1

Overview and Scrutiny Commission

FINAL

“Review of the operation of the Freedom of Information (FOI) Scheme including the Internal

Review process”

March 2019

1.0 Table of Contents Page No. 1.0 Contents 2

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2.0 Summary of Recommendations 4 3.0 Overview and Scrutiny Commission Membership 7 4.0 Scope 8 5.0 Methodology 9 6.0 The Review 12 a) Introduction 12 b) Freedom of Information Act and Guidance 12 I. The Freedom of Information Act 12 II. Principles of the Freedom of Information Act 12 III. Publication Scheme 12 IV. Requests Received and Timescales for Response 13 V. Exemptions 13 VI. Internal Reviews 13 VII. The Information Commissioner’s Office and

Referrals 14

VIII. Cabinet Office Code of Practice 15 c) Freedom of Information Process I. How FOI requests are handled

Who is responsible for responding? What is the policy? How are requests received? Publication Scheme and website

16

II. Analysis of the number of requests received

Total requests received Requests by Department Requests by Service Numbers refused/Partial Response Reasons for refusal Numbers unanswered

20

III. Timescales for response

What are the target/set timescales? How does the council perform?

26

IV. General

What are the reasons for making FOI requests? Are there any mechanisms to request

information other than FOI requests?

30

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Ensuring consistency across the council V. How are internal reviews undertaken?

What is the policy/process? Who undertakes internal reviews? Could there be potential conflicts of interest? Where are they reported?

33

VI. ICO Referrals

Harrogate Borough Council CIPFA Nearest Neighbours

38

7.0 Conclusions 40 8.0 Bibliography 41

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2.0 Summary of Recommendations

Recommendation (3): Central FOI Log

a) Ensure that the Central FOI log records where requests are received (e.g. via letter/email/web-form)

Recommendation (5): Website improvements: The FOI/Publication Scheme part of the website should be regularly reviewed and updated in response to feedback from the public. This would ensure that appropriate information is published in accordance with the model publication scheme and kept up to date

Recommendation (4): Code of Practice

a) The council should review the updated code of practice and implement any required changes to meet the social media requirements as detailed in the section Rights of Access paragraph 1.16

Recommendation (6): Code of Practice

b) The council should publish and report compliance statistics in accordance with paragraph 8.5 of the Code of Practice

Recommendation (8): FOI log

Recommendation (1): Information about the ICO guidance and FOI legislation should be available on the council’s website and a simple plain English FOI policy should be developed

Recommendation (2): All FOI requests and responses should be published on the council website this could include a search facility and frequently asked questions

Recommendation (7): The number of FOI requests per department/service and exemptions used should be included in the corporate quarterly performance reports

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Recommendation (10): Report the council’s performance in responding to FOI requests within 20 working days as part of the corporate quarterly performance reporting process

Recommendation (11): The council has a corporate performance indicator to respond to all FOI requests within 20 working days with a target of 90%. All requests that fail to meet the 20 working day deadline should be reported quarterly with reasons provided

Recommendation (12): FOI Log d) The FOI log records the source of FOI requests where possible (e.g. journalists, members of the public etc.) and it is required to be completed e) Officers are required to complete the FOI log information for time taken to respond to a FOI request

f) All Councillors should be provided with access to the FOI log to review FOI requests made and responses provided

Recommendation (13): Consistency

a) All responses to FOI requests should be provided by the LADIL in consultation with the services involved

b) A small number of FOI contacts (with appropriate training) to be provided in all

Recommendation (9): The council should always inform requesters if responses are to be delayed in excess of the 20 working day target

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3.0 Overview and Scrutiny Commission Membership 3.1 Membership for the municipal year 2017/18:

Recommendation (15): The number of decision notices received from the ICO should be included as part of the quarterly performance report

Recommendation (14): A formal written internal review process should be developed and made publically available

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Councillor David Goode (Chair)

Councillor Bernard Bateman

Councillor Philip Broadbank

Councillor Nick Brown

Councillor Ian Galloway

Councillor Nathan Hull

Councillor John Mann

Councillor Pat Marsh

Councillor Stuart Martin

Councillor Pauline McHardy

Councillor Tim Myatt

Councillor Bob O'Neill

Councillor Andrew Paraskos

Councillor Ashley Teague

Councillor Cliff Trotter

3.2 Membership for the municipal year 2018/19:

Councillor Philip Broadbank (Chair)

