overview and scrutiny governance subgroup 9 december 2010
TRANSCRIPT
Manchester City Council Item 3 Overview and Scrutiny Governance Subgroup 9 December 2010
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Manchester City Council Report for Information
Report To: Overview and Scrutiny Governance Sub Group – 9 December
2010 Subject: Freedom of Information Report of: The City Solicitor Summary To report on the management of requests for information across
the Council, the relationship with Coalition Government’s proposals for increased transparency and for extending the scope of the Freedom of Information Act.
Recommendations
The Overview & Scrutiny Governance Sub Group is asked to note this report
Wards Affected: All Contact Officers: Name: Susan Orrell Name: Lynn Evans Position: City Solicitor Position: Information Governance Manager Telephone: 234 3087 Telephone: 0161 234 4415 E-mail: [email protected] E-mail: [email protected] Background documents (available for public inspection): The following documents disclose important facts on which the report is based and have been relied upon in preparing the report. Copies of the background documents are available up to 4 years after the date of the meeting. If you would like a copy please contact one of the contact officers above. 1. Report to Executive – 8th December 2004 FoIA Implementation 2. Report to City Council – 29th March 2006 Access to Information Procedure rules 3. Council’s Request Handling Code of Practice 4. Council’s Fees & Charges Policy 5. Minutes of the Overview & Scrutiny Governance Sub Group – 1st June 2010
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1.0 Introduction 1.1 The City Council welcomed the introduction of the Freedom of Information Act
and recognised the contribution this could make to the Council's commitment on openness and transparency and the promotion of public engagement in the democratic process.
1.2 The primary purpose of this report is to advise members on the management
of requests for information (RFI), including the number received, the number pending and an indication of the numbers relating to information already in the public domain, as requested by the Governance Sub Group on 1st June 2010. This report also briefly refers to the Coalition Government’s proposals for increasing transparency and for extending the scope of the Freedom of Information Act 2000.
2.0 Background 2.1 In addition to the rights under the Local Government Act 1972 (as amended)
on access to public meetings and reports, the principal statutory access rights are provided by the:
• Freedom of Information Act 2000 (FoIA)1 • Environmental Information Regulations 2004 (EIR)2 • Data Protection Act 1998 (DPA)3
2.2 The FoIA and the EIRs provide anyone with the right of access to official
information whereas the DPA gives the right of access to the subject of the data and generally protects personal information from public disclosure4.
2.3 The FoIA/EIRs are supported by three codes of practice5. Both access
regimes require public authorities to proactively publish information. This supports transparency and it is generally assumed that if more information is readily available this will limit the need for individual requests.
2.4 In 2003, the first phase of the FoIA implementation required the introduction of
Publication Schemes outlining the types of information public authorities undertook to routinely make publicly available. Individual schemes had to be submitted for approval by the Information Commissioner (IC). These schemes expired on 31 December 2008 and were replaced by model schemes developed by the IC for each sector. This arose out of an IC review of the effectiveness of Publication Schemes which highlighted the need for a consistent approach on the inclusion of information. Public authorities in each
1 FoIA 2000 – right of access introduced 1st January 2005 2 EIR 2004 – strengthened right of access introduced 1st January 2005 3 DPA 1998 – data subject’s right of access to own personal information (extended to include manual records) 4 Right of subject access under s.7 of the DPA – subject to proof of ID 5 (i) Code of Practice on the discharge of the obligations of public authorities under [Regulation 16] of the Environmental Information Regulations 2004 (SI 2004 No. 3391),February 2005 (ii) Code of Practice on the discharge of public authorities' functions under Part I [Section 45] of the Freedom of Information Act 2000, issued under section 45 of the Act, November 2004 (iii) Code of Practice on the management of records issued under section 46 of the Freedom of Information Act 2000, revised July 2009
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sector were required to adopt the model scheme from 1st January 2009 and since that time, the Council’s revised Scheme and accompanying guide has been published on the Council’s web site6.
2.5 In line with the IC’s guidance on model schemes, the Council’s guide makes it
clear that requests made to a public authority for information it already publishes should be answered within 5 working days by signposting the applicant to the available information.
2.6 The Department for Environment, Food & Rural Affairs (Defra) has also issued
advice on using the IC’s model Publication Scheme to disseminate environmental information7.
