Tag: Freedom of Information

Disclosure of Staff Names under FOI

Most_Popular_Male_Names

When considering request for information under the Freedom of Information Act 2000(FOI) public authorities often face a dilemma about disclosing names of staff.

Names are generally considered to be personal data, being information relating to living identifiable individuals (as defined by the Data Protection Act 1998 (DPA)). (Although one Information Tribunal (as it was known then) decision, Harcup v Information Commissioner and Yorkshire Forward (EA/2007/0058), ruled they are not. (See episode 11 of my FOI Podcasts for a full discussion of this decision). Therefore the exemption under section 40(2) (third party personal data) will have to be considered.

For this exemption to be engaged a public authority must show that disclosure of the name(s) would breach one of theData Protection Principles. Most cases in this area focus on First Principle and so public authorities have to ask, would disclosure be fair and lawful? They also have to justify the disclosure by reference to one of the conditions in Schedule 2 of the DPA (as well as Schedule 3  in the case of sensitive personal data). In the absence of consent, most authorities end up considering whether disclosure is necessary for the applicant to pursue a legitimate interest and, even if it is, whether the disclosure is unwarranted due to the harm caused to the subject(s) (condition 6 of Schedule 2)?

The seniority of the staff, whose names are being requested, will of course be a key factor in deciding whether disclosure is fair. The first Information Tribunal decision on this issue, back in 2007, (Ministry of Defence v Information Commissioner and Rob Evans (EA/2006/0027)) concerned a request made by a journalist for a staff directory which included the names and contact details of individuals working for the Defence Exports Services Organisation. The MoD refused to disclose the information citing, amongst others, the exemption under section 40(2).

The Tribunal ruled that that the MoD could only withhold names of staff if they are particularly junior (below Civil Service B2 Level), not immediately responsible for the requested information and their name is not already available elsewhere (or would be expected to be through their performing a public-facing duty); or there is a clear and demonstrable threat to that individual’s health and safety if their name is made public.

As is clear from the MoD decision, seniority is just one factor to be taken into account. Public authorities should avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. When it comes to the disclosure of names, what matters is what work the individuals are doing, rather than their seniority or grade. If a person is in a front facing role and his/her name is already in the public domain, then it will be difficult to withhold it.

In 2008 another Tribunal decision (The Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friend of the Earth (EA/2007/0072) examined whether names of private sector employees attending a meeting should be disclosed as well as those of civil servants. The request was for information about meetings and correspondence between Ministers and senior civil servants in the Department of Business, Enterprise and Regulatory Reform and employees from the Confederation of British Industry. Some of the documents relevant to the request included references to individuals who had attended such meetings as spokespersons or as note takers or bystanders. The Tribunal summarised the position as follows:

a. Senior officials of both the government department and lobbyist attending meetings and communicating with each other can have no expectation of privacy. The officials to whom this principle applies should not be restricted to the senior spokesperson for the organisation. It should also relate to any spokesperson.

b. Recorded comments attributed to such officials at meetings should similarly carry no expectation of privacy.

d. In contrast junior officials, who are not spokespersons for their organisations or merely attend meetings as observers or stand-ins for more senior officials, do have an expectation of privacy. This means that there may be circumstances where junior officials who act as spokespersons for their organisations are unable to rely on an expectation of privacy;

e. The question as to whether a person is acting in a senior or junior capacity or as a spokesperson is one to be determined on the facts of each case.

f. The extent of the disclosure of additional information in relation to a named official will be subject to usual test i.e. is disclosure necessary for the applicant to pursue a legitimate interest, and, even if it is, is the disclosure unwarranted due to the harm caused to the individuals by disclosure? This will largely depend on whether the additional information relates to the person’s business or professional capacity or is of a personal nature unrelated to business.

In January 2011, the First Tier Tribunal (Information Rights) considered disclosure of names in Dun v IC and National Audit Office (EA/2010/0060). The disputed information concerned the NAO’s enquiry into the FCO’s handling of employee grievances of a whistleblowing variety. The Tribunal was clear that no blanket policy should apply, and that fairness depends on the particular responsibilities and information with which the case is concerned. This decision is discussed in detail in episode 21 of my FOI Podcasts.

Where there is a risk to staff safety if their names are disclosed, then the public authority will be right to err on the side of caution. In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant requested the dates of pre-hunt meetings in the last five years and the names of police officers attending pre-hunt meetings with organisers of the Isle of Wight Hunt. The Police responded, providing dates, but refusing to disclose the names of the officers in attendance.

The Commissioner considered the section 40(2) exemption and concluded that the disclosure would result in a breach of the First Data Protection principle.  He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers. The Tribunal upheld the Commissioner’s decision.

Don’t forget condition 6 of schedule 2 of the DPA. A public authority will have to consider whether disclosure of a name is necessary for the applicant to pursue a legitimate interest, and, even if it is, whether the disclosure is unwarranted due to the harm caused to the individual by the disclosure.