Councillor Margaret Atkinson

Councillor Bernard Bateman

Councillor Nick Brown

Councillor Sue Lumby

Councillor John Mann

Councillor Pat Marsh

Councillor Samantha Mearns/Victoria Oldham

Councillor Nigel Middlemass

Councillor Ann Myatt

Councillor Norman Waller

Councillor Tom Watson

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4.0 Scope 4.1

The draft scope was agreed by Members at a meeting of the Commission on 21 November 2017. The scope was also agreed by the member of the public who initiated the review. The agreed scoping document is included at Appendix A. The title for the review was the “Review of the operation of the Freedom of Information (FOI) Scheme including the Internal Review process”.

4.2

The main aims/objectives were:

a) How FOI requests are handled

b) Analysis of the numbers of requests received:

c) Timescales for response

d) General

What are the reasons for making FOI requests?

Are there any mechanisms to request information other than FOI requests?

Ensuring consistency across the Council

e) How are internal reviews undertaken?

4.3 The report details the work undertaken to address the aims/objectives of the review.

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5.0 Methodology 5.1

The review was undertaken by the full Commission over a number of meetings commencing in early 2018. Appropriate Officers and external witnesses were invited to attend and provide evidence.

a) Background Research 5.2 A number of background papers/publications/websites were considered as part of the

review including:

Section 45 Code of Practice – Request Handling (attached at Appendix D)

The Freedom of Information Act (attached at Appendix E (available on request)

How the Information Commissioner’s Office Selects Authorities for Monitoring (attached at Appendix F)

Updated Code of Practice (attached at Appendix N)

The Guide to Freedom of Information – Information Commissioner’s Office

Information Commissioner’s Office – Model Publication Scheme

Information Commissioner’s website

Other local authority websites b) Freedom of Information Log 5.3 When requests are received, they are acknowledged and logged on a corporate log

stored within Legal and Governance. The Commission was provided with a copy of the FOI log which allowed us to analyse the request received. This was used for the purposes of:

Statistical information (numbers of requests received, numbers unanswered etc.)

Selecting requests for a customer survey from a redacted version of the log

Understanding the process in responding to FOI’s

Understanding key themes and trends The FOI log includes the following columns to be completed:

Name of requester

Details of the request

Date received

Department/service

Officer dealing with

Deadline for response

Date of response

Exemption applied

Time spent completing request c) Benchmarked CIPFA Nearest Neighbours 5.4 Benchmarking information was obtained from 15 similar authorities; this enabled the

Commission to compare the council’s processes, procedures and performance to other similar local authorities.

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5.5 The benchmarked authorities were derived from the Chartered Institute for Public Finance and Accountancy (CIPFA) Nearest Neighbours, which compares the council against a number of key indicators such as non- metropolitan districts, population, % of unemployment, retail premises, and % properties band A-D, etc.

5.6 As a result, requests were made to the council’s CIPFA Nearest Neighbours for:

Number of requests received from 2015/16 to 2017/18

% compliance within 20 working days (as per FOIA)

% compliance within 10 working days (for information only)

Number of internal reviews and the outcomes of these

A copy of their internal review process

Information for which officers conduct internal reviews

Section within the council in which the responsibility for FOI’s sit

Whether there is a dedicated officer to deal with/coordinate FOI

The number of ICO referrals and the outcomes of these The responses to these questions are detailed in this report and attached in full at Appendix H.

5.7 All of the council’s CIPFA Nearest Neighbour provided a response of the requests

made for information; this took in total a period of four months. However, not all respondents were able to provide full answers to all questions due to information not being stored, being lost or not recorded. Comparative data has been collated in this report where possible.

d) Craven District Council 5.8 Detailed comparative information was also considered from Craven District Council (a

smaller local authority within North Yorkshire) this was provided by the Information Governance Manager who attended a meeting of the Commission and also provided additional information such as:

FOI statistics

ICO relevant tribunal decisions

Process and policies at Craven District Council e) Public Consultation 5.9

A significant consultation exercise was undertaken with members of the public based on the proportion of FOI received per department, the number of responses after 20 working day deadline and the proportion of exemptions used. 100 members of the public were randomly selected (based upon the above criteria) for the period 1 January 2018 – 31 March 2018. Responses were selected anonymously and without reference to the request made or to the requestor from a redacted version of the FOI log. A snap survey was developed with a number of questions regarding the customers experience, the survey is attached at Appendix K and the summary results are attached at Appendix L.

