Tag: FOI

The Public Interest Test under EIR and FOI: Weighting the Arguments

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A recent decision of the Upper Tribunal, under the Freedom of Information Act 2000 (FOI), provides a useful reminder of what a public authority needs to do when applying the public interest test.

FOI practitioners will be familiar with conducting public interests tests when considering whether to apply one of the qualified FOI exemptions and the exceptions in the Environmental Information Regulations 2004 (EIR). Both sets of exemptions/exceptions require a public authority to weigh the public interest in maintaining the exemption against the public interest in disclosure. A public authority can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure.

Public interest arguments in favour of withholding the information must relate specifically to that exemption. In addition, the public authority must consider all the circumstances of the case. This means that two identical requests to different public authorities may result in different disclosure decisions if the circumstances of the case are different.
Practitioners should be particularly cautious about relying on other cases to help decide where the public interest lies and must not apply blanket refusals to certain types of information. In one of its earlier decisions, the First Tier Tribunal (Information Rights) made it clear that a public authority may have a general policy that the public interest is likely to be in favour of maintaining an exemption in respect of a specific type of information, but any such policy must be flexibly applied, with genuine consideration being given to the circumstances of the particular request (see Guardian Newspaper and Heather Brooke v Information Commissioner (EA/2006/0011)).

Essentially, this ‘weighting’ exercise requires a public authority to consider, in the specific circumstances of each case, whether it is in the public interest to disclose the information or to withhold it. Arguments against disclosure must focus on the factors associated with the particular exemption in question and the interest it seeks to protect (see Oxford City Council and Hogan v Information Commissioner EA/2005/0026). Where, an exemption is about prejudice (under FOI) or adverse effect (under the EIR) then there is an inherent public interest in avoiding that prejudice or adverse effect.

The Ryan Case

The recent Upper Tribunal decision, in Ryan v Information Commissioner [2020] UKUT 54 (AAC), involved a request by Mr Ryan to Kent County Council for information about the Council’s negotiations with Tesco in relation to the sale of council land to Tesco in 2004. Mr Ryan wanted to see the correspondence between the Council, the Council’s agent and Tesco. The land in question was a two-acre site that included an Adult Education Centre and car park. As part of the sale contract, Tesco agreed to provide a shop unit for community use to be leased back to the Council at a nominal rent, with the Council paying the costs of constructing the building. However, in 2015 Tesco decided that it would not proceed with its development plans and subsequently sold the land on to a company for residential development. Consequently the community lost the use of the adult education centre that had to be relocated elsewhere. The health and social care centre that was supposed to have been based in the community shop was forced to move into a smaller space inside a library. Mr Ryan argued that there was a  strong public interest in knowing what the Council’s negotiation strategy had been, since the failure of the negotiations with Tesco had clearly caused “ongoing pain” to the community through the loss of these community services.

Following an investigation by the Information Commissioner’s Office (ICO), the Council disclosed the majority of the information requested but continued to withhold one section of a document (“Negotiating Strategy”) relating to its negotiations with Tesco. The Council claimed that disclosure would prejudice its commercial interests and used EIR regulation 12 (5)(e) to withhold this one section. This permits a public authority to refuse a request for environmental information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.

In her Decision Notice (FER0713831) the Commissioner concluded that disclosing the requested information would highlight a tactic used by the council in the negotiations which might well be used in similar circumstances in the future. She decided that the exception was engaged and that the public interest favoured withholding this one piece of information.

The First Tier Tribunal (Information Rights) agreed that the exception was engaged (Ryan v Information Commissioner EA/2018/019). Although the negotiations with Tesco had ended some time ago, the Tribunal decided that disclosure of the relevant tactic may lead parties considering future negotiations with the Council to change their negotiating strategy and that the confidentiality of this commercial information would be adversely affected by disclosure. The Tribunal decided that there was a significant public interest in understanding what happened with the deal and why attempts to obtain the adult education centre and the health and social care centre failed. Disclosure of information about how and why the situation had happened would further the public interest in holding the Council to account for its conduct of this matter and could help to ensure that the same thing does not happen again. On the other hand the Tribunal considered that there was a clear public interest in allowing the Council to approach negotiations on a level playing field; that disclosure would the undermine its negotiating position in future similar negotiations and this would  prevent it from obtaining the best value in its land deals, with a consequential effect on the public purse. On balance the Tribunal decided that taking into account the specific information, the public interest arguments and the amount of information that had already been disclosed, that the public interest favoured withholding the small amount of information regarding negotiating tactics. In particular the Tribunal noted that the disputed information would not greatly further the public’s understanding of what had happened, and disclosure would cause substantial damage to the public interest.