A more recent Tribunal decision (January 2013), McFerran v IC (EA/2012/0030) involved a police search of a property owned by Shropshire County Council. At the police’s request, two junior council officers were present, but they had not been involved in any of the decision-making. The requester wanted the names of the council officers as well as their immediate superior. The council refused, relying on s. 40(2).

The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The Tribunal agreed with this decision and dismissed the requester’s appeal, observing that:

“although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

This decision illustrates that, when it comes to junior officials, the requestor will have to show that there is legitimate interest in knowing the names of officers where they are junior. A general argument about openness and transparency will not suffice.

In Armit v IC and Home Office (EA/2012/0041) the UKBA redacted the names of the officials in a document entitled ‘Tourist Selection Indicators and Selection Techniques’ which fell within the scope of the request. The Tribunal agreed with this approach, taking account of the requester’s failure to identify a legitimate interest in public disclosure of the names of those officials:

“We do not accept the argument that the officials would not have expected their names within the document to be made public and were not given compelling evidence of this. We were given no information as to their specific grading but they were described in the document as ‘lead contributer’ and ‘lead postholder’. They clearly have some responsibility in relation to the work.  We were given no compelling evidence that disclosing their names would result in victimisation, insult or any form of danger.  However, we do accept that the officials would prefer not to have their names identified and that might in itself represent a certain right and freedom or legitimate interests in itself. In any event, to process personal data, it needs to be necessary to pursue the purposes of legitimate interests pursued by others.  In this case, we do not find that the Appellant has shown any legitimate interest in the names of the officials being disclosed to the public under FOIA. We conclude that the information is therefore exempt from disclosure.”

Another recent Tribunal decision on the disclosure of names is Roberts v IC and Dyfed Powys Police Authority (EA/2012/0032).

The issue of disclosure of names pursuant to an FOI request is a difficult one. As can be seen from this discussion of Tribunal decisions, a number of different factors have to be weighed in the balance. A blanket approach will not work.

Whilst on the subject of names, does an FOI requestor have to give his/her real name? Read the answer here  as well as a really bad joke!

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshop  on 13th March 2013.

Do you want an international recognised qualification in FOI?                           The ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March 2013.

Can Spiderman make a Freedom of Information request?

Has your public authority ever received an FOI request from Justin Case, Barb Dwyer or Stan Still? Would these even be valid requests? According to a survey of FOI officers published by the Constitution Unit, the average council receives 47 information requests a month. The media now make around a third of all requests but members of the public still account for the most number at 37%. Increasingly FOI officers come across unusual names when dealing with such requests.

Can the use of an apparently fictitious name or pseudonym invalidate an otherwise valid FOI request? Section 8 of the Act states that a request must be in writing, state the name of the applicant and an address for correspondence and must describe the information requested. Most FOI officers I have trained seem to think that they have the right to ask for the “real name” of the requestor. According to the Information Commissioner’s Guidance  this view is correct:

“…the use of a false or fictitious name is not acceptable. Therefore, where a public authority receives a request from a person using an obvious pseudonym, there is no obligation to comply with the request;”

The Guidance goes on:

“In most cases, it will be reasonable for a real name to comprise a name by which the person making the request is widely known and/or is regularly used by that person and which is not an obvious pseudonym or fictitious name.”

The Commissioner does explain later that a common sense approach should be taken. Even when an obvious pseudonym has been used, as good practice a public authority should still consider the request even though technically it can be regarded as invalid. He advises that this approach could be adopted in cases where identity is not relevant to the request and, in view of the general principle in FOI of disclosure to the world at large, where the authority is content to disclose the information.

I think the Commissioner’s guidance is flawed in that it encourages public authorities to focus too much on the identity of the requestor and not on the information being requested.  Let us go back to basics.

Section 8 only requires the applicant to state his/her name. I have always advised clients that a name is a just what the requestor chooses to call him/herself. The Commissioner’s guidance encourages the public authority to speculate whether a given name is a pseudonym or fictitious. How can a public authority be sure that a given name is so? Where can it check that a name is real? I am not aware of any comprehensive official register of names in the UK. And not everyone is on the electoral roll.

The names in the first paragraph of this article are real names uncovered by researchers from a parenting group after trawling through online telephone records. Other they found include Pearl Button, Jo King and Tim Burr.

In any event a public authority cannot insist on a real or “proper” name from an FOI requestor as there is no such concept in English Law. A person can call themselves anything. They are not restricted to what is on their birth certificate. People change their name by deed poll (though they do not have to use such a document) to fit in with their lifestyle or to emulate their favourite celebrity. If a public authority receives an FOI request signed “Amy Winehouse” or “Michael Jackson” are they going to reject it or ask for proof that the King and Queen of Pop have risen again? What about a request from Facebookdotcom Forwardslash Mountaindew UK? These are all real names of living people.  (Honest! Click Here )

When researching this article, I found some interesting (and real) names on The Monster Raving Loony Party’s list of 2010 election candidates . Step forward Mr Nick The Flying Brick Delves, Chinners Chinnery and Hairy Knorm Davidson. If the Commissioner’s advice is correct, it seems that these names are real enough to allow the user to stand for election to the Mother of All Parliaments but not real enough to make an FOI request (without providing documentary evidence).