2.7 One of the benefits of the model schemes has reduced the administrative
burden on the regulator and made it much easier for the IC to assess whether authorities are complying with their obligations8.
2.8 The Coalition Government is extending the degree of information local
authorities will be required to publish. Proposals include publication of local government expenditure of £500 or more from January 2011, specifying not only what is to be published but also the format in which the data is to be made available in order to make it easier for it to be reused. Whilst these proposals do not currently have the force of law, various options are being considered requiring either no legislation, secondary or primary legislation which will have the effect of placing a legal obligation on public bodies to publish raw data about certain data sets according to specified standards9. The Ministry of Justice is separately considering extending the scope and coverage of the Act to bring in more organisations undertaking functions of a public nature10.
2.9 A separate report on the progress in relation to the Coalition Government’s
transparency agenda which is proposing a right to data (in machine readable format), as opposed to a general right of access to recorded information, is to
6 MCC Publication Scheme: http://www.manchester.gov.uk/info/200031/data_protection_and_freedom_of_information/1322/freedom_of_information/27 Defra Guide, March 2009: http://www.defra.gov.uk/corporate/policy/opengov/eir/pdf/article7report.pdf8 (i) IC Monitoring Strategy, establishing the processes and procedures the IC follows in assessing compliance with the model publication scheme across the public sector and the management of individual requests. Version 1.0 - March 2009 http://www.ico.gov.uk/upload/documents/library/freedom_of_information/practical_application/monitoring_strategy.pdf(ii) The ICO’s strategy for the discharge of its Freedom of Information Act and Environmental Information Regulations functions, Summary, V.1.0, June 2009 http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/foi_strategy_20090609.pdf9 (i) Cabinet Office Business Plan: Section 2.3 includes creation of new right to data under FoIA guidance (for example Section
45 Code or legally enforceable Publication Scheme required under Sections 19 & 20) or by amending the Act itself to strengthen the current right to information. http://www.number10.gov.uk/wp-content/uploads/Cabinet-Office-Final-Business-Plan.pdf
(ii) Communities & Local Government Business Plan: Section 3.3(II) Require publication by a Code of Practice on council transparency, through the Local Government, Planning and Land Act 1980 or other legislation Local Government, Planning and Land Act 1980, Part II, Publication of Information by Local Authorities, Section 2(2), Duty of authorities to publish information: The Secretary of State may issue for the purposes of this section a code of recommended practice as to the publication of information by such authorities about the discharge of their functions and other matters (including forecasts) which he considers to be related.http://www.communities.gov.uk/documents/corporate/pdf/1762476.pdf
10 Ministry of Justice Business Plan, Section 4.5 considering amendments to primary legislation to increase the scope and coverage of FoIA
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be considered by the Resources and Overview Governance Scrutiny Committee on 16th December 2010.
3.0 Individual rights and time limits 3.1 The FoIA creates a general right of access to recorded information held by or
for public authorities. Although any written request for information technically falls within the scope of the Act, the Council has well established procedures for handling routine business enquiries, including self contained requests for information already published by the Council.
3.2 The Council’s Information Request Handling Code of Practice11 makes it clear
that routine enquiries should be handled under normal business rules and only non routine information requests and those specifically referring to information rights legislation are to be dealt with under the Council’s Code. Appendix 1 gives a fuller explanation of what constitutes a “non-routine” request.
3.3 The FoIA/EIRs and associated codes of practice oblige organisations to meet
particular standards when responding to requests for information. These include:
• replying within a specified timescale (usually 20 working days12);
• providing the information requested or explaining why it cannot be
supplied;
• providing a complaints procedure for applicants who are dissatisfied
with the way their request has been handled (commonly referred to as
an internal review);
• dealing with internal reviews on a timely basis; and
• informing applicants of their right to complain to the IC
3.4 Under the FoIA any person who makes a request for information to a public
authority is entitled to be informed if the public authority holds that information, and if it does, to be provided with that information. Similar rights apply under the EIRs13.