On appeal the Upper Tribunal decided that the First Tier Tribunal’s approach was wrong. The latter had not taken into account the content of the disputed information, which in the Upper Tribunal’s view contained nothing “unique or unusual”. The Upper Tribunal stated that the information was about the sort of advice that a local authority would generally be given in the circumstances and that it was also the sort of advice that would be anticipated by the other side. In its view disclosure would not adversely affect the Council in the ways identified by the First Tier Tribunal. However, the Upper Tribunal has remitted the case back to a differently constituted First Tier Tribunal for reconsideration of the public interest.

In doing this the Upper Tribunal, referring to one of its earlier decisions (FCO v Information Commissioner and Plowden [2013] UKUT 275 (AAC), made some important observations about the public interest test:

  1. It is important to look at the disputed information and consider whether its disclosure would further the public interest. In this case the Upper Tribunal suggests that if the information regarding tactics is well known to anyone advising on development issues, disclosure would not do much to further the public interest in disclosure. If the disputed information is not particularly informative then it is important to explain what the public interest in disclosure is that will outweigh the public interest in maintaining an exemption.
  2. The test for the balance of public interests is a comparative one; so that the weaker the case for one side, the less public interest is needed on the other side to outweigh it.
  3. Under the EIR it is necessary to show how the presumption in favour of disclosure has been factored into the consideration. This applies to public authorities, the Commissioner, and the First Tier Tribunal.

This case concerned a qualified exception under EIR and therefore technically only provides a precedent in relation to that legislation. When a public authority is applying one of the EIR exceptions it must show how it has factored the presumption in favour of disclosure into its considerations. A public authority would be well advised to explain how it has done this in the Refusal Notice.

The FOI does not include an expressly stated presumption in favour of disclosure, so this aspect of the judgment has no bearing on it. However, this case provides some useful lessons for practitioners when dealing with qualified exemptions under the FOI. The first two observations listed above have equal force when dealing with qualified exemptions under the FOI and serve to remind us that it is always necessary to consider whether and how disclosure of the disputed information will further the public interest, and to deal with each case on its own set of facts.

This and other developments will be discussed in our FOI and EIR workshops which are now available as an online option. If you are looking for a qualification in freedom of information, our FOI Practitioner Certificate is ideal.

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First Prosecution For Deleting Files under S.77 FOI

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Section 77 of the Freedom of Information Act 2000 (FOI) makes it a criminal offence for a person to do anything with the intention of preventing the disclosure of information pursuant to an FOI request. This offence is often briefly discussed in our FOI workshops. We say “briefly” because nobody has ever been prosecuted and our delegates reliably assure us that “that sort of thing never happens.” However, in March 2020, a town clerk became the subject of the first successful criminal prosecution under section 77 of FOI.

Nicola Young worked for Whitchurch Town Council in Shropshire. After pleading guilty to the charges, she was fined £400 and ordered to pay £1,493 costs and a victim surcharge of £40. The facts of the case are that a person had made an FOI request to Whitchurch Town Council for a copy of an audio recording of a council meeting.
They believed that the written minutes of the meeting had been fabricated and so they wanted to listen to the recording of the meeting. Ms Young deliberately deleted the audio recording a few days later and then advised the requestor that the audio file had been deleted as part of the council’s destruction policy. The Information Commissioner became involved when the requestor complained to her office. Readers may think that the fine is very low but it is important to remember that Ms Young now has a criminal conviction that will almost certainly affect her career prospects.

The Section 77 Offence

The S.77 offence requires three things to be proven:

  1. The information was requested by an applicant and they would have been entitled to receive the information (subject to the payment of any fee). If the deletion or alteration occurs before the information request is received, then no offence is committed.
  2. The person charged with the offence did one of the following things to the information; namely altered it, defaced it, blocked it, erased it or destroyed it.
  3. And the person charged, intended to prevent the public authority from disclosing some or all of the information to the applicant. In other words their actions were deliberate.

Section 77 does not provide any statutory defence. However, a prosecution will fail if the prosecution cannot prove that the defendant had the necessary intent (what lawyers call “mens rea”). Prosecutions are brought by the Information Commissioner or by or with the consent of the Director of Public Prosecutions. Cases can only be tried in the magistrates’ court. The offence can be committed by any public authority and any person who is employed by, is an officer of, or is subject to the direction of a public authority. Regulation 19 of the Environmental Information Regulations 2004 creates an identical offence, albeit with slightly different provisions governing government departments.