In 2011 a council purportedly claimed that the Information Commissioner’s Office (ICO) had backed its stance of asking an FOI requester to prove his identity. Upon receiving a request from a Buck U. Fogal, for expenditure over £500 for the clearance of three streets, the council asked for two forms of identification.  In its response to the requestor, it seemed to be implying that the ICO had agreed with this approach. If this is true, it is not in accordance with the Act. Another council has it seems been implementing an equally dubious system of randomly seeking proof of identity .

FOI is applicant blind and so the identity of the requestor should not be an issue. There are 23 exemptions under Part 2 of the Act, which can be relied upon if there is a problem in disclosing the requested information. A public authority cannot and should not ask who is making the request. There are exceptions to this general rule of course. For example where the requestor is asking for personal data (section 40). Sometimes the use of a pseudonym together with other factors such as volume and frequency of requests many lead to a request being deemed to be vexatious under section 14 of the Act (see the Tribunal Decision in Duke v IC and University of Salford (EA/2011/0060 26th July 2011). But these are exceptions and not the rule.

My advice to public authorities is, if you get an FOI request giving a name which you believe is fictitious then treat it is a valid request and focus on whether a Part 2 exemption from disclosure applies.

So back to the question posed at the start of this article; can Spiderman make a Freedom of Information request?

The answer is no… but just tell him to the look on the Web! (boom boom!).

Ibrahim Hasan will be latest FOI developments and cases in his FOI Update workshop in Birmingham on 13th March. For those wanting an international recognized qualification in FOI, the ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March

Council Housing Information and FOI

Terraced Houses

Local authorities have, over the years, received many FOI requests for information about properties in their area. Requests have been made by, amongst others, squatters’ rights campaigners for lists of empty properties and by others for council property addresses where they wish to contact council tenants for various reasons e.g. to persuade them to vote against a housing stock transfer.

Council Property Addresses

Back in 2007, a Comissioner decision involving Braintree District Council concerned a request for a list of addresses of properties owned by the council. This was refused under section 40 i.e. that the information in question constituted third party personal disclosure of which would constitute a breach of the data protection principles.

The Commissioner considered that no such breach would occur and that it was threfore not correct to rely on the exemption. Although he accepted that there would be unfairness to individuals if they were publicly identified as members of a vulnerable group (e.g. asylum seekers, benefit recipients or women who have left violent partners) he did not consider that there would be any general unfairness to individuals in being identified as council tenants. In taking this view, he was mindful of the low inherent sensitivity of the data and that in practice the fact that a particular property is or is not owned by the council will be generally known to neighbours or because it is part of a known council housing estate. However, the Commissioner was willing to accept that there may be particular properties which are not generally known to be owned by the Council, the disclosure of the addresses of which might result in unfairness to some individuals. If for instance, the council had housed some vulnerable individuals at a secret location and this fact could be inferred from the address, then the Commissioner would accept that this information could be withheld. (See also the Decision Notice involving Mid Devon District Council (04/05/2006) (discussed in episode 4 of my FOI Podcasts).

A more recent Tribunal decision (September 2012)contains the same reasoning. In Exeter CC v IC and Guagliardo (EA/2012/0073) the council challenged the Commissioner’s decision to require disclosure of all properties, residential and business, owned by or leased or rented to the council. The only exception to this was any property which was used to house individuals requiring protection in a secret location.

The Tribunal dismissed the appeal stating that the low level sensitivity of the information, coupled with the fact that most of the information was already available through public sources (albeit not in one tranche), meant that it would not be unfair or breach the data protection principles to disclose the information. The Tribunal dismissed the argument that the information could be used by marketing companies as much of the information was already available through purchase of the edited version of the Electoral Roll. Therefore the exemption in Section 40 (personal data) could not be relied upon.

Contrast the above decision with Anthony Turcotte v Information Commissioner and London Borough of Camden(12 June 2008)where the appellant challenged the council’s decision to disclose redacted addresses of housing association (CHG) properties. The council had removed house and flat numbers on grounds of personal data (section 40).It argued that to disclose the full addresses of the properties, when taken with Electoral Roll information, would allow individual occupiers to be identified. Because the qualification criteria for housing by CHG included homelessness or significant housing needs, the data would permit individuals to be identified as part of a distinct and potentially vulnerable group. The Tribunal agreed with this approach.

In the light of the above decisions it seems that, in the absence of case specific reasons e.g. properties being used to house vulnerable people, information about which properties in an area are owned by a council is disclosable under FOI.

Empty Properties

Access to information about empty properties has always been a contentious issue. On the one hand local authorities holding such information claim that, if it is released, the properties will be targeted by squatters, criminals and drug addicts. They claim the information is exempt under section 31 (disclosure would be likely to prejudice the prevention or detection of crime). On the other hand, housing charities argue that it is unjust that there are thousands people living on the streets just next to properties which they could easily and cheaply occupy. The charity Empty Homes says that while there are about 730,000 unused properties in England and 930,000 across the UK, there are 1.7 million families on waiting lists for social housing in England and 2 million in the UK.