3.5 A request may only be refused if one or more of the FoIA/EIR
exemptions/exceptions apply (listed in Appendix 2). Where the exemption/exception is subject to a public interest test, the public interest in
11 MCC Complex Information Request Handling Code of Practice http://www.manchester.gov.uk/info/200031/data_protection_and_freedom_of_information/1322/freedom_of_information/712 Under Section 7 of the DPA, the statutory time limit for responding to subject access requests is 40 calendar days 13 Regulation 5 of the Environmental Information Regulations 2004 states that (subject to certain conditions): “A public authority that holds environmental information shall make it available on request.” http://www.legislation.gov.uk/uksi/2004/3391/contents/made
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maintaining the exemption must outweigh the public interest in disclosing the information.
3.6 An extension of time beyond 20 working days is provided for if the requested
information engages an exemption requiring consideration of the public interest and further time is necessary to undertake this balancing test. The length of the extension is not prescribed under the FoIA. For consistency with the statutory requirement in the EIRs, the IC recommends that public authorities consider the public interest promptly and that the time taken should not exceed a maximum of 40 working days after the date of receipt14. For the same reason, the IC advises that internal reviews should be undertaken promptly and should not exceed 40 working days from the date of the request for review15.
3.7 In July 2010, the IC adopted a new regulatory action policy16. This signals a
tougher approach by the IC and sets out the measures public authorities will face where there is evidence of regular or serious failure to meet legal obligations. The IC will be making more use of regulatory powers including Enforcement Notices, Undertakings and Practice Recommendations to improve compliance, particularly where organisations fail to respond to requests in a timely manner17. Recently published guidance explains the criteria the IC uses to select authorities for assessment18. The IC has also indicated its intention to name and shame authorities it considers are failing to meet the requirement to respond to requests on time. In late October 2010, it published a list of 33 authorities (including the Ministry of Defence, the Cabinet Office and the Metropolitan Police)19. The IC intends to publish an updated list on a quarterly basis.
4.0 Management of Requests for Information (RFI) 4.1 The Corporate Information Governance Team based in Democratic &
Statutory Services is headed by the Information Governance Manager. This post holder has a wider remit in supporting the development of council wide polices on Information Governance issues, including providing legal advice on data protection law and data sharing. An important part of the Team’s role is to
14 IC Good Practice Guidance No. 4: Time limits on considering the public interest following requests for information under the Freedom of Information Act 2000, V.1.0, February 2007 http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/foi_good_practice_guidance_4.pdf15 IC Good Practice Guidance No. 5, Time limits on carrying out internal reviews following requests for information under the Freedom of Information Act 2000, V.l.0, February 2007 http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/time_limits_internal_reviews.pdf16 IC Freedom of information regulatory action policy; V.2.1, July 2010 http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/freedom_of_information_regulatory_action_policy.pdf17 IC Press release 21st July 2010, ICO takes tougher approach to FOI enforcement http://www.ico.gov.uk/~/media/documents/pressreleases/2010/ENFORCEMENT_POLICY_200710.ashx18 How the Information Commissioner’s Office selects authorities for monitoring, undated http://www.ico.gov.uk/upload/documents/library/freedom_of_information/notices/how_the_ico_selects_authorities_for_monitoring.pdf19 IC Published list of 33 monitored authorities, V.1.0, October 2010 http://www.ico.gov.uk/upload/documents/library/freedom_of_information/notices/list_of_ico_monitored_bodies.pdf
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lead on complex corporate information requests, provide best practice guidance and legal advice to Directorates in handling their information requests and internal reviews, as well as leading on complaints raised with the Information Commissioner.
4.2 All Departments are required to have designated Information Champions and
named officers who are authorised to make disclosure decisions based on a sound knowledge of the information assets held by the service and the principles underpinning the legislation.
4.3 It was anticipated that once departments gained experience in applying the
legislation, reliance on the Corporate Team would diminish. However, in the period since the introduction of the Act, the Corporate Team has either led or had some involvement in drafting responses and supporting departments in the presentation of their information, in approximately 60% of all RFI responses.
4.4 Irrespective of whether non routine information requests are received
corporately or by service areas, a record of the request must be logged on the Council’s corporate monitoring system20. This system provides for the allocation of requests, generates emails notifying designated officers of key actions/dates and for recording the outcome of the request.
4.5 Relying on the raw data extracted from the monitoring system, cumulative
statistics have been published on the Council’s web site, usually at the end of the calendar year21.
