked for the names of the individual councillors.  The Council refused stating that the names were exempt from disclosure under section 40(2) FOI.  The Appellant appealed to the First-tier Tribunal, against the decision of the Information Commissioner to uphold the Refusal Notice, in relation to the two councillors who had been summoned to court. The First-tier Tribunal dismissed the appeal.  Subsequently one councillor voluntarily identified himself, so that there was only an issue regarding one councillor before the Upper Tribunal.

The Upper Tribunal allowed the appeal concluding that releasing the name would not contravene the data protection principles, because processing was necessary for the purposes of legitimate interests pursued by the Appellant, and was not unwarranted because of prejudice to the councillor’s rights/legitimate interests.  This was a public matter in which the councilor could not have a reasonable expectation of privacy. Judge Markus in her judgment said:

“40. But, in the case of a councillor, it is not only a private matter. A councillor is a public official with public responsibilities to which non-payment of council tax is directly and significantly relevant.  A number of specific features of this were advanced in submissions to the First-tier Tribunal.  In particular, section 106 of the Local Government Finance Act 1992 bars a councillor from voting on the Council’s budget if he or she has an outstanding council tax debt of over two months.  If a councillor is present at any meeting at which relevant matters are discussed, he or she must disclose that section 106 applies and may not vote.  Failure to comply is a criminal offence. Thus council tax default strikes at the heart of the performance of a councillor’s functions. It is evident that setting the council’s budget is one of the most important roles undertaken by councillors.  The loss of one vote could make a fundamental difference to the outcome. This adds a significant public dimension to the non-payment of council tax.  The very fact that Parliament has legislated in this way reflects the connection between non-payment and the councillor’s public functions.  Moreover, as the Commissioner observed in his decision notice, recent failure to pay council tax is likely to impact on public perceptions and confidence in a councillor as a public figure.

  1. These factors are of critical relevance to expectation.  As the Commissioner  had observed, those who have taken public office should expect to be subject to a higher degree of scrutiny and that information which impinges on their public office might be disclosed.  More specifically, unless the local electorate know the identity of a councillor to whom section 106 applies, they cannot discover that that councillor is failing to fulfil his functions.  Nor can they know that the process of declarations under section 106 is being adhered to. In addition the electorate may wish to know whether they can trust a councillor properly to discharge his functions if he stands for office again.” 

So there we have it. Councillors can normally expect to have their names disclosed if they default on council tax. However this is not an absolute rule. In the words of Judge Markus (at paragraph 56):

“There may be exceptional cases in which the personal circumstances of a councillor are so compelling that a councillor should be protected from such exposure.”

The Bolton News, where the Appellant works, finally named the councillor who is the subject of this case (Click here if interested). By the way, I may share a name with him but I can assure you that I am up to date with my council tax bill payments!

We will be discussing this and other recent FOI decisions in our forthcoming FOI workshops and webinars.

How would you do on the BCS Certificate in Freedom of Information exam? Have a go at our test.

New Local Government Transparency Code Consultation

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The Local Government Transparency Code is due to be updated once again to require local authorities to proactively publish even more information. The Department for Communities and Local Government is consulting on proposals to require councils to publish:

  • more information about land and property assets they hold on the Government’s electronic Property Information Management System
  • existing procurement publication in particular forms
  • the costs of “in-house” service contracts above £500k
  • greater detail about parking charges as well as statistics about the enforcement of parking restrictions
  • information about dealings with small and medium-sized enterprises
  • all information under the Code through a single website landing page

The Code is made under Section 3 of the Local Government, Planning and Land Act 1980 which gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities in England (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) relating to the discharge of their functions.

In February 2015 the code was re issued to require local authorities to publish information about their social housing stock.  Smaller councils, including parish councils have to comply with the Transparency Code for Smaller Authorities, which was published in December 2014.

The consultation began on 12th May 2016. All responses should be received by no later than 8th July 2016.

Give your career a boost by gaining an internationally recognised qualification in FOI. No time/budget to attend courses? Keep up to date with all the latest FOI decisions by viewing our live one-hour web seminars. 

