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Your right to know: freedom of information and environmental information

The Information Commissioner’s responsibilities under the Freedom of Information Act and Environmental Information Regulations include:

• promoting good practice by public authorities;
• informing the public about the law;
• considering complaints about any alleged breach of the law;
• issuing decision notices and exercising enforcement powers to ensure compliance with the law; and
• approving publication schemes.

The Commissioner’s approach is to be independent, responsible and robust, recognising that increased transparency and accountability will encourage more effective government.

Complaints to the Commissioner

During 2005 and 2006 – the first two years’ full operation of the Freedom of Information Act – the ICO received over 5,000 complaints. When we prepared our plans for 2006/07, indications were that complaints would settle at around 190 per month. However, volumes have risen, and we actually received a monthly average of 216 cases, a total of 2,592 complaints. We closed 2,601 cases, thereby preventing a rise in our caseload.

We introduced significant process and structural changes in June 2006 which enabled us to make improvements in complaints resolution. We measure the age of cases at closure against published targets. During 2006/07 we met all these targets. In particular, over 50% of all the cases we closed were dealt with in less than 30 days (the target was 35%) with 59% of all cases closed within 90 days of receipt.

Our greatest challenge continues to be the high number of complex complaints that we receive. Once accepted, these are evaluated by team leaders and then placed in a queue ready for allocation to a caseworker. We may prioritise some cases, where the complaint might be time-critical or represent a path-finder case, resolution of which could close a number of others, or give direction on a particular topic. Cases can also be grouped if there are similarities with the parties involved or the issues raised. However, individuals bringing complex cases which do not fit into these categories are still waiting too long before we can begin to consider their complaint in detail.

Whilst improvements in complaint handling have reduced the backlog of complaints, our current level of funding for this work will restrict our ability to deliver further significant improvement.

As predicted in our October 2006 progress report, during the second half of 2006/07 we closed an increased number of older cases. During 2006/07, 16% of cases closed were over one year old. As we make inroads into the older caseload, we expect this trend to continue.

The closure figures for the first half of 2006/07 were in line with the closures for the final quarter of the previous year, which showed a steep rise in output as we dealt with our backlog of more straightforward cases. By the middle of the year, these cases were cleared. This led to a reduction in total cases closed each month leaving a core of complex cases awaiting resolution. Our caseload as at 31 March 2007 stands at 1,371.

The Commissioner has signalled his intention to be tougher with public authorities now that they have had time to become familiar with the legislation. We have started using information notices and have issued our first practice recommendation, and our more robust approach will also extend to the way in which we handle investigations.

In particular, we will be more demanding of public authorities, expecting them to be able to set out full and final arguments for withholding information in one clear submission and to respond quickly to requests for information.

Many cases continue to be resolved by informal resolution, where processes of discussion, persuasion and negotiation have produced positive results.

Where we have been unable to secure a satisfactory outcome informally, we issue a decision notice. During 2006/07 we served 339 formal decision notices, an increase of over 82% from the previous year. Many of these have brought about the disclosure of important information; others have upheld the position of the public authority.

Speeding up the process

In our October freedom of information progress report to Parliament we set out the changes in process and structure that we were implementing to deal with complaints more quickly and effectively. We are now reaping the benefits of those changes.

The establishment of the case reception unit, which carries out an initial assessment of freedom of information and environmental information regulations complaints made to the office, has streamlined our processes and case handling timescales.

The establishment of sectoral teams in our complaints division has ensured greater consistency in our approach to case handling and most importantly has created an environment which lends itself to the development of expertise within the ICO in relation to specific sectors. Teams are better able to identify related cases, enabling them to investigate a lead case where the legislation hasn’t yet been tested.

Our newly created policy team works closely with caseworkers and senior officers to establish policy lines and determine how to progress the new, novel and complex cases and issues which arise.