5.10 Three reminder emails were sent to requestors to encourage response, however only 16 responses were received. It should be noted that one response was sent in error regarding the wrong authority and was therefore discounted from the results.

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5.11 On behalf of the Commission, FOI requests were also submitted anonymously to the council as part of a “mystery shopper” exercise in order to ascertain customer experience of submitting FOI’s. Four FOI requests were submitted in this way to the council. Two were submitted via the dedicated FOI email address, one was via the council’s webform on the website and one was via Twitter. The FOI’s requests submitted as part of the mystery shopper exercise are attached at Appendix I.

f) Meeting Overview 5.12 The following table provides an overview of the meetings together with information

considered (attached to the report as appendices).

Meeting Date Subject Attendees

21 November 2017 Scope of review Members of the 2017/18 Commission

Information Considered/Minutes

APPENDIX A – Scope Document APPENDIX B – Minutes of the Commission of the meeting 21 November 2017

19 February 2018 Review of FOI Scheme

Members of the 2017/18 Commission

Rich Kemp, Legal Assistant

Bernice Elgot, Chief Solicitor

Information Considered/Minutes

APPENDIX C – Presentation from Legal Assistant/Chief Solicitor APPENDIX D – Information Commissioner’s Office (ICO) Section 45 Code of Practice APPENDIX E (available on request) – Freedom of Information Legislation APPENDIX F – “How the ICO Selects Authorities for Monitoring” APPENDIX G – Minutes of the Commission of the meeting of 19 February 2018

2 July 2018 Review of FOI Scheme Members of the 2018/19 Commission

Dave Clothier, Information Systems Manager

David Roper-Newman, Information Governance Manager (Craven District Council)

Information Considered/Minutes

APPENDIX H – Performance Benchmarking in Comparison to CIPFA Nearest Neighbours APPENDIX I – “Mystery Shopper” Freedom of Information Requests Submitted APPENDIX J – Minutes of the meeting of 2 July 2018

26 November 2018 Draft Report Members of the 2018/19 Commission

Information Considered/Minutes

APPENDIX K – Customer Survey APPENDIX L – Customer Survey Summary Results

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6.0 The Review a) Introduction

6.1 On 12 June 2017 a member of the public requested that the Commission review the council’s FOI scheme, including the internal review process. The item of work was considered medium priority and the review commenced in early 2018. It was recognised this would be an in depth review and would overlap two municipal years. The Overview and Scrutiny Commission 2018/19 agreed to continue the work.

b) The Freedom of Information Act & Guidance I. The Freedom of Information Act 6.2 The Freedom of Information Act (FOIA) 2000 provides public access to information held by

public authorities.1 It does this in two ways:

Public authorities are obliged to publish certain information about their activities; and

Members of the public are entitled to request information from public authorities.2 6.3

The Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. The Act covers all recorded information held by a public authority. The updated Code of Practice provides further guidance about how to define ‘information’ and whether information is ‘held’ for the purposes of the Act.

6.4 This means that FOI is not limited to official documents it also covers drafts, emails and notes. However, it means that the FOIA does not apply to requests if it would mean the creation of new information or giving an opinion or judgment that is not already recorded. FOI requests can be made by anyone, individuals or by organisations.

II. Principles of the Freedom of Information Act 6.5

The Information Commissioner’s Office Guidance highlights a number of principles for FOI. It is stated that the main principle of FOI legislation is that “people have a right to know about the activities of public authorities, unless there is a good reason for them not to. This is sometimes described as a presumption or assumption in favour of disclosure. The Act is also sometimes described as purpose and applicant blind.”3

III. Publication Scheme 6.6

The FOIA requires every public authority to have a publication scheme and to publish information covered by it.4 Public authorities have an obligation to publish certain information proactively under the Publication Scheme and to respond to requests for information. The scheme must set the council’s commitment to make certain classes of information routinely available such as policies and procedures, minutes of meetings and financial information. The Information Commissioner’s Office has created a model publication scheme that all public authorities must use. It also specifies how public authorities should make the information available, what charges can be made, and what the council needs to tell

1 ‘Freedom of Information Act 2000’ https://www.legislation.gov.uk/ukpga/2000/36/contents 2 ‘What is the Freedom of Information Act?’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/what-is-the-foi-act/ 3 ‘Guide to Freedom of Information’ pg. 5 https://ico.org.uk/media/for-organisations/guide-to-freedom-of-information-4-9.pdf 4 ‘Freedom of Information Act 2000’ https://www.legislation.gov.uk/ukpga/2000/36/contents

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members of the public about the scheme.5 The model publication scheme describes the seven types (classes) of information that should be published.