4.6 This report provides information on:
• who is making requests
• method of receipt
• number of requests
• number of requests made by the same applicants
• lapsed and pending requests
• timeliness of responses
• requests by theme
• outcome of requests
• use of exemptions/exceptions
• number & outcome of internal reviews
20 Council’s Corporate Complaints, Praise and Correspondence system (CP&C) 21 Complex Information Requests – statistics
http://www.manchester.gov.uk/info/200031/data_protection_and_freedom_of_information/1322/freedom_of_information/7
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• number & outcome of complaints to IC
4.7 Unless otherwise stated the Tables and Charts include information about “non
routine” information requests covering the period 1st January 2005 – 30th September 2010.
5.0 Who is making requests?
5.1 Except for subject access requests22, the identity of the person making an information request is not usually relevant. This is because FoIA/EIR is considered to be “applicant and motive blind” 23. Other than the applicant’s real name and address (email address is considered sufficient)24, there is no obligation on the applicant to provide further information. However, where this is volunteered or is obvious, it is possible to categorise applicants making requests as shown in Chart 1 below.
RFI APPLICANT TYPE
12%
52%
16%13%
3% 2% 1% 1%0%
10%
20%
30%
40%
50%
60%
70%
Individual Press Company Employee Politian Other PublicBody
TradeUnion
FOIA
DPA
(Recorded “non routine” information requests, January 2005 – September 2010)
22 Proof of ID is essential for subject access requests under the DPA 23 Except where considering if the request is vexatious/repetitious under s.14 or if the “appropriate limit” on an aggregated basis, is engaged under s.12 24 EIR requests need not be in writing but it is best practice to help the applicant record or confirm the request
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5.2 Excluding subject access requesters, this shows that 52% of all RFI appear to
be received from individuals with the press/media and companies submitting considerably more requests than other applicant types.
5.3 Experience has shown that requests from individuals are sometimes linked
with service related or other complaints which can give rise to hybrid requests, involving both subject access and FoIA/EIR25.
5.4 The Table below indicates how often the same requester has made a
FoIA/EIR request over the period 1st January 2005 to 30th September 2010. This identifies the number of requesters by applicant type submitting 10 or more requests.
Requesters Applicant type Number of requests
13
Press 6 Individuals 5 Company 1 Politician 1
10 - 20
2 Press 2 24 1 Press 1 28 1 Press 1 39 1 Individual 1 40 1 Press 1 95
6.0 How are requests received?
6.1 The most popular method for submitting information requests is electronically. 72% of requests are received by email and via the Council’s on line facility with 28% arriving by post.
6.2 Increasingly requests are being submitted via web sites such as ‘whatdotheyknow.com’ which in real time publish the request and the response made by the authority. (According to whatdotheyknow, 136 requests have been made to the Council via this web site).
7.0 How many requests for information (RFI) have been received? 7.1 Chart 3 shows the number of RFI by calendar year as well as the split
between subject access requests under the DPA and those under FoIA/EIR. The overall number of RFI has risen steadily year on year with the pace of increase in 2009 and 2010 accelerating sharply. (An organised campaign in 2009 accounts for the record number)26. The likely number for the final quarter
25 Combination of personal information about applicant as well as general information 26 Organised campaign requests approx 228 in 2009
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of 2010 has been estimated, consistent with experience for the same quarter in earlier years. Generally, more press/media requests are received in the run up to Christmas. Excluding the projected numbers to this year end, the Council has received 4494 RFIs since the right of access under the FoIA came into effect.
Chart 3
RFI RECEIVED EACH CALENDAR YEAR
64 99 84 113 107 6521
465 438 483
633
1199
744
249
0
200
400
600
800
1000
1200
1400
2005 2006 2007 2008 2009 2010
YEAR
NU
MB
ER
DPA rec'd DPA estimate FOIA rec'd FOIA estimate
1306
1079
746
567 537
529
7.2 The increasing number reflects growing public awareness of information rights and this trend is typical of experience in other jurisdictions after introducing new public rights of access27.
7.3 Disregarding the concerted campaign in 2009, the number of requests in 2009
and projected annual number for 2010 compared with 2008, has risen by 45%. (The reported increase in requests received by Government Departments in 2009 is 24%)28.
