Category: Freedom of Information

Is the Freedom of Information Act ‘working effectively’?

Image by Kevan via Creative Commons

By Steven McGinty

In July, Parliamentary Secretary for the Cabinet Office, Lord Bridges, announced that there would be an independent cross-party review on Freedom of Information (FOI).

The UK’s FOI Act was introduced in 2000 (in Scotland, FOI legislation came into force in 2005). The Act requires public bodies to publish certain information about their activities and to respond to requests for information from the public.

Since its introduction, the FOI Act has facilitated the release of information from across government. The most high profile releases have involved MPs’ expenses and correspondence between British diplomats ridiculing the notion of a widespread increase in migration from Poland to the UK, once they joined the EU.

Lord Bridges explained that the review would focus on three main issues:

  • whether there is an appropriate balance between having a transparent and accountable government and the need for sensitive information to be protected;
  • whether the Act adequately recognises the need to have a ‘safe space’ for policy development and implementation;
  • whether there is an appropriate balance between the need for public access to information and the burden on public bodies of providing this.

However, is this review really necessary?

Over recent years, a number of public figures have voiced their concerns over the Act. Even the man who introduced it, former Prime Minister Tony Blair, has stated that he was a “naive foolish, irresponsible nincompoop” to introduce it. He also suggested that it undermined “sensible government”.

Similarly, the former head of the Civil Service, Lord O’Donnell has argued that the requirement to release Cabinet minutes risked preventing “real discussions” between ministers.

There has also been discontent from local government, struggling to shoulder the financial cost of the Act. For instance, Ken Thornber, leader of Hampshire County Council, stated that:

“We spent £365,000 in 2010 answering freedom of information requests. What else could I do with that money? More social workers, more school inspectors, more spent on road maintenance.”

Although clearly frustrated by the Act, he doesn’t suggest withdrawing it. Instead, he proposes the idea of a £25 charge. His hope is that this would deter individuals from making ‘frivolous requests’.

In the 2010, University College London’s (UCL) Constitution Unit estimated that the cost of FOI requests for local government was £31.6 million. It also highlighted that civil servants spent 1.2m hours responding to nearly 200,000 requests.

Safeguards already exist

However, the review also has its opponents. For example, Sir Tim Berners-Lee, founder of the World Wide Web, has attacked the government’s decision. In particular, he criticises the UK Government for using its position at the top of the World Wide Web Foundation’s Open Data Barometer (annual worldwide survey of open government) to justify the review.

Anne Jellema, Chief Executive of the World Wide Web Foundation, has also added her disapproval. She explains that the UK’s position at the top of the Open Data Barometer should not be an excuse to undo the progress that has been made. In addition, she claims that the government is behind European countries on other transparency and accountability issues, such as state surveillance and freedom of the press.

The Campaign for Freedom of Information has raised concerns over the review panel. It highlights that there are no panel members with a proven commitment to transparency. Currently, the five person committee consists of high profile political figures, such as former Conservative Home Secretary Michael Howard and former Labour Foreign Secretary Jack Straw.

The Act has been praised for holding public bodies to account. For instance, the Daily Telegraph discovered that local authorities spent £2m on hotel bills over just 3 years, including stays at the Four Seasons in New York.

There are also those who maintain that safeguards are already in place. For example, section 35 of the Act provides a qualified exemption, which limits the release of information to the public. This safeguard is explicitly aimed at protecting the policy-making process.

A key challenge for any state is to strike the appropriate balance between effective governance and public accountability. Yet, with so many differing views, universal agreement is unlikely.  Therefore, no matter the outcome of the review, it’s likely that this debate will continue.

Steven McGinty is Research Officer at the Knowledge Exchange. This blog post has been republished with his kind permission.

Read Ibrahim Hasan’s FOI predictions here

Our forthcoming FOI workshops will look at these and other developments.

The FOI response arriving on platform two is 18 months late…

The request went in at the end of 2013. You can read the post again here and only 18 months after the original request during which time the east cost franchise changed hands. East Coast (government owned) failed to reply for 14 months and when I wrote to Virgin trains (the new owners) earlier this year I didn’t expect much but today the reply arrived.

“I am contacting further to your correspondence regarding information relating to taxis arranged from London King’s Cross station.

I apologise for the delay in responding to you; regrettably an administrative error prevented a previous response from being sent and I am sorry for any inconvenience this may have caused.