There have been a number of decisions over the years by the Commissioner and the Tribunal on this issue.In England and London Borough of Bexley v Information Commissioner (EA/2006/0060 & 0066) the Information Tribunal (as it was known then) reviewed the decision of the Information Commissioner to order Bexley Council to disclose the details of all empty properties in its area, together with the reasons why the properties are empty, and who owns them. The Tribunal ruled that those properties owned by anyone other than individuals should be disclosed together with details of ownership. Whilst it accepted, contrary to the Commissioner’s view, that the section 31 exemption was engaged it ruled that the public interest in disclosure was greater. However details of properties owned by individuals should not be disclosed as it was personal data and so exempt under section 40. Disclosure of this information would be unfair to the individuals as their properties could be targeted by criminals and squatters.

A more recent decision by the First Tier Tribunal (Voyias v IC and LB Camden (EA/2011/0007) ordered Camden Council to disclose, to a former member of the Advisory Service for Squatters, lists of empty properties meeting certain descriptions. The requestor specifically excluded properties owned by individuals. The Tribunal found that, whilst the section 31 exemption was engaged, the public interest in bringing empty properties back into re use was paramount. The then Housing Minister Grant Shapps’ was not happy about this decision condemning it as a “squatter’s road map”.

Last year the Upper Tribunal in London Borough of Camden v The Information Commissioner &YV [2012] UKUT 190 (AAC), overturned the decision of the First Tier Tribunal and remitted the case to a differently constituted tribunal.Judge Jacobs’ found that the Tribunal had taken an unduly narrow view of the factors to be taken into account, when considering the public harm caused by criminal acts. It had been argued that crimes, e.g. criminal damage, would be encouraged by the publication of a list of empty properties. Judge Jacobs held that the financial and social consequences of such crimes had to be taken into account as well, even if indirect. That test also included an assessment of how existing behaviour might alter if information was released.

The Tribunal’s judgement on the remitted case was given on 22nd January 2013. This time it ruled in favour of the council; that the section 31 exemption was engaged and the public interest was against disclosure:

“…the small weight that the public interest in disclosure bears does not come close to equalling the public interest in preventing the categories of crime we have identified in this decision.”

This is a very strong decision in favour of the council and one which will be welcomed by local authorities up and down the country who feared swathes of their empty properties being occupied by squatters. However, I do not think we have seen the last of these cases.

Ibrahim Hasan will be discussing these and other FOI developments in his FOI Update workshop in Birmingham on 13th March. For those wanting an international recognized qualification in FOI, the ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March. 

Changes to FOI : Government Response to Justice Committee Report

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In July 2012, the Justice Select Committee published its report into post-legislative scrutiny of the Freedom of Information Act 2000. Running to more than 100 pages, and considering submissions from a wide range of those who operate the Act, the report is broadly summarised in its first sentence:

“Freedom of Information has been a significant enhancement of our democracy and the Act is working well. “

The Committee largely resisted calls for FOI to be amended fundamentally. It did recommend that the Government should make some (many would say modest,) changes to the FOI regime. The Government has now published its official response to the Committee’s report. It is fair to say that the Government has rejected many of the report’s recommendations. Below is a brief analysis of the main recommendations of the Committee and how the Government has responded: (For another account see the SaveFOI Campaign’s latest blog post. )

1. A Change to the Costs Regime

Many of those that responded to the Committee’s call for evidence, had expressed concern about the sheer cost of dealing with FOI requests (although the basis of calculation of some of the figures seemed highly dubious). 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.”

However, the Committee rejected the suggestion that reading, consideration ND redaction time should also be taken into account when deciding whether the 18-hour limit has been reached. The Government doubts that much will be achieved through the reduction of the costs limit. It is 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.”

At present, according to the FOI Fees Regulations, 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 states:

“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.”

2. New Research Exemption

Universities strongly argued before the Committee that there was insufficient protection for pre-publication research under FOI. The Committee took this on board and recommended that section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland under FOISA.

The Government accepts this recommendation. It says in its response (at paragraph 48), that it is minded to introduce a dedicated exemption to cover pre publication research, which would be qualified and prejudice based. However this would be reviewed at a suitable point after introduction.

3. New Statutory Time Limits

At present where a public authority wishes to extend the 20 working day time limit to consider the public interest test, or is asked to undertake an internal review of a refusal to disclose, there is no further statutory time limit (although the ICO recommends that a further 20 working days is appropriate in most cases). The Committee recommended the 20 day extension be put into statute.

The Government has rejected this recommendation in part. Whilst it acknowledges the importance of internal reviews and consideration of the public interest test being done in a timely fashion, it does not believe that time limits should be enshrined in the Act itself. It believes that these matters are best dealt with through amendments to the S.45 Code of Practice.

4. Disclosure Logs and Names of Requestors

The Committee recommended that public authorities should be required to publish more information about their handling of FOI requests and meeting deadlines. The Government felt that this would be an additional burden on public authorities at any time of financial constraints.

Surprisingly the Committee also recommended that where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it. The Government has rejected this recommendation on the basis that, amongst other things, it would risk unfair disclosure of personal data and so breach the Data Protection Act 1998.