IV. Requests Received and Timescales for Response

6.7

When a request for information is received, the council has a responsibility to tell the applicant whether it holds any information falling within the scope of their request and to provide that information, normally within 20 working days. For a request to be valid under Section 8 of the FOIA it must be in writing, include the requester’s real name, include an address for correspondence and describe the information requested. It does not apply to all enquiries made to the council for information, the provisions of the Act need only to come into force if the council cannot provide the requested information straight away or if the requester makes it clear they expect a response under the Act.6

6.8

The ICO has set the threshold for responding to requests within 20 days at 90% and can monitor authorities who repeatedly or seriously fail to respond to FOI requests within the appropriate timescales.7

V. Exemptions 6.9 In some cases there will be circumstances in which the council should not make public some

or all of the information requested. The FOIA contains a number of exemptions that do not permit the council to disclose information for a number of reasons.

6.10 There are 23 exemptions included under FOIA and all exemptions are classified as either

‘absolute exemptions’ or ‘qualified exemptions’. When an absolute exemption applies, information should not be released under the FOIA. For example, “information already reasonably accessible by other means” such as information held by North Yorkshire County Council/information available on HBC’s website are absolute exemptions.

6.11

Most exemptions are qualified exemptions. When a qualified exemption applies, a public interest test must be carried out. The public interest test requires the council to disclose information unless the council considers that the public interest in withholding information outweighs that of disclosing it. For example, “information intended for future publication” is a qualified exemption. A full list of exemptions and whether they are qualified or absolute can be found under Appendix M.

6.12 If the council considers that an exemption for the release of information applies, then it must

issue a written refusal notice specifying which exemptions the council is using and the reasons why. If the council has completed a public interest test under a qualified exemption, then the council should explain why it considers the use of the exemption outweighs the public interest in disclosing the information. The refusal notice must be issued promptly, or within 20 working days.8 The refusal notice should also give details of any internal review procedure and explain the requester’s right to complain to the ICO. This should include the contact details for the ICO

VI. Internal Reviews

5 ‘Model Publication Scheme’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/publication-scheme/

6 ‘What should we do when we receive a request for information’ https://ico.org.uk/for-organisations/guide-to-freedom-of-

information/receiving-a-request/ 7 ‘Monitoring compliance’ - https://ico.org.uk/action-weve-taken/monitoring-compliance/ 8 ‘Time limits for compliance’ https://ico.org.uk/media/1622/time-for-compliance-eir-guidance.pdf

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6.13

Under the FOIA, there is no obligation for an authority to provide a complaints process or internal review process.9 However, it is good practice (under Section 45 Code of Practice) and most authorities choose to do so. The following guidance is provided by the ICO regarding internal reviews:

ensure the procedure is triggered whenever a requester expresses dissatisfaction with the outcome;

make sure it is a straightforward, single-stage process; make a fresh decision based on all the available evidence that is relevant to the date

of the request, not just a review of the first decision; ensure the review is done by someone who did not deal with the request, where

possible, and preferably by a more senior member of staff; and ensure the review takes no longer than 20 working days in most cases, or 40 in

exceptional circumstances.10

6.14

The ICO also recommends that internal reviews are requested as soon as possible and within two months of the requestor receiving a final response to their FOI request.11

6.15

When an authority makes a decision not to disclose information, and relies on an exemption, they are obliged to notify the requestor of the procedure for dealing with complaints. The complaints procedure should provide a fair and thorough review of handling issues and of decisions made, including decisions taken about public interest tests. It should enable a fresh decision to be taken based on a reconsideration of all the relevant factors.

6.16 Where the outcome of a complaint is a decision that information should be disclosed which

was previously withheld, the information in question should be disclosed as soon as practicable and the applicant should be informed when this will be undertaken. Where the outcome of a complaint is that the decision to withhold information is upheld, or is otherwise in the authority's favour, the applicant should be informed of his or her right to refer to the ICO.12 The ICO acts as the independent review body for requestors that are not satisfied with the response to an FOI from an organisation (see following section).