Why is this the First Prosecution?

There are two main reasons why we have not seen successful prosecutions under S.77 of FOI before this case.

Firstly, the ICO only has six months to bring a prosecution. This period runs from the date that the offence is committed, not from the date that the ICO becomes aware of it.  In practice the ICO will not be called to investigate a complaint until an applicant has exhausted a public authority’s internal review procedures. The Act doesn’t specify how quickly a public authority should complete an internal review, but the S.45 Code of Practice states that this should normally be within 20 working days. This effectively means that the ICO is unlikely to be investigating a complaint until at least a month, or probably two, has elapsed since the request. That assumes that the ICO can investigate as soon as the complaint is received, which is not normally the case.

Secondly, for a successful prosecution under S.77 there must be proof of intent to destroy, conceal, deface etc. Given that this is a criminal offence the proof must be “beyond reasonable doubt.” This may be difficult to do so long after the event and if there is insufficient evidence to prove that the destruction etc was deliberate. During an investigation, the ICO will almost certainly want to see a public authority’s information disposal schedule. Its guidance notes that a disposal schedule will also offer an authority a defence to any suggestion that a S.77 offence has been committed. It will be able to explain that a record containing the requested information was destroyed as part of its routine disposal process.

This is the first prosecution in 15 years under S.77 of FOI which demonstrates the difficulties mentioned above. It does not necessarily mean that offences have not been committed before, but more likely that the ICO’s investigations have not been conclusive within the six-month period.

It is worth noting that the Data Protection Act 2018 introduces a new criminal offence in almost identical terms. Under  S.173 DPA a person commits an offence where they, upon receiving a data subject access request, alter, deface, block, erase, destroy or conceal personal data with the intention of preventing disclosure. There are two defences available. Firstly it is a defence if the alteration, defacing, etc would have occurred in the absence of a subject access request. For example, if the information is destroyed as part of an organisation’s data destruction schedule. The second defence is where a person can prove that they acted in the reasonable belief that the person making the request was not entitled to receive the information. To the best of our knowledge there have been no prosecutions under S.173 to date. It remains to be seen whether the Information Commissioner will face the same problems, as under S.77 FOI, in relation to bringing proceedings. However, she has brought a successful prosecution under S.170 DPA 2018 which relates to the unlawful obtaining of personal data.

This and other FOI developments will be discussed in our FOI workshops which are now available as an online option. If you are looking for a qualification in freedom of information, our FOI Practitioner Certificate is ideal.

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A Matter of Priorities: FOI and DP Deadlines in a Pandemic

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Photo by Oladimeji Ajegbile on Pexels.com

Responding to the Covid-19 pandemic is stretching our public services. Most obviously the NHS is diverting all the resources it can to meeting critical health needs. But local authorities are also struggling to maintain vital services in the face of unprecedented demands and staff who, if not already ill and self-isolating, are obliged to comply with social distancing measures. Other public authorities are facing logistical challenges in maintaining services and some are even having to put some staff on HMRC-funded furlough.

In such challenging circumstances, where does dealing with information requests under Freedom of Information and DataProtection laws sit in the scheme of priorities? Many authorities who are fortunate enough to have staff dedicated to handling FOI requests or data subject access requests will have re-tasked them to undertake more business-critical roles. Where staff have information request handling as only part of their role, other more pressing duties are likely to trump FOI and DP timescales. And where staff are working from home and access to premises either discouraged or forbidden, manual records may remain inaccessible for weeks or months to come.  Where requests are made by post, they may be delivered to offices which will not be staffed for some time.

The response of the Scottish Government has been robust. On 1 April 2020, the Scottish Parliament passed the Coronavirus (Scotland) Bill which, while retaining the statutory requirement to “respond promptly”, extends the timescale for responding to requests under the Freedom of Information (Scotland) Act 2002 from twenty to sixty working days. Moreover, Part 2 of Schedule 6 provides a mechanism for the Scottish Ministers to allow Scottish public authorities to extend the timescale, subject to providing written notice to the applicant, by a further forty working days, where the authority “determines that it is not reasonably practicable to respond to the request within the relevant period because of…  (a) the volume and complexity of the information requested, or (b) the overall number of requests being dealt with by the authority at the time that the request is made.”