New IRMS Certificate in Information Governance

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Today, the Information and Records Management Society (IRMS) and Act Now Training launched the IRMS Foundation Certificate in Information Governance. This represents the first fully online certificated course covering data protection, freedom of information and records management.

In difficult economic times, traditional face-to-face learning is often the first activity to fall victim of budget cuts. However the area of Information Governance is currently the subject of rapid change. After four years of negotiation, the new EU General Data Protection Regulation (GDPR) has now been formally adopted by the European Parliament and will come into force on 25th May 2018.  The FOI Commission’s report, published in March, will lead to additional obligations for public authorities under the Freedom of Information Act. And the list goes on…

Employees and managers, both in the public and private sector, need timely and cost effective IG training.  The IRMS Foundation Certificate in Information Governance is the solution. This is an online certificated course designed for information management professionals who need to know about the basics of information rights and information management in their job role. It is an ideal starter qualification for those who wish to then progress to more advanced qualifications such as the as our Practitioner Certificate In Data Protection and the BCS FOI and DP Certificates.

Launched at the 2016 IRMS conference in Brighton, the IRMS Foundation Certificate in Information Governance is a fully online yet interactive course. There are four learning modules (Records Management, Security and Information Assurance, Data Protection and Freedom of Information). Using the latest web based technology, delegates will be able to learn from the comfort of their own desk by attending four live online webinars. In addition they will be able to tailor their learning through doing four recorded modules from a choice of six. Finally they will do a short online assessment to achieve the certificate endorsed by the excellent reputation of the IRMS.

Ibrahim Hasan, Director of Act Now Training, has developed the course with IRMS colleagues. He said:

“I am really pleased to have been involved with the development of this ground breaking new online qualification. I have used my experience in delivering Information Governance training for many years to help create a product which will hopefully meet a previously unmet demand amongst Information Management professionals.”

Meic Pierce Owen, the Chair of the IRMS said:

“I am genuinely proud to have overseen the development of this important qualification that offers all information professionals the opportunity to gain a solid grounding in contemporary Information Governance (IG). This qualification has relevance across all sectors and is equally valid for those looking to master the basics of contemporary IG as it is for those looking to progress to practitioner level study.

As a generalist practitioner who qualified from University just ahead of Data Protection, Freedom of Information and Information Security being covered in any detail on the courses, I am also delighted to put my money where my mouth is and be the first to sign up to study for this qualification- which I believe to be relevant to my CPD as well as being excellent value for money. I shall let you know how I get on…”

If you would like to know more about this exciting new course please visit us at the IRMS stand at the Brighton conference. See also our dedicated IRMS Certificate webpages or get in touch.

Be an Information Superhero and gain a Superhero Qualification!

 

 

Freedom of Information Commission Report

 

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The Independent Commission on Freedom of Information was established by the Cabinet Office in July last year to examine the operation of the Freedom of Information Act 2000 (FOI) and whether it required any changes. In October I predicted (and I was not alone) that, bearing in mind the Commission’s restricted terms of reference as well the track record of some of its members, it was likely that sweeping restrictions would be made to the UK’s FOI regime.

Thankfully it seems that the Commission has seen sense. Its recent report says FOI is working well and does not need major changes. It does though make twenty-one recommendations, many of which would enhance the Act:

1. A time limit for public interest extensions

That the government legislates to amend section 10(3) to abolish the public interest test extension to the time limit, and replace it instead with a time limit extension for requests where the public authority reasonably believes that it will be impracticable to respond to the request on time because of the complexity or volume of the requested information, or the need to consult third parties who may be affected by the release of the requested information. This time limit extension will be limited to an additional 20 working days only.

2. A time limit for internal reviews

That the government legislates to impose a statutory time limit for internal reviews of 20 working days.

3. Change to Section 77

That the government legislates to make the offence at section 77 of the Act triable either-way.

4. FOI statistics

That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish statistics on their compliance under the Act. The publication of these statistics should be co-ordinated by a central body, such as a department or the Information Commissioner (IC).

5. FOI disclosure logs

That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish all requests and responses where they provide information to a requestor. This should be done as soon as the information is given out wherever practicable.

All the above were also recommended by the Justice Select Committee in its Report into Post-Legislative Scrutiny of the Freedom of Information Act 2000 published in July 2012. All were rejected by the Government in its response to that report.