We have adopted a much more robust approach in relation to both our enforcement activity and the types of case which we will follow through to a decision notice. Our new approach is not to take up, or continue with, any Freedom of Information Act or Environmental Information Regulations case where no useful purpose would be served if we were to proceed to an adverse decision notice. For example, where the initial response was delayed from the public authority but has now been provided, or where a public authority has failed to respond, they provide the information following our intervention. In our opinion pursuing a complaint in this situation would mean that the request is frivolous or vexatious. Such cases will be closed, or dealt with in other ways if they appear to raise enforcement or similar issues. This was done on the basis that public authorities should now have a good understanding of the interpretation of the legislation, the application of the exemptions and the consideration and weighing of public interest arguments. They should also know and fully understand how to deal with requests and what they need to do in order to conform to the codes of practice. This more robust approach also makes sense in terms of making the most effective use of our resources and acting responsibly and proportionately as a regulator.

Monitoring performance

We post our service standards on our website every month. These are a statement of our commitment to improvement and a measure of our performance against those commitments. We have agreed key performance indicators for complaint handling, and a comprehensive performance dashboard – a single sheet which summarises our performance against all the key performance indicators.

Better staff training

We have a comprehensive induction programme in place. Following a successful pilot in July 2006, new starters have received a mixture of desk and classroom training. They are all now supported with a comprehensive procedures manual and improved knowledge management tools.

Informal resolution

Many cases have been resolved by informal resolution, where a great deal of discussion, persuasion and negotiation between complainants and public authorities, have produced positive results.

For example, the ICO received a complaint after a council refused to provide the names of streets where ‘safe houses’ for vulnerable people (such as those who had been the victims of domestic violence) were situated. The council refused saying that to provide the relatively small number of street names could compromise the safety of those in the safe houses.

The case officer considered other similar cases and asked the council for more details of the exemption and the relevant public interest factors. After considering this information, the Commissioner agreed the information should not be disclosed. The case officer then explained his reasons to the complainant who agreed to withdraw the complaint.

In another case, a complaint was received by the ICO after a parish council refused to disclose information about the parish clerk’s salary and employment.

The complaint was then withdrawn after the Commissioner proposed, and the parish agreed, to publish the pay scale rather than the precise salary.

Decision notices

As part of the ICO’s work to improve the quality of decision notices, the newly-established policy team checks notices for consistency against our established policy lines, noting any development of existing policy or novel point addressed in the decision.

We have acted on feedback from practitioners and have now improved the standard of drafting. We have also developed a decision notice template to give a clearer structure to more complex decisions, where there are often multiple issues of fact and law to explain. This enables the parties to better understand our reasoning and make a more informed decision whether to accept or appeal our ruling.

The layout of decision notices has also been improved following user feedback, so it is easier to pick out the key issues and the decision itself. This enhances the value of the decision notice as an educative tool for public authorities and other users of freedom of information.

Following feedback from users, we designed a decision notices database for inclusion in our new website, which was launched in August 2006. The database allows swift retrieval of the notices, which are searchable by case reference number, name of public authority, section of the Act, date (month and year) and status (upheld or not).