You have requested to know the number of times we supplied taxis to passengers arriving at Kings Cross on delayed trains, the total cost of these taxis and the total number of passengers and taxis involved. We do not have records comprehensive enough to fully provide this information however we have reviewed our taxi invoices for 2014 which shows that in that year there was a total of 1800 taxi jobs arranged with a total cost of £254,024.62. Regrettably we are unable to advise of the number of people these taxi jobs were arranged for or the reason why the taxis were arranged as this information is not recorded.”

Well done to Virgin – a Blue Riband to you. Poor show from East Coast – a purple shirt and tie set for your avoidance of FOI for 14 months.

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.

I Don’t Believe It! Fees for FOI Tribunal Appeals

Just when you thought FOI was safe (“Oh no we didn’t! Not after that Cabinet Office packed the new FOI Commission with people who don’t particularly care about FOI”, I hear you say), The Ministry of Justice has announced a consultation into changes to fees for, amongst others, FOI appeals at tribunal stage.

If the proposal goes ahead, it will cost £100 to apply for an appeal to the First Tier Tribunal (Information Rights) or the Upper Tribunal (if the case is transferred), and £500 for an oral hearing. Christopher Knight of 11 KBW has produced a helpful summary in this post on the Panopticon Blog.

This proposal is not a great surprise. In July 2012, the Justice Select Committee published its Report into Post-Legislative Scrutiny of the Freedom of Information Act 2000. The Government published its official response in December 2012 and paragraph 24 mentioned the possibility of introducing tribunal fees despite the Committee never suggesting it.

Introducing tribunal fees is clearly an attempt to curtail the public’s right to know in the guise of cost saving. The Campaign for Freedom of Information are mounting a vigorous defence of FOI. We should all try and contribute. Readers can also sign the 38 Degrees Petition to protect FOI laws.

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 caselaw on important matters of interpretation will suffer. Consequently application of the FOI exemptions, as well as other provision, will become more difficult. This alone is a good reason for a robust response to the consultation from the public sector.

The consultation paper and the impact assessment on tribunal fees are both on the Ministry of Justice website. The deadline for responses is 15th September 2015.

What else is afoot for FOI? I looked into my crystal ball, after the election, to predict how FOI could change now we have a Conservative majority government. It will be interesting to see how many of my predictions come true when the FOI Commission reports back in November.

Don’t forget on 18th July 2015 the new Re-use of Public Sector Information Regulations 2015 (ROPSI) came into force, replacing the 2005 version. They contain some important changes to the UK public sector information re use regime.

Ibrahim Hasan will be reviewing the latest FOI developments and caselaw in detail, in our forthcoming FOI Update webinar.

Re Use Re Loaded – New Public Sector Information Regulations In Force

On 18th July 2015 the new Re-use of Public Sector Information Regulations 2015 (ROPSI) came into force, replacing the 2005 version. They contain some important changes to the UK public sector information re use regime.

The new Regulations implement Directive 2013/37/EU, which amends Directive 2003/98/EC on the re-use of public sector information (the 2003 Directive). The aim of the latter was to remove obstacles that stood in the way of re-using public sector information. Key obligations for public authorities (including the health, local government and central government sectors) include:

  • being transparent and open about the terms and fees for re-use of information they hold
  • where licences are required to re use information, standard terms and conditions should be offered
  • having accurate notices and statements on documents and websites
  • producing an Asset List so that potential re-users of information know what is available
  • having a complaints process

A full article on the 2005 Regulations can be downloaded here. Key changes made by the new Regulations include:

  • Adding the previously excluded cultural sector (libraries, museums and archives) to the scope of the Regulations
  • Making it an obligation to allow re-use of most public sector information. Previously this was optional.
  • Extending the scope of the information available for re use to not just that which is accessible but anything produced held or disseminated with a public authority’s public task (unless restricted or excluded).
  • Marginal cost pricing is the default (subject to some exceptions) when it comes to charging for re use. Previously a profit could be made.

For the first time the UK re use regime will have teeth similar to FOI. Once the public sector body’s internal complaints procedures have been exhausted, a complainant may turn to the Information Commissioner, who can make a binding decision. A further appeal can be made to the First-Tier Tribunal.

How will the new Regulations overlap with the new dataset obligations under the FOI?  As a result of amendments made by the new Regulations, the requirements relating to datasets under FOI are now as follows.