This time, in the Government’s response to the FOI Commission, Mike Hancock MP has said that the Government will issue a revised S.45 Code of Practice setting out what information public authorities with more than 100 full time employees should publish.

6. Senior employees’ information

Public bodies should be required to publish in their annual statement of accounts a breakdown of the benefits in kind and expenses of senior employees by reference to clear categories.

Local authorities already have these obligations in relation to senior staff earning more than £50,000 by virtue of the Local Government Transparency Code.

7: Information Commissioner responsibilities

The government should give the IC (Information Commissioner) responsibility for monitoring and ensuring public authorities’ compliance with their proactive publication obligations.

8. Section 35(1)(a) – Formulation of government policy

The government should legislate to replace section 35(1)(a) with an exemption which will protect information which would disclose internal communications that relate to government policy.

9. Section 35(1)(b) – Ministerial communications

The government should legislate to expand section 35(1)(b) so that, as well as protecting inter-ministerial communications, it protects any information that relates to collective Cabinet decision-making, and repeal section 36(2)(a).

10. Section 35 – Public interest

The government should legislate to amend section 35 to make clear that, in making a public interest determination under section 35(1)(a), the public interest in maintaining the exemption is not lessened merely because a decision has been taken in the matter.

11. Section 35 – Public interest (2)

The government should legislate to amend section 35 to make clear that, in making a public interest determination under section 35, regard shall be had to the particular public interest in the maintenance of the convention of the collective responsibility of Ministers of the Crown, and the need for the free and frank exchange of views or advice for the purposes of deliberation.

The above 4 recommendations are clearly designed to make it easier for the Government (and the National Assembly for Wales) to withhold information. Other bodies cannot claim this exemption anyway.

12. Section 36 – The Qualified Person’s opinion

The government should legislate to amend section 36 to remove the requirement for the reasonable opinion of a qualified person.

Some of our clients have welcomed this recommendation citing the difficulty of getting access to senior officers to make a decision about complex FOI matters.

13. The ministerial veto

The government should legislate to put beyond doubt that it has the power to exercise a veto over the release of information under the Act.

14. The veto again

The government should legislate to make clear that the power to veto is to be exercised where the accountable person takes a different view of the public interest in disclosure. This should include the ability of the accountable person to form their own opinions as to as to all the facts and circumstances of the case, including the nature and extent of any potential benefits, damage and risks arising out of the communication of the information, and of the requirements of the public interest.

15. And again…

The government should legislate so that the executive veto is available only to overturn a decision of the IC where the accountable person takes a different view of the public interest in disclosure. Where a veto is exercised, appeal rights would fall away and a challenge to the exercise of the veto would be by way of judicial review to the High Court. The government should consider whether the amended veto should make clear that the fact that the government could choose to appeal instead of issuing a veto will not be a relevant factor in determining the lawfulness of an exercise of the veto. Until legislation can be enacted, the government should only exercise the veto to overturn a decision of the IC.

16. Guess what this recommendation is about?

The government should legislate to allow the veto to confirm a decision of the IC where the IC upholds a decision of a pubic authority on the public interest in release. This would mean that the right of appeal would fall away and challenge would be instead by way of judicial review.

Strengthening the ministerial veto under section 53 seemed to be a “dead cert” (in betting parlance). In March 2015, the Guardian’s successful challenge to the application of the veto to the disclosure of Prince Charles’ letters to government departments, was confirmed by the Supreme Court. The Government seems to have accepted the Commission’s recommendations for the time being:

“In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.”

17. Appeal rights

That the government legislates to remove the right of appeal to the First-tier Tribunal against decisions of the IC made in respect of the Act. Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal. The Upper Tribunal appeal is not intended to replicate the full-merits appeal that currently exists before the IC and First-tier Tribunal, but is limited to a point of law.

Whilst this recommendation will save public authorities money, some commentators (especially journalists) have expressed concern that it hampers appeal rights and makes the appeal mechanism much less accessible than at present to those who do not have the money to instruct lawyers. They have a point; especially when one considers the very real possibility of the government introducing fees for tribunal appeals.

