Category: Transparency

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.

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.

Yet Another Local Government Transparency Code – A Gift for Armchair Auditors?

SwordThe Coalition Government likes “armchair auditors”.

Within weeks of coming to power in 2010, it released all items of local authority expenditure over £500. The Secretary of State for Communities and Local Government, Eric Pickles, said at the time that the move would “unleash an army of armchair auditors and quite rightly make those charged with doling out the pennies stop and think twice about whether they are getting value for money”.

Section 3 of the Local Government, Planning and Land Act 1980 gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities relating to the discharge of their functions. Back in May, Eric Pickles used this power to issue (what was then) a new Local Government Transparency Code. (See my earlier blog post.)

Now, an updated version of the Code , dated October 2014, has been issued. It 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). It follows last year’s consultation on Improving Local Government Transparency: “Making ‘The Code of Recommended Practice for Local Authorities on Data Transparency ’ enforceable by regulations.”

Ministers will imminently make and lay regulations (The Local Government (Transparency Requirements) (England) Regulations 2014)) to make it a legal requirement for local authorities to publish the data specified in Part 2 of the code. Subject to Parliamentary processes, Part 2 should become mandatory by 7 November 2014.

Part 2.1 of the code sets out information, which must be published at least quarterly. This includes:

  • Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.
  • Government Procurement Card transactions
  • Procurement information which includes details of every invitation to tender for contracts to provide goods and/or services with a value that exceeds £5,000, together with any contract, commissioned activity, purchase order, framework agreement and any other legally enforceable agreement, also with a value that exceeds £5,000.

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. In relation to trade union facility time, authorities should publish the amount spent on providing support and facilities to trade unions within their workforces, and specify which unions. In relation to parking charges, categories include the number of off-street parking places and the revenue raised from them; the number of on-street parking places and the revenue they raise; as well as the revenue from parking fines and the number of free parking spaces available.

The main difference between the May and October codes is that the latter has added three datasets to the list of information which must be published: namely information about how the authority delivers waste services, uses the parking revenue it collects and tackles fraud.

On salaries the code requires publication of more information than is currently required under the Accounts and Audit (England) Regulations 2011. Local authorities must now place a link on their website to these published data or place the data itself on its website, together with a list of responsibilities (for example, the services and functions they are responsible for, budget held and number of staff) and details of bonuses and ‘benefits in kind’, for all employees whose salary exceeds £50,000. The key differences between the requirements under this new code and the Regulations referred to above is the addition of a list of responsibilities, the inclusion of bonus details for all senior employees whose salary exceeds £50,000 and publication of the data on the authority’s website. What effect will this have on FOI requests for salary information? Certainly senior figures will find it hard to claim that they have an expectation of privacy when it comes to FOI requests for similar information. (More on salaries here.)

Part 3 of the new code sets out the information, which is recommended to be published, but there is no requirement to do so. This is about providing more detail to information already published under the required category in Part 2, e.g. more details about expenditure, procurement, grants etc. For example instead of just publishing details of expenditure over £500 on a quarterly basis, local authorities are encouraged to publish expenditure over £250 on a monthly basis or better still in real time.

Existing restrictions on disclosing information still apply though. Paragraph 14 of the code states:

“Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.”

However where a qualified exemption under FOI applies, the appearance of the requested information in one of the categories set out in the code will have a big impact on the public interest in support of disclosure.

How should data under the new code be published? The code states that it should be in a format and under a licence that allows open re-use, including for commercial and research activities, in order to maximise value to the public. The Open Government Licence, published by the National Archives, should be used as the recommended standard. Where any copyright or data ownership concerns exist with public data these should be made clear. Data covered by Part 2 of the code must be published in open and machine-readable formats.

The DCLG has also published an accompanying FAQ Guide which gives further guidance on how to practically apply the new code.

Despite Part 2 of the code being legally enforceable soon (see above), does the code have any teeth? The code does not have an enforcer like the Information Commissioner under FOI. Indeed the DCLG has pointed out in the FAQs that it is not the Commissioner’s role to enforce the code. It does though suggest that complainants can issue a judicial review claim in the High Court (unlikely with public funding of such cases being virtually ceased) or complain to the Local Government Ombudsmen. It also suggests they make an FOI request for the same information!

It will also be interesting to see how this new code works with the new dataset obligations under the FOI, which came into force on 1st September 2013 via the Protection of Freedoms Act.