If you are a public authority making a dataset available in response to an FOI request, you must, so far as is reasonably practicable, make it available in a re-usable, electronic form. You must also make requested datasets available in your publication scheme in a re-usable form unless you are satisfied that it is not appropriate to do so.

However, if the dataset falls under ROPSI, for example because it is produced as part of your “public task”, then you must calculate any charges for allowing re-use and deal with any licences under ROPSI and not FOI. This applies to providing the dataset in response to a request and making it available in the publication scheme.

So, for an FOI public authority, for any dataset that is covered by ROPSI, FOI applies to the format in which it is made available, but ROPSI applies to the charges and licences for re-use.

If the dataset does not fall under ROPSI because you are an FOI public authority but not a public sector body for the purposes of ROPSI, then the provisions in FOI regarding charges and licences for re-use will apply to it. Read the Information Commissioner’s Guide here. Expect lots of appeals to the ICO over these provisions.

The National Archives is the UK policy lead on public sector information. Its website contains useful resources on this topic. All public sector organisations need to carefully consider the new Regulations and how they will impact on the information they produce and disclose.

Want to know more? Ibrahim Hasan will explain the new Regulations in detail our live one-hour web seminar.

Give your career a boost by gaining an internationally recognised qualification in FOI.

Local Government Transparency Code Re – Issued

  

In February 2015 the Local Government Transparency Code was re issued to require local authorities to publish information about their social housing stock.

The Code was 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 October last year, Eric Pickles (the then Communities and Local Government Secretary) used this power to issue what was then an updated version of the Code.

As with the previous version, the re issued code requires quarterly publication of the same categories information namely:

  • Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.
  • Government Procurement Card transactions
  • Procurement information

Part 2.2 of the code sets out nine sets of data, which must be published annually. This includes local authority land, grants to voluntary bodies, trade union facility time, parking information and senior salaries. Here a new category of data, about social housing assets, has been added.

Local authorities owning housing must now publish details (set out in paragraph 38 to 44) of the value of social housing stock that is held in their Housing Revenue Account. This information must be published on the first occasion not later than 1 September 2015 (based on the most up to date valuation data available at the time of publishing the information), then in April 2016 and every April thereafter.

The Government believes that local people are interested in how their authority manages the social housing assets they hold. The move will give people the information they need to ask questions of how their council is managing stock to ensure this is put to best use, including considering whether higher value, vacant properties could be used to fund the building of new homes and reduce waiting times.

We could see more developments in this area. As I said in my recent blog post about the future of FOI, the Conservatives are keener on transparency through such codes than through extending FOI. Their election manifesto says:

“Transparency has also been at the heart of our approach to government. Over the last five years, we have been open about government spending, provided access to taxpayer-funded research, pursued open data and helped establish the Open Government Partnership. We will continue to be the most transparent government in the world.”

Smaller councils, including parish councils have to comply with the Transparency Code for Smaller Authorities, which was published in December last year.

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.

A Conservative Majority Government with Michael Gove as Justice Secretary! What now for Freedom of Information?

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So now we have Conservative majority government, contrary to the pollsters’ predicted. I know what you are thinking; what now for Freedom of Information?

Unlike Labour and the Liberal Democrats, the Conservatives did not mention FOI in their election manifesto choosing to talk about transparency instead:

“Transparency has also been at the heart of our approach to government. Over the last five years, we have been open about government spending, provided access to taxpayer-funded research, pursued open data and helped establish the Open Government Partnership. We will continue to be the most transparent government in the world.”

The Conservatives have always been keener on pro active publication of information than FOI. In July 2012, in a speech at the Policy Exchange, Francis Maude said:

“I’d like to make Freedom of Information redundant, by pushing out so much [open] data that people won’t have to ask for it.”

We could see more requirements on local authorities to publish information. Last October, an updated version of the Local Government Transparency Code was published. This requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information (in Part 2 of the code) whilst also recommending that they go beyond the minimum (in part 3 of the code). It could be that Part 2 of the code (the mandatory publication requirements) is extended to include more categories of information. There is also a Transparency Code for Smaller Authorities published in December last year, which could similarly be extended.

Could the Tories make an assault on FOI now that there is no coalition partner to hold them back? David Cameron has, in the past, expressed his irritation with FOI. In March 2012, giving evidence to a Select Committee, he said that FOI was “furring up the arteries” of government. More recently, speaking to the Times newspaper, he said:

“I wish we’d spent more time in opposition thinking about how to declutter government. What I call the buggeration factor, of consulting and consultations and health and safety and judicial review and FOI [the Freedom of Information Act] … Just generally, if you want to do something, build a road, start a new college, launch a programme to encourage people to build more houses – it takes a bloody long time.”