18. Format of responses

That the government legislates to clarify section 11(1)(a) and (c) of the Act so that it is clear that requestors can request information, or a digest or summary of information, be provided in a hard copy printed form, an electronic form, or orally. Where a requestor specifies a specific electronic document format, that request should be granted if the public authority already holds the information in that format, or if it can readily convert it into that format. Where the information requested is a dataset, the requirements at section 11(1A) will apply. The legislation should make clear that the obligations on public authorities to provide information in a particular format extend no further than this.

In my view this is already clear in the legislation and in ICO guidance.

19. The Section 45 code

That the government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate. The government should also review and update the Code to take account of the ten years of operation of the Act’s information access scheme.

20. Vexatious requests

That the government provides guidance, in a revised Code of Practice issued under section 45, encouraging public authorities to use section 14(1) in appropriate cases.

21. More money for the ICO

That the government reviews whether the amount of funding provided to the IC for delivering his functions under the Act is adequate, taking into account the recommendations in this report and the wider circumstances.

Much of the above can be implemented without the need for legislation through a revised/additional Section 45 code of practice and guidance. It’s worth remember that the new EU General Data Protection Regulation (GDPR) will also require changes to FOI when it comes into force in 2018; specifically section 40 which make reference to the Data Protection Act 1998 (which the GDPR will replace).

Labour’s Tom Watson has claimed that the FOI Commission was a waste of time and money and has called on the government to publish its costs. If they don’t he will, no doubt, make an FOI request to the Cabinet Office!

We will be discussing this and other recent FOI decisions in our forthcoming FOI workshops and webinars. For those wanting an internationally recognised qualification the BCS Certificate in Freedom of Information starts on 13th April.

Public Health Funerals, Heir Hunters and Freedom of Information

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Local authorities are seeing a substantial increase in the number of Freedom of Information (FOI) requests from heir tracing companies for information about those who have had public health funerals. Recent appeal decisions from the Information Commissioner’s Office (ICO) may help to stem the tide.

UK intestacy law states that when someone dies with no will or known family, everything they own passes to the Crown as ownerless property (or ‘Bona Vacantia’). This includes their house, money and personal possessions. Companies who find missing heirs are in a very lucrative business (watch “Heir Hunters” on the BBC). Some require beneficiaries to enter into an agreement to share up to 40% of their inheritance.

In England and Wales, the Bona Vacantia Division (BVD) of the Treasury Solicitor’s Department is responsible for dealing with bona vacantia assets. Everyday BVD publishes an Unclaimed Asset List setting out unclaimed estates which have been recently referred, but not yet administered, and historic cases which have not yet been claimed by entitled relatives. Included in the list is the deceased name, area of death, marital status, place of birth and local authority informant. Sometimes other details will be given (if known) such as spouse’s name, place of marriage and nationality. The list is updated every working day and newly advertised estates appear at the top of the list.

This list is a good starting point for probate researchers but the competition to trace beneficiaries is very fierce and often a number of companies will be trying to trace the same person. That is why such companies often make FOI requests to councils to try and get hold of the information before any of it is passed on to the BVD to publish. If they can identify deceased individuals who may have left a substantial estate, they will have a head start (in tracing the beneficiaries) against their rivals who will not yet be privy to such information.

Many councils have chosen to put a lot of this information on their website; Redbridge, Northampton, Knowsley to name a few. This then allows them to claim the exemption under section 21 of FOI (information is reasonably accessible by other means). Often though the researchers want more than the basic information, which is published by councils.

Of course, where the requested information has been disclosed to the BVD (or is about to be disclosed) and it will appear on the published BVD list, it is open to the council to claim the exemption under section 22 (information intended for future publication). It does not matter that the council will not be publishing the information itself as long as there is a settled intention to publish it on the part of another (in this case the BVD). Section 22 is a qualified exemption and so subject to the public interest test.

Where the information requested by probate researchers is not published, many councils have claimed the exemption in section 31 arguing that disclosure would prejudice the prevention of crime. Some recent ICO appeal decisions lend support to this approach. In a decision involving Barnsley Metropolitan Borough Council (FS50586033) the complainant requested, amongst other things, details of deceased people who had had public health funerals (including names, last known address, date of birth, date of death, date of funeral, and whether the case has been/will be/or even might be referred to the Treasury Solicitor).