5. Section 77 Prosecutions

The Committee recommended a change to the provisions of the Act dealing with the criminal offence of altering/erasing/concealing information. Currently this provision effectively requires the Information Commissioner to bring a prosecution within six months of the offence taking place. As often the Commissioner would not find out about an offence until well after this, the chances of bringing a prosecution have been very low. The Committee suggested (at paragraph 121):

“The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.”

The Government has rejected the idea of making the S.77 offence an either way offence and so attracting a higher fine. It proposes though that the 6 month window for prosecution should be triggered when the offence is discovered rather than when it occurs.

6. Fees for Tribunal Appeals

The Committee never considered the issue of charging fees for Tribunal appeals (which are free at present although the Tribunal has a discretion to award costs to either party). Thishas not stopped the Government (at paragraph 24)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.”

7. Extension of FOI

On the question of extending FOI to the private sector the Committee stated:

“We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.”

The Government, in its response, states that it is continuing consultations with various public sector sector bodies with a view to adding them to the list of public authorities under FOI. These include the LGA, harbor authorities and the NHS Confederation. It is also going to consult 2000 housing associations. Any additions to the list of public authorities will come into effect by Spring 2015. However, the following quote, from paragraph 56 of the Government’s response, will disappoint FOI campaigners and those who think that FOI should be extended to the private sector:

“The Government therefore does not intend, at this time, to legislate to extend FOIA obligations to contractors. In particular the Government is concerned about the potential impact on SMEs, the voluntary sector and social enterprises, but does not think that a minimum contract value threshold for formal inclusion should be adopted given that public interest does not always equate to the size of a contract.”

FOI Update webinar– This and other FOI developments and cases will be discussed in our forthcoming FOI Update Webinar.

Practically Speaking by FOIMan

Recently I was fortunate enough to be asked to take part in a panel discussion at City University about the Justice Select Committee’s post-legislative scrutiny of FOI. After each of us had said our piece, we got to my favourite part of these kind of events – questions from the audience. And one student journalist asked whether it was right that FOI Officers often shared details of requests from journalists with Press Officers in their organisations. Wasn’t it wrong that FOI Officers should feel an obligation to work with the spin doctors?

There is obviously a debate around how closely FOI Officers should work with Press Officers on FOI requests. But the thrust of my response was that FOI Officers DO have an obligation to their organisation. We do a job. Our organisations pay our wages.  Whilst many FOI Officers do take a principled approach to their work, ultimately they have to do what their employer tells them.

One of the principal aims of my blog (http://www.foiman.com/) when I started it was to talk about FOI from the perspective of the practitioner. And FOI from the practitioner’s perspective is very much a practical exercise. Hopefully it is clear from the way I write that I am a supporter of FOI and increasing openness in the public sector and beyond. But fundamentally I have to make FOI work on a day-to-day basis. That isn’t always easy.

And recently I’ve been running a training course for Act Now Training where we’ve explored what it really means to be an FOI Officer. What are the practical skills that an FOI Officer needs?

The obvious thing is knowledge of the legislation, and that technical side of the role gets plenty of attention. What needs to go into a response? How do you refuse vexatious requests? Where do you go for help?

Before we can even begin to answer requests, we need to know how to arm our organisations with the right IT systems, get our websites FOI-friendly, and ensure that records are being well managed. On the course we discuss the pros and cons of disclosure logs. Can they help reduce the volume of FOI requests or do they provoke more?

But the part of the course that gets us most animated is when we look at dealing with scepticism from colleagues. Every FOI Officer has encountered resistance from time to time, and to me, knowing how to deal with that is probably the most important part of the job. Most of the time opposition to FOI within public bodies is not about any strong political opposition to the legislation. It’s about ordinary people who care as much about their job as we FOI Officers do about ours. Or journalists do about theirs. To persuade them to adjust their priorities is a matter of patience and diplomacy. When we’re at our best!

If you’re an FOI Officer and want to go back to basics, or just explore the different aspects of your role with fellow practitioners, I’ll be running Practical FOI once more this year in a couple of weeks’ time on 16 November in London. And there will be more next year if you can’t make that date.

Paul Gibbons runs the very popular FOI Man Blog and tweets as @FoIManUK.

FOI Review : What to Expect

Last year the Justice Select Committee, chaired by Sir Alan Beith, launched a call for written evidence for its post-legislative scrutiny of the Freedom of Information Act 2000 (FOI). The Committee invited written evidence on the following issues (although those responding were free to discuss other matters):

  • Does the Freedom of Information Act work effectively?
  • What are the strengths and weaknesses of the Freedom of Information Act?
  • Is the Freedom of Information Act operating in the way that it was intended to?

The Committee has now finished hearing oral evidence. Its website contains more details including dates of hearings as well as uncorrected transcripts of evidence. Whilst much has been written and submitted to the Committee about what changes the Government should make to the FOI regime, some changes are more likely to be recommended by it than others:

1. A new exemption for Frivolous Requests

The Information Commissioner’s Office (ICO) has told the Committee (and a recent conference) that it would be in favour of an exemption being introduced to alleviate the burden of frivolous requests e.g. for zombie invasion plans.