Until yesterday there were no post election clues about the fate of FOI. And then came the appointment of Michael Gove as Justice Secretary; the head of the government department that is responsible for, among other things, Freedom of Information. To say that Gove is no fan of FOI is like saying George Galloway does not like losing elections. This is the same Michael Gove who, a few years ago, was at the wrong end of an Information Commissioner Decision Notice. This related to his time as Education Secretary when he and his officials had routinely used personal email accounts to discuss official, often controversial, Department business. Apparently this was done in the belief that such emails would not be disclosable pursuant to an FOI request.

At present Gove has more pressing matters to deal with. Scrapping the Human Rights Act seems to be the Tories’ top priority. But when he does get round to FOI, it is 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 Government published its official response in December 2012. The Committee recommended that consideration be given to reducing the amount of time an authority need 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 response, said that it doubts that much will be achieved through the reduction of the costs limit. It was though in favour of allowing additional factors to be taken into account in deciding whether the 18 hour 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 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. 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.”

Fees could also be introduced for FOI tribunal appeals. The Committee never considered the issue but the Government (at paragraph 24 of its response) indicated that it was considering the idea:

“…the Government is keen explore the potential for users to contribute more towards the costs of tribunals. Fees are already charged in some jurisdictions (for example, in the Immigration and Asylum tribunal) and we will examine the scope for extending this approach to other types of tribunal, including the Information tribunal.”

One thing is for certain. The Police Federation will be made subject to FOI. In a speech in May 2014 the Home Secretary, Theresa May, said that the Police Federation needs to be more accountable to the public. In March this year she announced that there was no time to amend FOI to add it to the list of public authorities but she also published a draft clause “that demonstrates how that change could be made in legislation, with the intention this would be fulfilled in the next Parliament.”

Interesting times ahead for FOI officers.

No time to attend our FOI Update workshops? Try our live FOI webinars. One hour of interactive learning for only £39 plus vat.

Information, Documents or Both – What is available under FOI?

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It is an oft-repeated phrase that the Freedom of Information Act (FOI) provides a right of access to information but not documents. A recent Court of Appeal decision shows that it is not that straightforward an issue.

Section 1 contains the general right of access and uses the term “request for information.” But what exactly is “information”? Section 84 defines it as “information recorded in any form.” This includes information held on paper, computer, video, audiotapes as well as that contained in manuscript notes. No mention is made of access to the actual documents containing the information. However this does not mean that documents cannot be requested.

A request for a document will generally be a valid request for all of the information contained within that document (including visual format, design, layout etc). In considering whether the public authority has complied with the request, the question is whether all of the information recorded in the document has been provided. It will not be sufficient to rephrase the document or provide an outline or summary of its contents unless the applicant has specifically expressed a preference for a digest or summary under section 11(1)(c).

This matter has now been put beyond doubt by a Court of Appeal decision this week. Judges dismissed an appeal by the Independent Parliamentary Standards Authority (IPSA), the body that oversees MPs’ expenses claims, from a decision of the Upper Tribunal requiring it to release copies of MPs’ invoices and receipts. This is the latest in a serious of appeals by IPSA in an attempt to overturn the original decision of the Information Commissioner.

In April 2013 the First Tier Tribunal (Information Rights), ruled that images of MPs’ expense claim receipts were information to which the FOI applied (IPSA v Information Commissioner (EA/2012/0242)). The background to the request was that, following the MPs’ expenses scandal, the then newly-formed IPSA, decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims.  Only text transcribed from the submitted receipts would be published.

A journalist made an FOI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOI, which was not captured by the transcription process favoured by IPSA. The Tribunal concluded that the definition of information (in this case) included logos, letterheads, handwriting, manuscript comments, and even the layout and style of the requested documents. These were not disclosed to the requestor as a result of providing a transcription, rather than a copy, of the relevant receipts.

Last year the Upper Tribunal’s Judge Williams (in Independent Parliamentary Standards Authority v IC & Leapman [2014] UKUT 33 (AAC)) dismissed the appeal by IPSA. At Paragraph 22 of the judgement he said:

“It is to me also trite to note that the wording on a typical receipt or invoice is only part of what a recipient sees when looking at it. Typically there will be verbal and numerical content to be read and understood, but there will also be visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience, if I may term it that, communicated by the receipt or invoice.”