On 10 March 2014 the Government launched the consultation on a draft transparency code for parish councils with a turnover not exceeding £25,000, which will act as a substitute from routine external audit. The Government published its response to the consultation on 6th August and intends to lay regulations to make the code mandatory later on this year. (More for those advising Parish Councils here.)

The Government believes that transparency about how local authorities spend money and deliver services, and how decisions are made within authorities, gives local people the information they need to hold their local authority to account and participate in local democratic processes. It claims that the availability of data can also help secure more efficient and effective local services and open new markets for local business, the voluntary and community sectors, and social enterprises to run services or manage public assets.

Will armchair auditors make use of this new information? Time will tell but readers would be right to be sceptical.

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.

The New Local Government Transparency Code

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Section 3 of the Local Government, Planning and Land Act 1980 gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities relating to the discharge of their functions. The Secretary of State for Communities and Local Government has just issued a new Local Government Transparency Code . It 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 whilst also recommending that they go beyond the minimum. It follows last year’s consultation on Improving Local Government Transparency: “Making ‘The Code of Recommended Practice for Local Authorities on Data Transparency ’ enforceable by regulations”. In that consultation, Eric Pickles, the Communities Secretary, wanted the power to enforce the Code through regulations. This would have given him the power to seek an order from the courts that an authority is in breach of its obligations, and/or an order that it must comply with its duties. It seems that this idea has been quietly dropped but the code does say:

“In principle all data held and managed by local authorities should be made available to local people unless there are specific sensitivities (e.g. protecting vulnerable people or commercial and operational considerations) to doing so.”

Part 2.1 of the code sets out information, which must be published at least quarterly. This includes:

  • Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.
  • Government Procurement Card transactions
  • Procurement information which includes details of every invitation to tender for contracts to provide goods and/or services with a value that exceeds £5,000, together with any contract, commissioned activity, purchase order, framework agreement and any other legally enforceable agreement, also with a value that exceeds £5,000.

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. In relation to trade union facility time, authorities should publish the amount spent on providing support and facilities to trade unions within their workforces, and specify which unions. In relation to parking charges, categories include the number of off-street parking places and the revenue raised from them; the number of on-street parking places and the revenue they raise; as well as the revenue from parking fines and the number of free parking spaces available.

On salaries the code requires publication of more information than is currently required under the Accounts and Audit (England) Regulations 2011. Local authorities must now place a link on their website to these published data or place the data itself on its website, together with a list of responsibilities (for example, the services and functions they are responsible for, budget held and number of staff) and details of bonuses and ‘benefits in kind’, for all employees whose salary exceeds £50,000. The key differences between the requirements under this new code and the Regulations referred to above is the addition of a list of responsibilities, the inclusion of bonus details for all senior employees whose salary exceeds £50,000 and publication of the data on the authority’s website. What effect will this have on FOI requests for salary information? Certainly senior figures will find it hard to claim that they have an expectation of privacy when it comes to FOI requests for similar information. More on salaries here.

Part 3 of the new code sets out the information, which is recommended to be published, but there is no requirement to do so. This is about providing more detail to information already published under the required category e.g. more details about expenditure, procurement, grants etc. For example instead of just publishing details of expenditure over £500 on a quarterly basis, local authorities are encouraged to publish expenditure over £250 on a monthly basis or better still in real time.

Existing restrictions on disclosing information still apply though. Paragraph 14 of the Code states:

“Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.”

However where a qualified exemption under FOI applies, the appearance of the requested information in one of the categories set out in the code will have a big impact on the public interest in support of disclosure.

How should data under the new code be published? The code states that it should be in a format and under a licence that allows open re-use, including for commercial and research activities, in order to maximise value to the public. The Open Government Licence published by the National Archives should be used as the recommended standard. Where any copyright or data ownership concerns exist with public data these should be made clear. Data covered by Part 2 of the code must be published in open and machine-readable formats.

It will be interesting to see how this new code works with the new dataset obligations under the FOI, which came into force on 1st September last year via the Protection of Freedoms Act.

How far will local authorities go in publishing information under the code? Will they just do the bare minimum? (Answers on a postcard or in the comment field below.)

Give your career a boost in 2014 by gaining an internationally recognised qualification in FOI. Keep up to date with all the latest FOI decisions in 2014 by attending our FOI Update workshops.