Tag: 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.

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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.

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.

New FOI Exemption Comes Into Force Today

file2651343124575A new exemption under the Freedom of Information Act 2000 comes into force today (1st October 2014).

One of the key recommendations of the House of Commons Justice Select Committee in its (July 2012) report into post-legislative scrutiny of the Freedom of Information Act 2000 was the introduction of a new exemption for research data. The Government accepted this recommendation in its official response late last year. (There is a brief analysis of the main recommendations of the Committee and how the Government has responded on our blog (http://tinyurl.com/pznfyex)).

Section 20 of the Intellectual Property Act 2014, which received Royal Assent on Wednesday 14 May, inserts a new qualified exemption.  Subsection 1(a) of new section 22A provides that information is exempt from disclosure if it relates to information obtained in the course of, or derived from, a programme of continuing research that is intended for future publication.  Subsection (1)(b) however, provides that the information will be exempt only if disclosure would, or would be likely to, prejudice a matter listed in that subsection.  Public authorities will not be required to confirm or deny that they hold section 22A information if, or to the extent that, compliance would, or would be likely to prejudice, any of the matters mentioned in subsection (1)(b). 

Any public authority can use this new exemption, not just universities. It mirrors the Freedom of Information (Scotland) Act 2002, which has had a research data exemption (Section 27(2)) since its inception.

Ibrahim Hasan will be conducting full day FOI Update workshop on 9th October in Manchester. He is also running the BCS FOI Certificate course in November.

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.)

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