In the judge’s view information is more than just the words and figures on a piece of paper. Sometimes the nature of the request will mean that the only way to convey all the information on a document is to disclose the original or at least a copy. He gave the example of Land Registry plans, drawings and photographic evidence of a particular building.

In coming to his decision the judge took note of the Scottish Court of Session decision in Glasgow CC v SIC [2009] CSIH 73 under the Freedom of Information (Scotland) Act 2002 (FOISA). As a general point of principle, the Commissioner and the Tribunal is not bound by Court of Session decisions on FOISA, although they may be considered persuasive where the terms of FOISA mirror the terms of FOI. In the Scottish case the applicant specifically wanted the public authority to provide copies of the documents, although he acknowledged that the same information was available elsewhere. The Court confirmed that FOISA entitles requesters to the information within a document, rather than a copy of the document itself. To the extent that this request was specifically for copies of the documents over and above the information they contained, it was invalid. The Court rejected an argument that the copy documents were “information” distinct from the information contained within them.

Paragraph 45 of the Court of Session judgment states:

“Where the request does not describe the information requested… but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant.”

However paragraph 48 should be noted:

“The difference between the original and a copy… does not consist in any difference between the information recorded in each document: that information, if the copy is true and accurate, will be identical.” (my emphasis)

To quote one of our FOI trainers (Philip Bradshaw), much will also in practice depend on the wording of the request. Contrast “How much did you spend on pencils?” with “Can I have a copy of your pencil invoices”. You can clearly provide in permanent form all the recorded information within scope of the first request without copies, but not perhaps for the second.

In the IPSA case, the judge ruled that transcriptions of the requested receipts would not be “true and accurate”, as they would not contain all the same information as on the originals e.g. logos, style, layout etc.

This is an interesting decision especially for those public authorities who often insist, when refusing to supply actual documents (such as minutes of meetings) that FOI is about access to information not documents. Sometimes the requestor is interested in the document, which contains the requested information, as it will give a further insight into its background and the thoughts/observations of the producers/subjects of the document.

IPSA has been given time to consider taking the case to the Supreme Court.

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops which are delivered in one hour online sessions as well as full day face to face sessions.

The @BCS FOI Certificate: A Career Boost

“The course gives you a greater understanding of FOI and EIR, as well as giving you greater confidence in their application. I feel that I can now advise on FOI and EIR with more authority.”
GJ, TFL

“Excellent course materials clearly presented by a very knowledgeable and friendly teacher. Highly recommended for new and experienced FOI officers.” 
LV, Public Health England

“Excellent trainer – fantastic breadth of knowledge and expertise. Would recommend this course to anyone.” 
PG, National Archives

“A perfectly pitched course led by an extremely knowledgeable trainer. Ideal for the novice or practising FOI officer.”
GT, Department of Health

“Thorough training, to the point but not dry.”
PS, Essex CC

“This has been a brilliant course – dynamic and pacey, which is an achievement in itself for such a dry subject.”
SB, Rural Payments Agency

The British Computer Society’s (BCS) Certificate in Freedom of Information (formerly ISEB) is now firmly established as one of the premier qualifications in FOI. It is internationally recognised and increasingly mentioned as a desirable qualification in FOI Officer job vacancies. Sometimes it is even stated as a requirement.

Act Now has been running courses leading to the certificate for many years. Our team of FOI experts have helped to make us one of the most successful companies in this area with a pass rate of over 85%.

Our course is aimed at anyone working in the FOI area, such as information managers, FOI practitioners, information governance officers, data protection officers, press officers and lawyers advising on information law issues. No prior knowledge is assumed although it always helps to have some experience of dealing with FOI requests. Our course runs over several weeks (one day per week) rather than being crammed into a few days. This allows delegates to get to know each other and benefit from their respective experience and knowledge. Often friendships are forged which continue to be of mutual assistance well after the course has ended.

Online Resource Lab

What makes the Act Now BCS FOI course unique is that we have a full online Resource Lab, which compliments the face-to-face teaching and course materials. Delegates can watch over 5 hours of videos on various aspects of the syllabus. Most videos are linked to an online quiz allowing delegates to test their knowledge at the end. There are also many standalone quizzes as well as links to ICO guides and other useful reference documents in the Resource Lab. This means that candidates have a full resource library which they can access at anytime to back up what they learnt on the course or to catch up if they fell asleep in the afternoon after a good lunch! Our courses are at five star (city centre) hotels so the latter is always a possibility.