7.4 However, the volume alone does not reliably indicate the true extent of the
increase over these years as increasingly applicants tend to make multiple
27 UCL Report 2004: http://www.ico.gov.uk/upload/documents/library/corporate/research_and_reports/final%20document.pdf28 Ministry of Justice, 2009 Annual Statistics on (FoIA) implementation in central government notes an increase of 24 per cent in numbers received by Departments of State in 2009 compared to 2008, page 5, April 2010 http://webarchive.nationalarchives.gov.uk/20100512160448/http://www.justice.gov.uk/publications/docs/foi-statistics-report-2009.pdf
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enquiries in the same request. For logging purposes, irrespective of how many enquiries each request contains, these are treated as one request29. As these often involve different subject matters and the information is held in multiple locations, these are more challenging and resource intensive.
7.5 There are limits on the time the authority is legally required to spend on answering a request. Where it is estimated that a request exceeds the “appropriate limit” in The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (FoIA Fees Regulations)30, a public authority may decline to process the request and offer the applicant assistance in submitting a narrower request. For local government, the appropriate limit is £450 based on a standard hourly rate of £25 which equates to 18 officer hours. However, this only applies to the estimated time required to locate and retrieve the information. It is not always clear at the start of a search that the time limit is engaged until considerable resources have been invested in attempting to gather the requested information. For the purpose of the cost limit, non allowable officer time includes management and officer time spent on considering whether the information is releasable, consulting legal advisers, balancing the public interest and redacting exempt information.
7.6 Chart 4 shows the annual number of lapsed requests31 and the number of
pending requests at the end of each calendar year and at the 30th September 2010. This is a snapshot view and confirms that as the number of annual requests rises, the number of pending requests also increases.
Chart 4 Number of lapsed and pending RFI requests each year end & at 30/9/10
29 Except hybrid requests involving FoIA/EIR and subject access 30 Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the Fees Regulations) 2004/3244 31 Lapsed and withdrawn requests – lack of ID/statutory fee, insufficient information/failure to provide clarification and withdrawn cases.
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23 49 61 65128 84
33 4774
134
159
179
0
200
400
600
800
1000
1200
1400
2005 2006 2007 2008 2009 2010 *
lapsed completed pending
7.7 Chart 5 compares the overall number of RFI received by the Council with the figures available for other Greater Manchester authorities over 2005 – 2009. Although the health warning below is important in interpreting this data, this confirms that there is a general increase in the number of requests being received across Greater Manchester authorities.
Chart 5
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Greater Manchester Authorities 2005 -2009
0
200
400
600
800
1000
1200
1400
2005 2006 2007 2008 2009
ManchesterOldhamSalford *Bolton *Trafford **Tameside *RochdaleBury ***Stockport
Health Warning: * Number of requests are known to be understated for these authorities ** Trafford 2005 and 2006 only *** Bury 2008 only 2007 Total number is only partial for all authorities, except MCC 8.0 How many RFI have Departments/services received?
8.1 Chart 6 shows the distribution of RFI requests by service/departmental area over 1st September 2005 – 30th September 2010.
8.2 There has been significant organisational change over this period. For ease of reference, figures for similar service areas have been combined except where this would mask the nature of requests being received.
8.3 As the chart shows the number of RFI are not evenly spread across services, presenting a resource issue for those departments handling the greatest numbers. Democratic & Statutory Services are shown as a service area to illustrate the number of requests specifically dealt with by the Corporate Team. This is additional to the advice/support the team provides to departments in handling their own information requests and internal reviews.
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TOTAL RFI'S RECEIVED BY SERVICE DEPARTMENT
0
100
200
300
400
500
600
700
800
900
1000
DEM CEX ED /CHS
COR EO HSG CFS /ASC
NBH LEI HAT MIP /DOT
LT GAL
DEPARTMENT
NUM
BER
FOIADPA
(Recorded “non routine” information requests, January 2005 – September 2010 Note Neighbourhood Services (NBH) from 2010; pre 2007 Children’s, Families and Social Care has been combined with Adult Social Care and pre 2007 Education with Children’s Services)
8.3 The Table below gives an indication of FoIA/EIR requests which it is possible to categorise by broad theme. Further analysis is required to identify specific information types which it would be beneficial to proactively publish.