My view is that this is a sacrificial lamb being offered by the ICO to try and deflect some of the recent criticism directed towards it. Public authorities have claimed that the ICO is not doing enough to help them at a time when they are being inundated with nuisance requests that clearly have no purpose or value. However the Committee may feel it needs to go further to address such concerns.

2. A Change to the Costs Regime

Many of those that have responded to the Committee’s call for evidence, have expressed concern about the sheer cost of dealing with FOI requests, although the basis of calculation of some of the figures seem highly dubious. It is likely that changes are made to allow more activities to be included as part of the costs limit of £450/£600 limit (under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004) including perhaps the time it takes to redact exempt information from a document before disclosing the latter.

It seems that the Government is already pre judging the outcome of the Committee’s report. According to a BBC Newsnight report on 5th April 2012, a new fees regime could be introduced to reduce the number of FOI requests. Different tariffs could be used to charge different types of requestors. For more on this read Jonathan Baines excellent guest post for the Save FOI Blog.

3. A new Cabinet Minutes Exemption

The previous Government has on two occasions used the ministerial veto (under section 53) to exempt disclosure of cabinet minutes.  On 24th February 2009 the then Lord Chancellor, Jack Straw, issued the first ever ministerial veto  (See Cabinet Office and Christopher Lamb v IC (EA/2008/0024 & 0029)) when the Tribunal decided to uphold the ruling by the Information Commissioner that minutes of cabinet meetings from 2003 discussing the Iraq War should be disclosed.  On 10th December 2009, Mr Straw did the same again in respect of a decision of the Commissioner (Cabinet Office FS50100665) requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions in 1997.

Dominic Grieve, the Attorney General, also used the veto to block release of Cabinet Minutes relating to Scottish and Welsh Devolution. Recently the Health Secretary, Andrew Lansley, caused controversy when he used the veto to block access to the NHS Risk Register. On each occasion the veto has been used, the Commissioner has issued a report to Parliament expressing disappointment. However recently he has said that if the Government feels strongly about Cabinet Minutes being kept secret then an absolute exemption should be introduced. Bearing in mind what the Prime Minister and Lord O’ Donnel (the former head of the civil service) have said about FOI recently, this is a strong possibility.

4. Other Possible Changes

Looking at the various submissions to the Committee especially those from the ICO, it is also likely that statutory limits for Internal Reviews and the public interest test are recommended to avoid delays in dealing with requests. It may also be recommended that now FOI has bedded in, the role of the Qualified Person (under section 36) be removed so that there is no delay in Refusal Notices being issued where this exemption is claimed.

The Committee is due to report before the Summer Recess of Parliament.

Ibrahim Hasan is doing a web seminar on the changes to the FOI, DPA and RIPA regime to be made by the Protection of Freedoms Act. Click Here  for more information.

Protection of Freedoms Act 2012

Protection of Freedoms Act 2012

 2012 CHAPTER 9

The Protection of Freedoms Act 2012 received Royal Assent on 1st May 2012. The Act contains a number of measures which, when brought into force, will have a major impact on public authorities especially councils. Amongst other things the Act:

Introduces a new code of practice for surveillance camera systems. This is in addition to the CCTV Code of Practice under the Data Protection Act 1998. There will also be a surveillance camera commissioner. Read our article on  the New CCTV Regime 

  • Extends the Freedom of Information Act by requiring datasets to be made available in a re-usable electronic format. Read our blog entry on how this can make you money. For details of an innovative use of a dataset click here
  • Provides for Magistrates’ approval of all surveillance activities by local authorities under RIPA. Read a full article on the changes.
  • Requires schools to obtain parents’ consent before processing children’s biometric information
  • Restrict the scope of the ‘vetting and barring’ scheme for protecting vulnerable groups and makes changes to the system of criminal records checks. Read our article

Ibrahim Hasan is doing a special online training session  on the new Act in June and July.

The Act will also:

  • bring in a new framework for police retention of fingerprints and DNA data
  • provide for a code of practice to cover officials’ powers of entry, with these powers being subject to review and repeal
  • outlaw wheel-clamping on private land
  • introduce a new regime for police stops and searches under the Terrorism Act 2000 and reduces the maximum pre-charge detention period under that Act from 28 to 14 days
  • enable those with convictions for consensual sexual relations between men aged 16 or over (which have since been decriminalised) to apply to have them disregarded

All our information and surveillance law courses will be updated to take account of the new Act. If you would like customised in house training on any aspects of the Act, please get in touch.

FearSquare : A Dataset to be Feared?

A recently launched mobile phone application provides a useful insight into what could be possible if public authority datasets are fully exploited.