6.17

The Code of Practice and ICO Guidance both state that the review should be undertaken by “someone senior to the person who took the original decision, where this is reasonably practicable”.13

VII. The Information Commissioner’s Office and Referrals 6.18 The Information Commissioner’s Office (ICO) is the independent regulatory body for FOI

requests and is the independent appointed body to investigate complaints from members of the public who believe an authority has failed to respond correctly to a request for information. The ICO produces guidance for public authorities on how to deal with requests and how/when exemptions should be engaged. If the requester is unhappy with the outcome of a request for information, the council can provide an internal review. If the requester is still unhappy following the review or the council fails to review the original decision, they are able to refer this to the ICO for independent investigation.

9 ‘When can we refuse a request for information’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/refusing-a-request/ 10 ‘When can we refuse a request for information’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/refusing-a-request/ 11 ‘How to access information from a public body’ https://ico.org.uk/your-data-matters/official-information/ 12 ‘Secretary of State for Constitutional Affairs’ Code of Practice on the discharge of public authorities’ functions under Part 1 of the Freedom of

Information Act 2000, Issued under section 45 of the Act’ -

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/235286/0033.pdf 13 ‘Secretary of State for Constitutional Affairs’ Code of Practice on the discharge of public authorities’ functions under Part 1 of the Freedom of

Information Act 2000, Issued under section 45 of the Act’ -

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/235286/0033.pdf

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6.19

The ICO has a general duty to investigate complaints from members of the public and publishes all decision notices following investigations of the way organisations have dealt with FOI requests at the requests of individual complainants.14 If the ICO finds that an organisation has breached the Act, a decision notice would state what needs to be done to put things right.

6.20

A decision notice may state that requests have been dealt with correctly. However, if the ICO find that the FOIA has been breached, there may be some steps that need to be taken to put things right, such as disclosing some or all of the requested information. When considering ICO decisions approximately 50% of cases that are resolved by decision notice require the disclosure of some or all of the information requested. The ICO does not impose penalties on public authorities or provide compensation to requestors.

6.21

If a breach of the Act does not fall within the scope of a decision notice, the ICO may resolve the issue informally or decide to issue an enforcement notice. The ICO may use an enforcement notice if a public authority has failed to adopt the publication scheme or failed to publish information in accordance with it.

6.22

The ICO may also use an enforcement notice if an authority repeatedly fails to comply with its obligations, for example, through the publication of statistics or problems with the way FOI requests are dealt with in the media. In these cases the ICO may issue an enforcement notice covering a number of different requests, whether or not the ICO has received specific complaints.

6.23 If a public authority fails to follow good practice as set down in the codes of practice, the ICO may issue a practice recommendation. For example, the ICO may recommend that an internal review procedure is implemented, or staff training is improved. These recommendations are not legally binding, but the ICO publishes and publicises all practice recommendations.

6.24

If a public authority or requester disagrees with a decision notice, an appeal can be lodged to the First Tier Tribunal within 28 calendar days. If the Tribunal determines that the ICO’s decision was wrong in law, it can overturn the decision. Complex cases can also be referred to the Upper Tribunal Chamber.

6.25

The ICO is also subject to FOI requests and therefore subject to the FOIA similar to any other relevant organisation.

VIII. Cabinet Office Code of Practice 6.26

On 4 July 2018, the Cabinet Office published an updated Code of Practice to provide guidance to public authorities on the discharged of their functions and responsibilities under Part I (Access to information held by public authorities) of the Freedom of Information Act 2000 (“the Act’).15 The previous Code of Practice was published in 2004 which meant that the Code did not reflect subsequent developments in good practice. The new code provides updated and expanded guidance to public authorities and was published in response to the Independent Commission on Freedom of Information’s report following feedback from a public consultation.

14 ‘ICO Decision Notices’- https://icosearch.ico.org.uk/s/search.html?collection=ico-meta&profile=decisions&query 15 ‘Freedom of Information Code of Practice’ – July 2018

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722165/FOI-Code-of-Practice-July-

2018.pdf

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6.27 Any changes recommended in the updated Code of Practice have been considered as far as possible in this report. A copy of the updated Code of Practice is attached at Appendix N.

c) Freedom of Information Process I. How FOI requests are handled o Who is responsible for responding? 6.28 The operation of the FOI Scheme at Harrogate Borough Council (HBC) is the responsibility of

the Legal and Governance Service within the Department of Corporate Affairs. The Legal Assistant (Debt and Information Law) (LADIL) oversees and co-ordinates the overall FOI process with departmental representatives’ co-ordinating responses to requests on behalf of their section/department. Officers are required to comply with the FOI scheme and ensure requests received are entered in the FOI log.