The emergency legislation also allows the Scottish Information Commissioner to find that a public authority has not failed in their duties under FOISA if he is satisfied that the failure to respond within timescales was due to the impact of coronavirus and reasonable in the circumstances. The Scottish Information Commissioner for his part is keen to remind public authorities that their duty to respond promptly remains, that the measures are temporary, and that they do not extend to the Environmental Information (Scotland) Regulations 2004 (EISR).

Of course, the Scottish Parliament cannot legislate with regard to data protection (where EU and UK legislation applies) nor can it amend the timescales for requests under the EISR as they implement the obligations of the Aarhus Convention. But as far as they can do so, the Scottish Government and Parliament have sought to relax the demands of information requests in the face of the pandemic.

For data subject access requests under GDPR (or s 45 of the Data Protection Act 2018 where they relate to law enforcement processing) and requests under the Freedom of Information Act 2000, there is no relaxation of the law. This was despite the call to do so from some quarters, including the Local Government Association who called on Parliament to include measures “temporarily relaxing the requirements on councils in regard to GDPR and FOI”. We rely instead on flexibility from the Information Commissioner as regulator.

While the UK Government did not take the opportunity of the Coronavirus Act to take extend time limits(and would be unable to do so in any case with regard to GDPR as we are still in the transition period), the ICO has made clear they will not penalise organisations who have made understandable decisions to prioritise other tasks. As they state on their website, “We are a reasonable and pragmatic regulator, one that does not operate in isolation from matters of serious public concern. Regarding compliance with information rights work when assessing a complaint brought to us during this period, we will take into account the compelling public interest in the current health emergency.”

Organisations should therefore be reassured that they are unlikely to face official censure or significant public criticism if they make reasonable decisions to prioritise other tasks to protect and serve the public ahead of normal levels of service for FOI requests and subject access requests. If your organisation, almost inevitably, is finding it difficult to meet the timescales at this difficult time, we would suggest you take a common-sense and measured approach:

  • Make a record of your decisions to re-allocate resources from handling information rights requests to other service-delivery priorities;
  • Document the practical challenges (such as inaccessibility of manual records or post, and unavailability of key colleagues) which mean that it is “reasonable in all the circumstances” that the organisation is not able to meet normal levels of performance;
  • Manage the expectations of applicants through your website and in your acknowledgements of requests and your automated email responses, and continue to communicate with applicants as far as you are able to do so;
  • At the point at which your organisation, and the rest of humanity, is beginning to recover from the Covid-19 emergency, develop and document an action plan for addressing any backlog of requests which has built up.

At Act Now, we are passionate about the importance of information rights: They are at the heart of our democracy and our human rights. But the right to life must take priority over others, and we would be the first to recognise that organisations and individuals must make decisions which put people first, particularly at a time of global emergency.

Be kind and stay safe.

More on this and other developments in our FREE GDPR update webinar. Looking for a GDPR qualification from the comfort of your home office? Our GDPR Practitioner Certificate is now available as an online option.

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Calling all Information Governance Experts: We are Hiring

We Are Hiring

Are you an information governance expert with a proven track record of delivering engaging training on GDPR, FOI or Cyber Security? Act Now Training is recruiting trainers to join its team of experts who deliver in-house and external training courses throughout the UK.

Despite expanding our team recently, we are facing heavy demand for our courses and consultancy services from the both the public and private sector. With more courses planned for 2020, including some new ones like Key Skills For Data Protection Officers, we need more talented trainers who enjoy the challenge of explaining difficult concepts in a practical jargon-free way.

We have opportunities for full time trainers as well as those who wish to add an extra “string to their bow” without leaving their day job. What is important is that you are enthusiastic about GDPR, FOI or Cyber Security and want to deliver innovative training (not “death by PowerPoint”) to a range of audiences.

We are particularly interested in experienced Cyber Security trainers where we are facing a lot of demand after launching our Introduction to Cyber Security workshop. The health sector is also a focus area for us in 2020. Our workshops on GDPR, the role of SIROs and Caldicott Guardians have led to more interest in this area.

If you think you have what it takes to become an Act Now trainer, please get in touch with your CV explaining your knowledge and experience of delivering training and consultancy services in GDPR, FOI or Cyber Security. A full privacy policy can be read on our website.

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Reflections of an Act Now FOI Trainer

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Susan Wolf writes…

They say time flies when you are having fun. Well, I must have been having fun because I can’t quite believe I have been training with Act Now for over 12 months. Really where has the time gone? During my time at the University of Northumbria I developed the habit of keeping a journal in which I reflected on my teaching. Old habits die hard and I have continued this practice now that I am a regular Act Now training consultant. Looking back over my journal for the last 12 months a number of common themes became apparent. I thought it might be interesting to share these. However before I do, I just want to thank all the delegates I have met for challenging me, keeping me on my toes and reminding me how interesting life can be in Freedom of Information Land.