Many datasets are routinely published  by public authorities and are available for re use at little or no cost. Others can be accessed by making a request under the Freedom of Information Act 2000 (FOI). The Protection of Freedoms Act 2012 , which received Royal Assent on 1st May 2011, will make access and re use of datasets much easier. Once the Act is brought into force, amongst other things, it will amend FOI so that in the future public authorities will have greater obligations in relation to the release and publication of datasets. The key points are:

  • There will be a new duty on public authorities, when releasing datasets, to adhere to any request to do so in electronic form which allows its re-use where reasonably practicable.
  • Any dataset containing copyright material (where the authority holds the copyright) must be made available for re-use under a specified licence.
  • Publication schemes will in future contain a requirement to publish datasets, which have been requested, as well as any updated versions.
  • Such datasets will also have to be published in an electronic form capable of re use and any copyright material must be available for re use in accordance with the terms of a specified licence.

On the face of it, these obligations seem onerous. However they may also bring an opportunity for public authorities to raise some much needed revenue. They will be able to charge a fee (and make a profit) for allowing re use of any datasets containing copyright material (Read Ibrahim Hasan’s detailed article on the dataset provisions).

Once datasets are released, the idea is that clever people out there will think of innovative uses for them. This may involve a “mash up” with other data. One example is Fearsquare. Its website states:

“FearSquare is an application which allows FourSquare** users in the UK to easily see the official crime statistics for the places where you ‘check-in’. The intention is to give you a uniquely individual look at the levels and types of crimes you are exposed to in your daily life.”

** If you are not “cool” and “with it” like me, go to the end of this blog post for a brief explanation of Foursquare.

Foursquare knows all the locations that a user visits most often. These may be areas with high levels of recorded crime or are known for specific types of crime. For example, a user may be contemplating walking in an unfamiliar area where there have been a lot of muggings. FearSquare aims to keep the user updated on their surroundings and the levels and types of crimes recorded nearby. After all, forewarned is forearmed!

Fearsquare takes its crime stats from the UK Police Crime Statistics database. It has a “leaderboard” of the most dangerous areas based on the crime reported. The leaderboard gives out points to the most crime-heavy areas based on the types of infractions that take place, be it robbery or weapons related crimes.The site also has a real-time ticker that displays check-ins that have unlocked crime statistics, which serves as another way of discovering places that a user should be weary of visiting alone.

Interestingly there is a “game” built into FearSquare. The bold and the brave are awarded points when they visit the most crime-ridden areas in the UK. I think I will stick to establishments offering Nectar Points!

Fearsquare is the brainchild of Lincoln Social Computing Research Centre(part of the University of Lincoln) and is part of a study looking at how this sort of personalised data could change user behaviour. It is a good example of an innovative use of an openly available dataset. Public authorities need to start work now on identifying useful datasets they hold and raising awareness amongst stakeholder departments as to how they could be exploited. This opportunity, which should not be left to the private sector alone, nor should it be the realm of those who are motivated by profit.

Now if Dorothy or Little Red Riding Hood had this app on their mobile phones, i wonder which route they would they have taken?

NB Foursquare is an application (very popular in the US, less so here) which allows users to use the location services on their mobile phone to electronically “check in” at various locations; from coffee shops, pubs and restaurants to supermarkets. More check ins mean prizes as well as the much-envied status of “mayor” of a certain location. See https://foursquare.com/about/ for more.

New Webinar– For more on this and other aspects of the Protection of Freedoms Act, join us on our one-hour online seminar: http://www.actnow.org.uk/courses/city_ONLINE

Access to Social Work Records of the Deceased

Local authorities often receive Freedom of Information Act (FOI) requests for access to the social work records of the deceased. These usually come from family members, sometimes to assist them with a dispute or a legal claim. When making a decision about disclosure, Social Services staff are required to assess the privacy of the living as well as the dead.

Sometimes the exemption under section 41 of FOI (Breach of Confidence) can be used to refuse access to information about the deceased. This applies where a disclosure of confidential information, obtained from another party, would lead to an actionable Breach of Confidence. The leading Information Tribunal case (as it was called then) on this issue (Bluck v Information Commissioner and Epson and St. Helier University Hospitals NHS Trust EA/2006/0090) concerned the disclosure of medical records to the deceased’s mother without the consent of the deceased’s husband.  The Trust’s decision to deny access, based on section 41, was upheld by the Commissioner and the Tribunal.  Both ruled that the duty of confidentiality extends beyond death. If the information was disclosed there was, in theory at least, an actionable Breach of Confidence, which would allow the personal representative of the deceased (her husband) to sue the Trust.

This case was followed by the Information Commissioner in a Decision Notice involving Trafford Metropolitan Borough Council (FS50153179 27/11/2007.)
The complainant asked to see information about her deceased mother which was contained in her mother’s social services records. The Council refused to disclose the information claiming a number of exemptions.

The Commissioner ruled that in respect of the information about and which identified the deceased’s primary carer, the Council was correct to claim the section 40 exemption (personal data). The information included references to the carer’s personal circumstances, her health and financial arrangements. The sensitive nature of the information and the fact that the carer had objected to the release of similar information held by another public authority meant that the disclosure, without consent, would be unfair.