6.29 The majority of the council’s CIPFA’s Nearest Neighbours stated that the responsibility for

responses to FOI requests was located within either Legal Services (four councils) or Corporate Support/Services Team (four councils). The other councils stated that it was located within Digital/Customer Services (three councils), governance/information (two councils).

6.30 The majority of the council’s CIPFA’s Nearest Neighbours stated that there was one officer

who coordinated responses (eight councils) with three councils who did not have a dedicated officer.

6.31 At Craven District Council, the responsibility for responding to FOI requests is overseen by

the Information and Governance Manager (IGM) with the support of administration officers. 6.32 There is no guidance or legal requirement for the location of the responsibility for responding

to FOI requests. At HBC the responsibility for responding to/coordinating FOI requests within Legal Services is consistent with other authorities and therefore the Commission considered this was appropriate.

o What is the policy? 6.33 The council does not have a separate FOI policy. The legislation and ICO guidance is used

to deal with FOI requests, which are underpinned by the Code of Practice. A link to the FOIA is provided as part of the submission of an FOI request form on the website. When the council’s CIPFA nearest neighbour websites were reviewed, three out of 15 councils had FOI policies on their website.

6.34 An FOI policy was discussed by the Commission at a meeting on 19 February 2018 (see

Appendix G) and it was considered that the reference to FOI legislation and guidance was not clear on the council’s website (see paragraph 6.45 for website improvements) and the legislation was sometimes difficult to understand. It was discussed that potentially a simple policy could be developed for publication.

6.35 At the meeting on 26 November 2018 it was agreed that a simple plain English FOI policy

should be developed and that all FOI requests and responses made could be provided on the council’s website because this would increase the transparency of the council and may reduce the number of FOI requests made. It was noted that this could include a search facility and a frequently asked questions area.

Recommendation (1): Information about the ICO guidance and FOI legislation should be available on the council’s website and a simple plain English FOI policy should be developed

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o How are requests received? 6.36 FOI requests at the council can be received in a number of different ways:

FOI request form on the council’s website

Dedicated FOI email address

Letter

Emails direct to officers 6.37 Requests received via the FOI request form on the council’s website, emails to the dedicated

FOI email address and letters addressed “Freedom of Information request” are received by the LADIL. All other FOI requests are received directly by officers across the council.

6.38

The updated Code of Practice provides further guidance surrounding FOI requests submitted through social media, stating that requests submitted through social media will be valid where it meets the requirements of Section 8 of the FOIA by providing an applicant’s name and address for correspondence and a clear request for information (see Appendix N for the updated Code of Practice).

6.39 Addresses for correspondence can take the form of an email address or a unique name or identifier on a social media platform (for example a Twitter handle). Requests must be addressed to the public authority. As part of the “mystery shopper” exercise, in which anonymous FOI requests were submitted, one question was submitted via Twitter (not submitted as an FOI request) and did not receive a response.

6.40

If the information is held corporately or covers a number of services then the response will be provided directly from the LADIL. The LADIL will log the request in the FOI log and will complete the relevant information. If the information is not held centrally, the request is forwarded onto the departmental representatives to coordinate a response who will be responsible for completing the FOI log. FOI requests can also be received directly by Officers. There is a guidance document and standard response templates available for staff to deal with FOI requests; these are accessible by all staff on the council’s intranet.

6.41 It was confirmed that requests are responded to in the format received (unless the applicant

requests otherwise). In regards to ‘webform’, when requests are submitted using webform it creates an email which is sent to the central FOI inbox and usually the response will by email (as that is what the applicant provides for response) but it could be by letter if that is what the applicant requests.

6.42 At Craven District Council, the majority of requests are received via the dedicated FOI email

address, letter or the ‘Contact Us’ page on the council’s website. Requests received via email received an automatic acknowledgment and all others are acknowledged by staff. Requests are logged and the system provides automatic due by dates and statistics are automatically

Recommendation (2): All FOI requests and responses should be published on the council website this could include a search facility and frequently asked questions

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collected to ensure requests are dealt with efficiently. If requests are straightforward for example where information is already published or it is the responsibility of NYCC, they are dealt with by two FOI administrators and are not forwarded to service managers. When a request requires a service manager response, these are recorded.