Broad theme
Staffing 475 Schools / Children 444 Roads 421 Housing 211 Access Rights 210 Finance 205 Environmental 179 Contracts/Tenders 174 Planning / Building Control 143 Land / Leases / Deeds 142 Licensing 106 Redevelopment / Regeneration 104 Personal Information - Third Party 101 Systems 82 Policies / Procedures 74 Crime related 28
8 303535 51
114
218
334
560
685 703
855 866
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Marriages 11
9.0 What are RFI response times?
9.1 Chart 7 illustrates the number of working days for responses as at 30th September 2010. This shows 66% have been answered in 20 or fewer days (with 42% answered in under 16 days) and a further 23% answered within 21 and 40 working days. The latter category includes subject access requests (where the response time is 40 calendar days) and requests where an extension of time is provided for to consider the public interest. However, 11% of requests have been answered in more than 40 days. These tend to be the more complex requests either because of the nature of the requested information and/or the fact the information needs to be sourced from multiple departments/systems.
Chart 7
RESPONSES - WORKING DAYS
42%
24%
23%
11%
1-15
16-20
21-40
41+
9.2 There is no systematic external monitoring of request handling in local government. However, the Constitution Unit based in the Department of Political Science at University College London (UCL) have conducted annual on line surveys on the impact of the Freedom of Information Act in which approximately one third of eligible authorities have participated32. Using this survey data, UCL estimate local government receives two thirds of all information requests33. Notwithstanding the need for improvement identified in the chart above, the results of the latest survey suggest the Council’s overall
32 UCL Constitution Unit FoIA Surveys: http://www.ucl.ac.uk/constitution-unit/research/foi/foi-and-local-government33 UCL Constitution Unit, FOIA 2000 and local government in 2008: The experience of local authorities in England,’ Appendix A: “Local government in Britain has been a focus of more than two thirds of all FOI requests”. December 2009 http://www.ucl.ac.uk/constitution-unit/research/foi/foi-and-local-government/2008-foi-officials-survey
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response times are broadly comparable with those reported by other local authorities and also with the latest annual statistics published by the Ministry of Justice for government bodies.34
10.0 What is the outcome of RFI? 10.1 From 1st January 2005 to 30th September 2010, 80% of all RFI responses has
resulted in the full disclosure of the requested information by the Council with 20% being either partly or fully refused under procedural or substantive exemptions. The way this information is currently recorded overstates the refusal rate and moving forward it is intended to drill down further to identify the split between requests which are partly fulfilled and those which are wholly refused.
11.0 Substantive and procedural exemptions
11.1 Where requests have been partly or wholly refused, the commonest exemptions the Council has relied on, in order of frequency35, are as follows:
• where the disclosure of third party personal information would breach
the data protection principles – FoIA Section 40(2)
• procedural reasons for example, it is estimated the officer time required
to find, locate and retrieve the requested information would exceed the
limit set out in the FoIA Fees regulations or the request is repetitious –
FoIA Sections 12 or 14.
• where disclosure would or would be likely to prejudice the commercial
interests of any person (including the public authority holding it) – FoIA
Section 43
• the requested information is reasonably accessible to the applicant by
other means – FoIA Section 21
• where disclosure would or would be likely to prejudice law enforcement
– FoIA Section 31
34Ministry of Justice, 2009 Annual Statistics on (FoIA) implementation in central government - 87% of requests answered within statutory time limits, including those subject to a public interest test extension, page 4, 29th April 2010 http://webarchive.nationalarchives.gov.uk/20100512160448/http://www.justice.gov.uk/publications/docs/foi-statistics-report-2009.pdf35 Note: a response may include more than one exemption
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• the requested information has been provided to the council in
confidence and its disclosure to the world at large would lead to an
actionable breach by that or any other person – FoIA Section 41
11.2 As explained in paragraph 2.5, self contained requests for information
published by the Council are regarded as routine business enquiries and generally would not be classed as a formal RFI. However, there are occasions when section 21 is used for information available by other means. This is likely to be the case where the request involves multiple enquiries, part of which may include information published by the Council or, where it is known the requested information is readily available from another body. For example some requests may be made to the Council for registered land information available from the land registry on payment of a fee. In such cases, Section 21 may be used either alone or, in combination with other exemptions.