Most of the rest of the requested information was about the deceased. The Commissioner ruled that the section 41 exemption could be claimed. Cleary this information was obtained from another party (i.e. GPs, the primary carer, the deceased etc.) but was it confidential? The Council explained that individuals enter into social services care arrangements with the expectation that the information they provide (both directly and indirectly) will only be used in connection with the provision of that care and will not otherwise be disclosed to third parties without their consent (except in very limited circumstances). The Commissioner accepted that this expectation of confidence is the cornerstone of the Council’s relationships with its clients and is vital for successful service provision. The Commissioner also accepted that the threat of onward disclosure of such information could inhibit the relationship between it and its clients, in that concerns that private information may subsequently be open to public scrutiny may cause clients to be unwilling or to refuse to disclose important information.

On the other elements of the section 41 exemption, the Commissioner relied on the Tribunal decision in Bluck (see above) to rule that the duty of confidence survived the death of the deceased and disclosure of the information would be an actionable breach of confidence. The personal representative of the deceased (the carer) had a theoretical right to sue the council.

Sometimes information being requested about the deceased includes health records which may be accessible under the Access to Health Records Act 1990 .  In such cases the exemption under section 21 of FOI may be claimed i.e. it is reasonably accessible by other means. Section 3 of the 1990 Act gives, amongst others, the personal representatives of the deceased, a right to access the health records of the deceased. Exceptions exist under section 4, e.g. where the patient had requested a note be made that they did not wish access to be given, and section 5.

Before applying the section 21 exemption, a public authority must carefully consider if the applicant indeed has a right of access under the 1990 Act as it only applies in limited circumstances. Firstly, If the requestor is not a personal representative of the deceased (or, to be technically correct, a person having a claim arising out of the death of the deceased) then they cannot access the information under the 1990 Act. Secondly the records being requested, must be health records within the meaning of the Act. A recent Tribunal decision sheds more light on these points.

In Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the requestor sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother including information about the care received by her mother at a care home she was staying at prior to her death. The requestor argued that she was the next of kin, proposed executor and trustee of one of the wills and had a valid claim against her mother’s estate under the intestacy rules.

Before the Tribunal, the requestor argued that the Commissioner had erred in concluding that the disputed information was exempt under section 41, as no actionable Breach of Confidence would arise from the disclosure of the information. The Tribunal gave short shrift to this argument and this is not surprising given previous cases discussed above. Strangely it concluded that the confidence was owed to the social workers! I would have thought that it was more owed to the deceased. After all, it was information about her care and the social workers were acting in a professional capacity.

The requestor also contended that the Commissioner should have found that the exemption under section 21 was engaged on the basis that “as next of kin and nearest relative” she would have been entitled to obtain the disputed information under the 1990 Act. The Tribunal disagreed. Whilst she was the nearest relative, she was not the personal representative and so had no rights under the 1990 Act. Furthermore the records being sought were not covered by the 1990 Act as they were not health records. Section 1 of the 1990 Act states that a “health record” is defined as a record which:

“consists of information relating to the physical or mental health of an individual who can be identified from that information, or from that and other information in the possession of the holder of the record; and has been made by or on behalf of a health professional in connection with the care of that individual” (my emphasis)

“Health professional” under the 1990 Act has the same meaning as in the Data Protection Act 1998 (DPA). The Tribunal found that social care professionals do not fall within the list of health professionals under Section 69 of the DPA.

The Trust confirmed that the information held had not been prepared by or on behalf of a healthcare professional. Therefore the Tribunal found that the requestor would not have been able to obtain the disputed information from the Trust under the 1990 Act and that the Commissioner was correct to conclude that the disputed information was not reasonably accessible by other means resulting in the fact that the section 21 exemptions would not be engaged.

This case shows the importance of local authorities and NHS organisations checking to see what is being requested (i.e. a health record or a social work record) and checking that the requestor has a right of access under the 1990 Act. If the answer to either question is in the negative then the request has to be considered in the light of section 41 (Breach of Confidence) i.e. the question has to be asked, would disclosure of the social work records lead to an actionable breach of confidence?

For more on access to information about the deceased read Ibrahim Hasan’s full article here

ISEB Certificate In Freedom of Information

June 2012 – London and Manchester

Do you want to learn about FOI quickly?

Do you want to gain an internationally recognised FOI qualification?

Do you have a limited training budget?

More Information available on our website or email us.

 

FOI Can Make You Money

Ibrahim Hasan has done a guest blog post for the Save FOI Blog. He says…

“Many public authorities have expressed concerns about the Freedom of Information Act 2000 (FOI) being “abused” by the private sector. They have cited examples of information requests where they are effectively asked to do unpaid research or to supply facts, figures and statistics, which are then repackaged and sold on for profit with little return for the authorities. Many have taken the opportunity to present evidence to the Justice Select Committee  about the cost of dealing with FOI requests. Although some of the figures cited are somewhat dubious, there seems to be groundswell of opinion that the price of openness and transparency is too high. But how many of the same public authorities have considered the forthcoming changes to the FOI regime which may well assist in defraying some of the costs?

The Protection of Freedoms Bill will provide an opportunity for public authorities to raise much-needed revenue from the licensing of some information released pursuant to FOI requests.

READ MORE: http://savefoi2012.wordpress.com/

Freedom of Information Workshops from Act Now Training Ltd
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