July 2006 DECISION NOTICE	The Information Commissioner ordered the Department for Trade and Industry (DTI) to release information relating to its four year investigation into allegations that British American Tobacco has been involved in smuggling in the third world.
September 2006 DECISION NOTICE	The Information Commissioner served a decision notice under the Environmental Information Regulations ordering Ofcom to provide all data on mobile phone base stations held within its Sitefinder database.
September 2006 DECISION NOTICE	The Information Commissioner upheld two complaints under the Freedom of Information Act following information requests to the Treasury and the Office of Government Commerce for the Gateway Reviews of the identity cards programme and the programme’s traffic light status.
October 2006 DECISION NOTICE	The Information Commissioner ruled, in the circumstances, that Epsom and St Helier University Hospitals NHS Trust were right to refuse access to a deceased patient’s records under freedom of information.
November 2006 DECISION NOTICE	Under the Environmental Information Regulations 2004 the Information Commissioner has ordered Doncaster Metropolitan Borough Council to release specified details of aircraft noise levels for November 2005 resulting from aircraft movements at Robin Hood Airport.
November 2006 DECISION NOTICE	The Information Commissioner decided that the Department of Health incorrectly applied exemptions and ordered that the Wells report into the National Health Service University be released within 35 days
December 2006 DECISION NOTICE	The Information Commissioner decided that the BBC was wrong to argue the Act did not apply to them when a complainant asked how much its staging of the Children in Need charity appeal programme cost in 2005 - and how much individual presenters including Terry Wogan, Eamonn Holmes and Natasha Kaplinsky were paid.
December 2006 DECISION NOTICE	The Information Commissioner upheld a Freedom of Information complaint against The National Archives relating to the 1911 census. The Commissioner stressed that this decision must be confined to the circumstances relating to the information requested in this case. It was not a decision that the entirety of the 1911 census must now be disclosed, nor did it create a precedent for other requests for information within the 1911 or other census schedules.
January 2007 DECISION NOTICE	The Information Commissioner ordered Defra to release ministerial advice concerning salmon fishing on the River Teign in Devon. The Commissioner considered the arguments put forward by Defra but also found that there were strong public interest arguments in favour of releasing the information. For instance, making the information public would help demystify the process by which a minister is informed of, and arrives at, a decision on an environmental issue. It would also promote greater transparency and accountability of decision making in government. Furthermore, the material may well be of interest to people in the local area, especially as any change in the use of the river could affect the local economy
February 2007 DECISION NOTICE	The Information Commissioner published two decision notices ordering two local authorities to disclose how pension funds are being invested. The Commissioner concluded the information should be disclosed because, in these instances, the public interest in knowing that public funds are being invested wisely overrides the public interest in protecting confidentiality.
March 2007 DECISION NOTICE	The Information Commissioner ordered the London Borough of Camden to release details of the identities of some residents who have been made the subject of Anti-Social Behavioural Orders (ASBOs).

Handling vexatious requests

While giving full support to individuals seeking to exercise the right to know responsibly, we are sympathetic towards public authorities receiving specific requests which impose a heavy burden on their resources, particularly where the public interest in the disclosure of the information is limited. The Freedom of Information Act recognises that there are limits to compliance beyond which public authorities are not obliged to go and we encourage the appropriate use of these provisions by public authorities. We will shortly be developing further guidance on vexatious requests.

 

In March 2007 the Information Commissioner ruled that the BBC was justified in refusing requests for information under the Freedom of Information Act on the grounds that the requests were vexatious. Following the introduction of the right to know in January 2005, the BBC received approximately 90 requests relating to the authority’s hospitality expenditure and employee expenses claims during a short period of time.

In February 2007 the Information Commissioner concluded that the West Midlands Passenger Transport Executive (Centro) was entitled to refuse to answer a request for information on the grounds that it was vexatious. Between January and November 2005 the same person made 15 requests concerning the authority’s financial relationship with four bus companies.

Cost limits

From a total of over 500 Decision Notices we have issued since January 2005, 20 related to complaints where the cost limit was an issue. Several of these cases also involved a failure by the public authority to give appropriate advice and assistance to the requester to enable the request to be modified, so as to bring it within the cost limit. In all but two of these cases the ICO was satisfied that there was evidence to support the estimate for compliance with the full request, so the decision that the cost limit would be exceeded was justified.

DECISION NOTICE December 2006 - The complainant requested information concerning submissions made to the Scott Inquiry. The Ministry of Defence stated that it was not possible to confirm or deny whether information relevant to the request was held without exceeding the relevant cost limit of £600. The Commissioner accepted that to be the case.

Appeals to the Information Tribunal

The Information Tribunal, to whom complainants and public authorities can appeal if they are unhappy with our decision, continues to make rulings which provide useful commentary and interpretation.