The ICO agreed with the council that section 31 applied and it was not in the public interest to disclose the information. Release of personal details of a deceased individual with no known relatives, and no will, may make the assets of that person vulnerable. The assets of the deceased need to be secured and disclosure of the information may lead to the commission of offences (e.g. arson, identity theft etc.) and cause loss to the unsecured estates. In terms of the public interest the Commissioner states (paragraph 38):

“The Commissioner recognises that there is an inherently strong public interest in avoiding likely prejudice to the prevention of crime. The crime in this case would be likely to include a diverse range from anti-social behaviour, criminal damage, arson, organised groups stripping empty properties to identity fraud and the crimes that can be committed using false documents. The Commissioner accepts that tackling issues like these would involve significant public expense and believes it is in the public interest to protect property and to ensure that public resources are used efficiently. He also accepts that there is a strong public interest in avoiding personal distress to the direct victims of the crime and, in the case of crime related to empty properties, to those in the wider neighbourhood who may be affected.”

Similar decisions were made in complaints involving Birmingham City Council (FS50584670) and the London Borough of Bexley FS50583220. I have still not come across a First Tier Tribunal decision on such requests and so the exemptions, especially section 31, have yet to be comprehensively explored.

Some councils have argued that section 41 (Breach of Confidence) may apply to some of the information requested about the deceased. This can only be the case if the information has come from another party and is highly confidential. Section 41 is unlikely to apply to most requests from probate researchers. For a detailed discussion on access to information about the deceased under FOI, read my article and blog post.

Give your career a boost in 2016 by gaining an internationally recognised qualification in FOI. Keep up to date with all the latest FOI decisions by attending our live webinars and FOI workshops.

We don’t hold your data! (well… not for long anyway).

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Dear Sir or Madam:

I recently received a mailing from you.

I’d like you to send me a copy of the personal data you hold on me.

I am particularly interested in where you obtained my name and address from.

The numbers on your mailing are

8666U501J01101

XA4416175

I’d like you to explain what these mean.

Regards etc

Dear Mr xxxx

Thank you for your email. Firstly, we can confirm that we do not have any of your personal data on our records of any kind.

The recent Christmas appeal which you received, was sent out as part of our Christmas campaign. During this campaign, we purchased some contact details from a third party supplier for temporary use – these details are not stored on our database and are no longer in our possession.

In this instance, your details were selected for The Christmas Appeal – which also includes a Christmas appeal reminder which you are likely to receive in the next 2-3 weeks, and, unfortunately, as the mailings are selected far in advance, it is not currently possible to prevent this mailing from being sent. Please accept our sincere apologies for any inconvenience this may cause you. However, we confirm that we do not hold any of your data on our database.

The DM code you have listed below indicates that your details were temporarily given to us for a one-off use.

The XA code you supplied is your reference number is not stored on our own system in any way.

What a great reply! We don’t have any data on you; we did have a while ago to send you an unsolicited letter but it was only held temporarily and besides we bought it from someone else. We’ve checked the reference numbers you gave us even though we don’t have them on our systems.

 And we won’t be processing your data while we hang onto it for 2 to 3 weeks so we can send you a reminder about the unsolicited begging letter we just sent.

Am I the only person who finds this unacceptable? Or is this the norm for the charity sector?  Just for clarity the ICO says

“Processing in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data”

So that’s 3 processing operations at least – obtaining, mailing and holding. Maybe even destruction if in fact they do delete it. (Next Xmas will tell me this). The ICO doesn’t give an exemption for ‘temporarily” processing it.

When Christmas (the season of good cheer and peace to all data subjects) arrives, is it part of the festive spirit (or even lawful?!) to buy a wodge of names and addresses that you have no relationship with and then mail them two (count them) begging letters; and when someone makes a subject access request say, “We do not hold any data on you – we did last week but it’s disappeared. We might hold it again in a week or two but only for a short time and then it will disappear again.”

This organisation is a good organisation. I support their aims and like listening to their brass bands outside supermarkets in the run up to Christmas, but I find their marketing activities dubious. It may just affect my giving to them this year.