Training practitioners is not something new to me. For over 11 years I taught FOI practitioners on the Northumbria University LLM in Information Rights Law & Practice Degree. However, the Act Now courses, with their focus on practical training have exposed me to a wider range of people, from a wide range of public sector organisations, all trying to get to grips with broadly similar issues. From the most experienced practitioner who wants a ‘top up course’ to the absolute beginner who has just landed their first job in information rights, all practitioners appear to share some common concerns and worries.

There are also some widely shared misconceptions which still seem to cause the odd debate, despite the Freedom of Information Act 2000 being almost 15 years old. For instance, I have heard some delegates say that the ‘clock start’s ticking’ on a FOI request on the day it is received by a public authority. I have also heard delegates talk about fines that the ICO can impose for breaches of the Freedom of Information Act. Those are always good to correct, and it is nice to hear the sigh of relief when they are advised correctly on these points.

However, I also frequently get asked questions that there are, quite simply, no definitive answers to. In good ‘lawyer’ tradition I could say ‘well that depends’ but that isn’t always what people want to hear. For example, I have been asked questions about how far a public authority must go in advising and assisting an applicant, or how many times they need to go back to the applicant to clarify a tricky request. Another question that taxes people is how long it is reasonable to wait between requests before engaging S. 14 (2) for repeated requests. These are always good for some discussion, but often time is limited on a one-day course, particularly when delegates quite rightly expect we cover all the course content.

Other misconceptions or worries centre on issues relating to the redaction of staff names in email correspondence; how to distinguish between ‘business as usual’ questions and FOI requests; or the significance of ‘confidentiality’ markings on information provided by third party contractors. The ‘new’ Freedom of Information 2018 Code of Practice addresses some of these issues. However not all FOI practitioners are necessarily aware of the provisions of the new Code. Of course, it is difficult for practitioners, who are undoubtedly over-burdened, to keep up to date and on top of things, or indeed for us to cover these issues in detail in a one-day course. One way of keeping up to date is to read our Act Now blogs, which are all written by Act Now consultants and which deal with new developments and case law. However, this journey of reflection has made me realise that it would be useful to write some ‘Back to Basics’ blogs that address some of the issues and concerns that I know FOI practitioners share. Over the coming months we will be publishing a series of ‘FOI Basics Blogs’ on the issues raised during our one-day FOI courses starting with a blog on ‘Business as Usual or FOI Request’?

For those FOI practitioners who want to take their training and understanding to the next level, Act Now Training now offer a 4-day FOI Practitioner Certificate this course is modelled on the highly successful GDPR Practitioner Certificate and was launched in May 2019. We have now delivered it seven times and it is absolutely clear this model enables FOI practitioners to develop a more detailed knowledge and understanding of the FOI in practice. It gives delegates the chance to explore the exemptions in far more detail over two days, with Day 3 focussing on the most frequently used exemptions, including Sections 40 and 43. The course also prepares delegates for writing a Refusal Notice which forms part of the final assessment.

Delegates have given very positive feedback:

“The course was very well structured and well timed. The length of the course was ideal as this gave sufficient time to discuss all areas relating to FOI and also gave candidates ample time for discussion and study. The trainer was very supportive and the knowledge that has been imparted has enabled me to develop the FOI function with our organisation. Highly Recommended.”
JW, Heywood Middleton and Rochdale NHS

“The course was excellent and really sets you up for the exam, I would recommend it to others working in the field. I have put what I learned on the course to good use as I am a FOI and DPA Manager in a very busy post with lots of business each and every day; many of the requests are unusual. The course and now passing the exam have given me the confidence to do my job.”
JH, NI Courts and Tribunals Service

“Thank you for a great course – as always all the trainers at Act Now are extremely knowledgeable, approachable and make the learning experience really enjoyable.”
KF, St Helens Council

As you can see Delegates are enjoying the course content and delivery style. Most importantly they are able to take away their gained knowledge and apply it to their everyday role with confidence. After all, that is the purpose and objective of a course such as this. It makes me immensely proud and pleased to be able to be a part of the team that helps delegates in this way everyday and I look forward to the next 12 months.

Susan Wolf is a trainer for Act Now Training. She has over ten years experience teaching information rights practitioners on the LLM Information Rights Law & Practice at Northumbria University. All our trainers are available to deliver customised in house training, health checks and audits. Please read the testimonials from satisfied clients and get in touch for a quote.