11.3 The Council has applied Section 21 on 67 separate occasions. To put this into
context, over the same time period the Council has claimed the exemption to protect third party personal information 330 times and, on 223 occasions for procedural reasons.
11.4 The greater use of particular exemptions by the Council appears to be broadly
consistent with those most frequently used by the majority of other Greater Manchester authorities.
11.5 The Council aims to provide as much information as is possible and only relies
on an exemption where the refusal is demonstrably in the public interest; disclosure would breach data protection or other laws or, this is necessary on procedural grounds.
12.0 How many internal reviews have been undertaken?
12.1 If an applicant has not received or is dissatisfied with the Council’s response, they are entitled to complain. This is commonly referred to as an internal review as outlined in the Council’s Access to Information Complaints procedure, available on the Council’s web site36. Complainants may submit a request for a review no later than 40 working days after receiving the Council’s response. Over the period 1st January 2005 – 30th September 2010, the Council received 128 requests for an internal review. Excluding those withdrawn, 111 reviews had been concluded by 30th September 2010. 5 internal reviews were pending at 30th September 2010.
36 Council’s Access to Information Complaint Procedure http://www.manchester.gov.uk/site/scripts/download_info.php?fileID=5769
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12.2 Chart 8 highlights the outcome of the reviews undertaken.
Chart 8
INTERNAL REVIEWS
Upheld - 5142%
Not Upheld - 6048%
Withdrawn - 1210%
Note “Upheld” includes fully and partly upheld reviews
13. 0 Complaints to the Information Commissioner
13.1 Earlier this year in response to a FoIA request, the IC released information about the number of complaints received in 2008 and 2009 for each local authority. This published information indicates the IC received 18 FoIA/EIR complaints in 2008/09 from requesters dissatisfied with the handling of their request by the Council37. However, in the same years the IC raised only 12 FoIA/EIR complaints with the Council. This discrepancy is attributable to the fact that the IC does not always notify public authorities when a FoIAEIR complaint has been made, particularly if the requester contacts the IC prematurely before exhausting the internal complaints machinery.
13.2 Since the 1st January 2005 to 30th September 2010, the IC has raised a total of 18 FoIA/EIR complaints with the Council. These have all been informally resolved with the exception of two cases. One of these is still being considered by the IC and in the other, the IC has published a formal Decision Notice. Although the IC upheld the Council’s decision to exempt the requested information, it found that the Council was in procedural breach of sections 10 and 17 for not responding within the statutory time limit (8 days late) and for not fully explaining the terms of the exemption.
37 IC response published by Collective Responsibility http://www.collective-responsibility.net/Latest-Stuff/official-ico-foi-league-table-how-do-you-rate-128
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14.0 Summary
14.1 There is a widely held view that the more information public authorities proactively publish the fewer requests it is likely to receive. Whilst the broad themes of information requested under FoIA/EIR should positively inform the Council’s proactive publication agenda, it is questionable whether this will have a significant impact on the number of requests received in the future. Few requests are identical. As indicated earlier, not all requested information can be disclosed. Even though it is the Council’s policy to disclose information where this is in the public interest, there are occasions where the public interest is better served by withholding the information. A significant number of requests involve third party personal information and information provided in confidence which the Council would not place in the public domain. There are also times when it is necessary to apply procedural exemptions. Usually this relates to requests exceeding the cost limit on an individual or aggregated basis but more recently, the Council has had to rely on FoIA/EIR exemptions/exceptions where the request is considered manifestly unreasonable or vexatious.
14.2 Whilst greater publication of spending information may avoid some requests, it is equally possible this will result in a shift in emphasis from how much is being spent to requests for information about the nature of the spending incurred and comparisons being made with other authorities.
14.3 Under the FoIA Fees Regulations, the Council is obliged to spend up to 18 officer hours locating and gathering information on each request. Not every request involves this degree of finding time but on the other hand, non routine requests may require considerable officer time falling outside these Regulations (referred to in paragraph 7.5). Although this does not count towards the time allowable in calculating whether or not the appropriate limit is exceeded, it represents a real cost to the authority.
14.4 Unfortunately the Council’s logging system does not include reliable information about the overall management and officer time committed to handling information requests and internal reviews. Given the number of officers across the Council who may spend time finding, considering, consulting and preparing RFI responses about their service areas, apart from the Corporate Team, there are difficulties in accurately capturing this degree of information on the Council’s logging system.