The Exam!

The course is assessed through a three hour scenario based, closed book written exam which consists of:

  • Part A: 10 multiple choice questions (1 mark each)
  • Part B: 8 compulsory short narrative questions (5 marks each)
  • Part C: 6 questions – a compulsory case study (20 marks each) plus two other essay questions (15 marks each)

The pass mark is 50% (50/100) and the distinction mark is 80% (80/100).

Passing the exam is as much about exam technique as it about knowing the law and how to apply it. Our course (and homework) contains lots of scenario-based exercises which are designed to teach delegates how to answer the key points of a question within the time available in the exam. Each exercise/homework is further discussed in a group setting before a suggested answer is agreed upon.

We also hold a live online revision session, which allows delegates to ask the trainer to go over key areas of the syllabus and/or more sample questions. There is also a test at the end.

How To Pass

Don’t be too worried about the exam. You will be taught by a very experienced trainer who himself has passed the exam with a distinction. But in the end your success will depend on the hard work you are willing to put in. Timely attendance is essential as well as the doing the homework and taking an active part in discussions. We also find that candidates who pass the mock exam pass the real thing. Therefore revision for the mock is essential. Those who learn key facts as they go along rather than cram at the end inevitably tend to do well. (Read our other top tips here.)

A successful FOI candidate and a successful DP candidate have also shared their views on how to get the best out of the course on our blog.

Are you a Freedom of Information (FOI) practitioner wanting to give your career a boost? Or perhaps you are new to FOI wanting to quickly get up to speed with FOI law and practice? Now is the time to think about doing a BCS FOI course. Not only will it give you an in depth knowledge of FOI law and practice, it will allow you to prove your expertise to your colleagues through gaining an internationally recognised qualification. At Act Now we are dedicated to ensuring you get the best training and resources to help you achieve your potential. Don’t just take our word for it though.

Read what our previous delegates have said and one of the tutors. If you are feeling brave, have a go at our online BCS FOI test.

Our next BCS FOI Course starts next month in Manchester.

For Scottish colleagues we run the Act Now FOISA Practitioner Certificate which is endorsed by the Centre for Information Rights based at the University of Dundee.

A Decade of FOI in Scotland: Celebrating Success, Securing Rights for the Future

Erin Ferguson examines the Scottish Information Commissioner’s special report…capture-20150211-092345

Freedom of information (FOI) legislation has recently celebrated its tenth anniversary in the United Kingdom. Overall, the UK FOI regime has been deemed successful. 400,000 requests for information have been made in the past ten years, leading to some notable disclosures and helping to establish a greater culture of transparency in public services.

Nevertheless, the Scottish Information Commissioner Rosemary Agnew recently warned that the scope of FOI in Scotland (under the Freedom of Information (Scotland) Act 2002) has reduced and that people now have less access to information than they did a decade ago.

On 19 January Agnew published a special report entitled “FOI 10 Years On: Are the Right Organisations Covered?” The report is limited to the Scottish experience, but addresses a challenge faced throughout the UK. That is, how can FOI obligations be extended to cover the wide range of organisations that now have responsibility for public service delivery?

Agnew called the introduction and implementation of the FOI Act one of Scotland’s “major success stories,” but warned that changes in public service delivery are eroding information access rights. As functions are outsourced or transferred to arm’s-length organisations, they no longer fall within the scope of the FOI Act. The transfer of social housing, for example, from local authorities to housing associations means that 15,000 households in Scotland have now lost information access rights. This affects not only access to information, but also access to justice. The loss of appeal rights to the Scottish Information Commissioner means that the public are faced with the more costly option of appealing through the courts. It is clear that FOI plays an important role in encouraging transparency and promoting civic engagement, so how can this be preserved?

The report noted that the FOI Act was introduced with the intention of extending coverage to additional bodies. A Section 5 Order allows Ministers to designate additional organisations as public bodies, but Agnew reported that this mechanism has been ‘woefully underused.’ Ministers have only exercised these powers on a handful of occasions (e.g. on 1st April 2014), and whilst it is difficult to say why they have not made greater use of this mechanism, the report speculated that lack of political will and misunderstandings over what constitute a public function might be among the reasons. Therefore, Ministers will need support in order to make greater use of the Section 5 Order.