Information Governance Experts Join the Act Now Team

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(From Left to Right: Steven Cockcroft, Craig Geddes, Barry Moult.)

Act Now Training is pleased to announce that three new highly regarded information governance experts have joined its team of consultants.

Cyber security is one of the Information Commissioner’s regulatory priorities for the coming year. This is not surprising when you consider the recent Notices of Intent (to fine) issued by the ICO. We are developing a range of cyber security courses for the coming year. First off we have launched an Introduction to Cyber Security workshop led by our new consultant Steven Cockcroft.

Steven holds accredited trainer status from the British Computer Society, PECB and APMG. He is also accredited under the GCHQ Certified Trainer scheme, delivering training in the areas of Cyber Security, Information Security, Data Protection, Business Continuity Management, Audit, Risk Management and Business Continuity Management. Steven has assisted over 30 organisations to become certified to international best practice information security frameworks including the UK Government Cyber Essentials Scheme, ISO 27001 and ISO 22301.

Act Now has been running a full programme of information governance workshops in Scotland for many years. We have boosted our team of Scottish consultants by engaging Craig Geddes who is a qualified archivist and records manager, with 28 years of experience working across the range of information governance activities. He has worked for several Scottish local authorities as Archivist, Records Manager, and Senior Information and Improvement Officer. Craig has developed and delivered training on records management, freedom of information and data protection for a number of years, and is an engaging and entertaining speaker. Craig will help deliver our current Scottish courses, both in house and external, and develop new ones such as the recently launched Public Records (Scotland) Act Now workshop.

Act Now’s portfolio of clients includes many health organisations. With a view to delivering more health focused information governance courses, Barry Moult has joined our team. Barry is a well know IG expert with many years of experience working with and advising NHS organisations. He founded and has chaired the Eastern Region IG Forum since 2003. Until August 2018, Barry was the Chair of the NHS National Strategical Information Governance Network (SIGN) group and continues to sit on the NHS GDPR working group. Prior to that, he was Head of IG and Health Records at two large NHS Acute Trusts and was recently on a secondment to a local STP looking at information sharing and GDPR for Health and Social Care.

Barry will be delivering our health focused workshops on GDPR and the role of SIROs. Barry has also developed a new workshop for Caldicott Guardians to help them understand and apply the Caldicott Principles and the common law duty of confidentiality in a Health and Social Care setting. He will also look at the legislative requirements (e.g. GDPR) how they apply to patients’ records and what to consider when making moral and ethical decisions. There will also be discussion around how the Caldicott Guardian interacts with the Information Governance Lead, the Data Protection Officer and the Senior Information Risk Owner (SIRO).

The latest recruits boost the number of Act Now consultants to thirteen. Ibrahim Hasan, solicitor and director of Act Now Training,  said:

“I am pleased that Steven, Craig and Barry have joined our wonderful team of consultants who all have a reputation for explaining difficult subjects in a simple jargon-free way. Their knowledge of information rights coupled with real world experience will help us expand our services and deliver even more courses to our rapidly expanding client base.”

Act Now Training is now one of the largest information governance training and consultancy companies in the UK with over 17 years of experience in the sector.  Our trainers are available to deliver customised in house training, health checks and audits. Please read the testimonials from satisfied clients and get in touch for a quote.

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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.

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.

Aberdeen NOW! Act Now Training comes to Aberdeen!

Aberdeen

Are you based in Aberdeen? Is travelling to Edinburgh time consuming and expensive? Well we have some great news for you… Act Now Training is coming to Aberdeen!

Act Now Training is the UK’s leading provider of seminars and workshops on all aspects of Data Protection, Freedom of Information, Surveillance Law and Records Management. We are pleased to announce new workshops in Aberdeen which:

· are very competitively priced at just £265 plus vat

· run for a full day from 10am to 4pm

· refreshments and lunch provided

· include comprehensive delegate training materials

Log on to our website or click on the links below for all our available courses coming up in September. Book early to avoid disappointment.

Data Protection Act: An A-Z Guide

Freedom of Information (Scotland) Act: An A-Z Guide

Practitioner Certificate in The Freedom of Information (Scotland) Act

Managing Subject Access Requests

All our courses will be held at the Jury’s Inn Hotel. Adjoining the Union Square Shopping Centre, this modern, city-centre hotel is a 3-minute walk from Aberdeen Railway Station making it the perfectly placed, centrally located venue for all your training needs.

We look forward to seeing you!

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.