Since 1 January 2005, 27% (127) of our decision notices have been appealed. Of those cases that have concluded, the outcomes were as follows:

Appeals withdrawn	32% (17 cases)
Appeal dismissed	47% (25 cases)
Appeal allowed/partially allowed	21% (11 cases)

The Tribunal has substituted the Commissioner’s decision in seven of the cases it has ruled on. Public authorities brought 23% (29 cases) of the appeals and complainants 77% (98 cases).

TRIBUNAL RULING February 2007 – The Information Tribunal ordered the release of details of MPs’ travel expenses. This upheld an earlier decision of the Information Commissioner.

In his original ruling the Commissioner recognised MPs are entitled to a private life, but as the information relates to individuals acting in an official, rather than a private, capacity it is clearly a matter of public interest.

TRIBUNAL RULING December 2006 – The Information Tribunal dismissed Derry City Council’s freedom of information appeal and ruled that the council should disclose details of an agreement between Derry City Airport and Ryanair. The ruling upholds a decision made by the Information Commissioner’s Office.

TRIBUNAL RULING January 2007 – The Information Tribunal ordered the BBC to release the minutes of their governors’ meeting from 28 January 2004. These contained details of discussions concerning Greg Dyke’s resignation from the BBC a few days earlier. The BBC had been resisting publication for two years, saying that its board would be inhibited in future discussions if members knew their comments would be published.

In overruling the BBC (and the ICO) the tribunal said there was a strong public interest in knowing why the governors had decided to press for Mr Dyke’s resignation.

International conference

In May 2006 we hosted the fourth International Conference of Information Commissioners. Over 140 delegates attended from 40 countries, including Information Commissioners, non governmental organisations, and freedom of information academics and practitioners. Delegates heard from the Slovenian Information Commissioner, the New Zealand Ombudsman, the European Ombudsman and the Director at the Office of Information and Privacy in the US Department of Justice.

Promoting good practice

The Freedom of Information Act places a duty on the Commissioner to promote good practice among public authorities, and to promote observance of the Act and related codes of practice. These provisions also apply in relation to the Environmental Information Regulations.

The focus of the Good Practice team is to liaise with public authorities and key stakeholders. The new team concentrates on:

• using existing networks and establishing new ones;
• developing and approving publication schemes;
• encouraging good practice; and
• developing guidance and memoranda of understanding.

The team continues to contribute to relevant events and conferences, and to answer enquiries.

Modernising publication schemes

Following a review of publication schemes, work is already underway to improve and develop our model schemes with the aim of encouraging the pro-active, consistent, voluntary release of routine information.

Previously, our approval of publication schemes expired four years after the date of approval. We have now decided to extend that to 2008 and are using this time to help train public authorities to improve their schemes. Public authorities are being encouraged to provide uncomplicated and swift access to information they can routinely make available.

Sector-specific guides will be produced which will include lists of core information that should be released as well as notes on good practice.

Guidance

Throughout the year we have published a number of pieces of guidance to help public authorities and individuals including:

• using the procedural codes of practice
• lifecycle of a request
• time limits for consideration of the public interest test
• time limits for internal review
• basic guide to compliance for first tier councils
• access to information about the deceased

Enforcement

We are now adopting a stronger regulatory approach, particularly in relation to those authorities guilty of systemic or repeated breaches of the Freedom of Information Act or the Environmental Information Regulations.

We launched our freedom of information Enforcement Strategy in October 2006. This aims to achieve compliance with the legislation and observance of the Codes through a combination of advice, negotiation and formal action. We continue to monitor the performance of public authorities and non-compliance issues are normally dealt with informally in the first instance. We are increasingly using information notices where the public authority is reluctant to cooperate and these have resulted in the release of information needed to progress complaints resolution.

February 2007 – We issued our first practice recommendation to Nottingham City Council indicating the steps needed to achieve compliance.

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