Freedom of Information: The Future

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Is the future bright for Freedom of Information?

In July the Commission on Freedom of Information was established by the Cabinet Office (which now has responsibility for FOI). Its terms of reference are:

“[To] review the Freedom of Information Act 2000 (‘the Act’) to consider whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice. The Commission may also consider the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information.”

The Commission will be chaired by Lord Burns, and will comprise the Rt Hon Jack Straw, Lord Howard of Lympne, Lord Carlile of Berriew and Dame Patricia Hodgson. The motivation/credentials of the panel members have been questioned by some who argue that they are establishment figures who are not interested in openness or transparency. Jack Straw, in particular, has previously called for FOI to be rewritten. The Commission’s, recently published, consultation paper does suggest that it is considering sweeping restrictions to the legislation. The questions seem to be based around the misconceptions that FOI is harming the decision making process and costing public authorities too much. (See Ben Worthy’s analysis in his excellent blog post.)The Commission will publish its findings by the end of November but here are my predictions.

Strengthening the ministerial veto under section 53 is a “dead cert” (in betting parlance). In March the Guardian’s successful challenge to the application of the veto to the disclosure of Prince Charles’ letters to government departments, was confirmed by the Supreme Court. Hours before publication of the letters, Downing Street said David Cameron would to try to build up a cross-party consensus with the aim of guaranteeing that ministers will be able to veto the publication of documents under FOI requests in exceptional circumstances.

It is also very likely that the FOI Fees Regulations will be amended to make it easier to refuse requests for information on costs grounds. In July 2012, the Justice Select Committee published its Report into Post-Legislative Scrutiny of the Freedom of Information Act 2000. The Committee concluded that FOI was working well. It had “contributed to a culture of greater openness across public authorities, particularly at central Government level” and “is a significant enhancement to our democracy… [It] gives the public, the media and other parties a right to access information about the way public institutions… are governed.”

The Committee recommended that consideration be given to reducing the amount of time an authority needs to take in searching for and compiling information:

“We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected.”

The Government, in its official response, said that it doubts that much will be achieved through the reduction of the costs limit. Though it was in favour of allowing additional factors to be taken into account in deciding whether the 18/24 hour cost limit has been reached:

“The Government does not share the assessment of the Committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.”

So whilst the Committee rejected the suggestion that reading, consideration and redaction time should also be taken into account when deciding whether the 18/24 hour limit has been reached, it could be that the Fees Regulations are amended to allow this.

At present the costs of different FOI requests can be aggregated only where the requests relate to the same or similar information and have been received within a 60 consecutive working day period. The Government may change this to make it even easier to aggregate costs. At paragraph 19 of its response, it stated:

“We will also look at addressing where one person or group of people’s use of FOIA to make unrelated requests to the same public authority is so frequent that it becomes inappropriately or disproportionately burdensome.”

According to the Telegraph an up front fee of up to £20 could be proposed for making an FOI request. This could lead to a large drop in requests as happened when Ireland introduced a €15 charge (which was eventually dropped).

Other matters on the table for discussion in the consultation paper include making it more difficult to obtain public authorities’ internal discussions (or excluding some from access altogether) and changing the way FOI is enforced. The case for strengthening the Act does not seem to be on the Commission’s agenda. The Campaign for Freedom of Information is coordinating the fight against possible restrictions to FOI. Over 140 media bodies, campaign groups and others have written to the Prime Minister.

In a separate move, the consultation paper and the impact assessment on tribunal fees were recently published on the Ministry of Justice website. The deadline for responses ended on 15th September. In future it could cost £100 to appeal, against an Information Commissioner Decision Notice, to the First Tier Tribunal (Information Rights) or the Upper Tribunal (if the case is transferred), and £500 for an oral hearing.

Tribunal fees will have a big impact on the number of challenges to public authority decisions. Overworked FOI Officers may initially see cause for celebration. However, if fewer appeals are heard the quality of FOI case-law on important matters of interpretation will suffer. Consequently application of the FOI exemptions, as well as other provisions, will become more difficult.

Interesting times for FOI Officers (and trainers!).

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops  which are delivered in online sessions and at his public courses.