14.5 The annual rise in the number of requests within current resources is putting a
strain on response times across the Council, especially at the centre and this impacts on the Council’s ability to consistently meet the required response times.
14.6 Priorities over the next year will focus on improving response times and the
recording of performance, statistical information and time recording to enable costs to be reliably identified and monitored. Further research into FoIA/EIR subjects will also be undertaken to support the Council’s publication and transparency strategies.
Manchester City Council Item 3 – Appendix 1 Overview and Scrutiny Governance Subgroup 9 December 2010
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Appendix 1
The information in this report relates only to the “non-routine” information requests. This caveat is in place because the City Council routinely publishes and makes information available on request as part of its normal business and as FOI/EIR potentially applies to all of requests, it would be impossible to capture and report on every activity.
Requests qualify as “non routine” for monitoring purposes:
1. if it is necessary to take a considered view on how to handle the request under the terms of access to information legislation
2. corporate and/or departmental officers have been advised of the request and it has been logged on the corporate system
A non routine request for information is made if it is not solely for information already published by the Council; and the response would result in any/all of the following:
(i) processing in accordance with the requirements of section 7of the DPA
(ii) considering the full or partial disclosure of information outside established
business rules
(iii) the application of FoIA/EIR exemptions and where appropriate, balancing the public interest
(iv) not processing the request and issuing a refusal on procedural grounds where the requested information is
• not held • is deemed to be vexatious or repetitive under s.14 of FoIA or manifestly
unreasonable under EIR Regulation 12(4)(b) • compliance would exceed the appropriate limit under S.12 of FoIA
Manchester City Council Item 3 – Appendix 2 Overview and Scrutiny Governance Subgroup 9 December 2010
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Appendix 2 - FoIA exemptions
Section 21 Information available by other means Absolute
Section 22 Intended for future publication Qualified
Section 23 Communications with security bodies Absolute
Section 24 Safeguarding National Security Qualified
Section 26 Defence and Armed forces Qualified
Section 27 International Relations Qualified
Section 28 Relations between nations of the UK Qualified
Section 29 The UK Economy Qualified
Section 30 Criminal Investigations & Proceedings Qualified
Section 31 Law Enforcement Qualified
Section 32 Court Records Absolute
Section 33 External Audit Qualified
Section 34 Parliamentary Privilege Absolute
Section 35 Formulation & Development of
Government policy Qualified
Section 36 Prejudicial to the Conduct of Public Affairs
- Houses of Commons & Lords Absolute
- All others bodies (only claimable Qualified
by ‘Qualified Person’ appointed by a Minister)
Section 37 Communications with HM &
Royal Household and honours Qualified
Section 38 Risk to Health & Safety Qualified
Section 39 Environmental Information Qualified
Section 40 Personal Information - about the applicant Absolute
- about a third party Absolute
Manchester City Council Item 3 – Appendix 2 Overview and Scrutiny Governance Subgroup 9 December 2010
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- s.10 cease processing notice Qualified
Section 41 Information Provided in confidence
(NB common law requires Public Interest test) Absolute
Section 42 Legal Professional Privilege Qualified
Section 43 Trade Secrets & Commercial Interests Qualified
Section 44 Prohibitions on Disclosure Absolute
EIR exceptions
All exceptions except personal data, are subject to a public interest test
EIR Regulation 12(4)
(a) it does not hold that information when an applicant’s request is received;
(b) the request for information is manifestly unreasonable;
(c) the request for information is formulated in too general a manner …. ;
(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or
(e)the request involves the disclosure of internal communications.
EIR Regulation 12(5)
Disclosure would adversely affect:
(a) international relations, defence, national security or public safety;
(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;
(c) intellectual property rights;
(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;
(f) the interests of the person who provided the information where that person—
(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
Manchester City Council Item 3 – Appendix 2 Overview and Scrutiny Governance Subgroup 9 December 2010
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(iii) has not consented to its disclosure; or
(g) the protection of the environment to which the information relates.
EIR Regulation 13 – Personal data Provides exceptions from disclosure if subject access rights apply or disclosure of third party data would breach data protection principles.