Whereas previous debates on whether to extend FOI coverage have focused too narrowly on the structure of institutions and how they are funded, greater consideration should be given to the nature of the functions performed. As it is ultimately up to the Ministers to decide what constitutes a function of a public nature, a factor based approach can help to determine whether an organisation should be designated a public body for FOI purposes. Factors would include whether the organisation is taking the place of a public authority in carrying out a particular function and whether the functions are derived from or underpinned by statute. (A full list of factors can be found on p.18 of the report.)

The factor based approach would make the designation of additional bodies more open and transparent, and might also help to alleviate some of the challenges that have arisen from extending FOI coverage. Academies and Free Schools, for example, were brought in under the UK FOI Act in 2010. Since then, there have been some notable releases of information, but also some well-known instances in which information has been withheld, leading to lengthy appeals. The Department for Education (DfE) has withheld information on free school applications, relying on exemptions under Section 35 (information related to formulation of government policy) and Section 43 (information likely to prejudice the commercial interests of any party) to withhold information. Although this is merely one example and should not be understood of evidence of a widespread phenomenon, it does demonstrate that a tension remains when balancing the public interest in disclosure against the public interest in withholding information. Will extending FOI coverage to additional bodies simply lead to greater use of exemptions? Or will the factor based approach help to clarify which functions should be covered and why?

There is no straightforward answer to these questions, but the report suggested that support for newly designated bodies can help to ensure smoother implementation. Likewise, the public will need support as the gaps and inconsistencies created by changing models of service delivery has led to some confusion over which rights they hold. After all, as page 9 of the report says, ‘the existence of a right is one thing; making it straightforward to use is something else entirely.’

Erin Ferguson is a PhD Researcher at University of Strathclyde Law School. She blogs (http://www.erincferguson.com) and tweets (https://twitter.com/fergusonerin).

Act Now Training runs the Practitioner Certificate in the Freedom of Information (Scotland) Act 2002 which is endorsed by the Centre for FOI (based at Dundee University). The course structure is designed to thoroughly examine the law as well as the practical aspects of dealing with FOISA (and EI(S)R) requests on a day-to-day level. Read what the tutor has to say and have a go at the FOISA test.

New Transparency Code for Smaller Authorities

file0001686927828In October 2014 the Department for Communities and Local Government (DCLG), published an updated version of the Local Government Transparency Code . This applies in England only and replaces the previous version. The code requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information (in Part 2 of the code) whilst also recommending that they go beyond the minimum (in part 3 of the code). Read more about the code here.

But what of smaller public authorities and parish councils? On 10th March 2014 the Government launched a consultation on a draft transparency code for such organisations, which will act as a substitute for routine external audit.

On 17th December 2014 the DCLG finally published the Transparency Code for Smaller Authorities. This code applies to the following types of authorities with an annual turnover not exceeding £25,000:

  • parish councils
  • internal drainage boards
  • charter trustees
  • port health authorities

This code is issued to meet “the government’s desire to place more power into citizens’ hands to increase democratic accountability.” However it is published initially as recommended practice, although the Secretary of State told Parliament on 17th December that he intends to make the code mandatory by the start of the 2015 financial year.

The Local Audit and Accountability Act 2014 sets out a new audit framework for public authorities which are currently covered by the Audit Commission regime. Under this new framework smaller authorities will be exempt from routine external audit. In place of routine audit, they will be subject to the new transparency requirements laid out in this code. This will enable local electors and ratepayers to access relevant information about the authorities’ accounts and governance.

Part 2 of the code sets out the information to be published:

  1. all items of expenditure above £100 (see paragraphs 13 – 15);
  2. end of year accounts (see paragraphs 16 and 17),
  3. annual governance statement (see paragraphs 18and 19),
  4. internal audit report (see paragraphs 20 – 22),
  5. list of councillor or member responsibilities (see paragraph 23)
  6. the details of public land and building assets (see paragraphs 24 – 27)
  7. Minutes, agendas and meeting papers of formal meetings (see paragraphs 29 and 30)

The code states that the information specified must be published on a website which is publicly accessible and free of charge. This could be on the authority’s own website or that of the billing authority in its area (district or London borough or unitary council).

Ibrahim Hasan will be discussing both transparency codes in his forthcoming live and interactive one-hour web seminar.