6.43

The HBC FOI log was analysed and it was found that it was not possible to interrogate information to find out how the requests were received as this is not accurately recorded. If this information was available, it would allow the organisation to understand the mechanism by which requests were received and therefore inform analysis of contact with the council.

6.44

The Commission considered that the FOI log could be used more effectively to understand the methods of contact with the council and improve electronic methods of communication. This could be undertaken by ensuring that the method of FOI requests used is captured in the FOI log and monitored/reported on a regular basis.

6.45 The mystery shopper FOI request via Twitter demonstrated that there was some difficulty in

identifying requests for information and potential FOI requests via social media. The new Code of Practice highlights that requests for information via social media will be valid if they meet the requirements in Section 8 and therefore the council’s social media accounts should be monitored for the purposes of FOI requests so they can be identified and passed on to be dealt with through the appropriate mechanisms.

o Publication Scheme and website 6.46 The FOIA requires public authorities to have a publication scheme, specified by the ICO, and

to publish information covered by the scheme. The scheme must set out classes of information routinely available and to achieve this, the ICO has developed a model publication scheme.16 The Publication Scheme also provides specific information about the council and information can also be requested via Subject Access Requests and Environmental Information Regulations Requests etc.

6.47 Providing information on the council’s website both as required in the legislation and

proactively means that FOI requests received for the same information can be signposted to the published information, potentially reducing the workload in responding to requests and the number of requests received.

16 ‘Data Transparency’ https://www.harrogate.gov.uk/info/20135/data_protection_and_freedom_of_information/381/data_transparency

Recommendation (3): Central FOI Log

b) Ensure that the log records where requests are received (e.g. via letter/email/web-form)

Recommendation (4): Code of Practice

b) The council should review the updated code of practice and implement any required changes to meet the social media requirements as detailed in the section Rights of Access paragraph 1.16

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6.48

The council publishes as much information as possible on the council’s external website and it is the currently the top website nationally on SOCITM Better Connected and SiteMorse, which compares the council’s websites for the purposes of accessibility and user experience.

6.49 The customer survey results showed that the majority of respondents had looked at the

council’s website prior to submitting an FOI request. This could indicated that the information requested was not published. The council has also received an increasing number of FOI requests over the past five years this may also indicate that the information requested has not been available on the website.

6.50

The Commission reviewed the council’s website, including the publication scheme and discussed that further improvements could be made to expand the range and detail of information available online to potentially reduce requests made for published information.

6.51

When submitting an FOI request through the council’s website, there is limited information available about the legislative background or guidance.

6.52

When the FOI information available on the websites of the council’s CIPFA Nearest Neighbours was reviewed, information was provided to assist members of the public that was not available on HBC’s website. For example:

Details of how FOI requests can be made

How the council handles requests

Complaints, reviews and appeals

Details of the ICO

FOI guidance

FOI fees

FOI exemptions

Records of previous FOI requests

Model publication scheme 6.53

The updated Code of Practice also refers to the publication of information and recommends that public authorities with over 100 full time equivalent (FTE) employees should, as a matter of best practice, publish compliance statistics for handling requests for information under the Act on a quarterly basis (see below). Currently, the council does not publish this information, it should be noted that currently most authorities do not publish this information. Information should include:

The number of requests received during the period;

The number of the received requests that have not yet been processed (you may also wish to show how many of these outstanding requests have extended deadlines or a stopped clock, e.g. because a fee notice has been issued);

The number of the received requests that were processed in full (including numbers for those that were met within the statutory deadline, those where the deadline was extended and those where the processing took longer than the statutory deadline);

The number of requests where the information was granted in full;

The number of requests where the information was refused in full (you may wish to separately identify those where this was because the information was not held);

The number of requests where the information was granted in part and refused in part;

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The number of requests received that have been referred for internal review annually.17

6.54 The Commission considered that the council’s website could be reviewed to ensure that

appropriate information was published in accordance with the model publication scheme and was kept up to date. This could improve transparency and potentially reduce the number of FOI requests received. This review should also include publication of the information required in the new Code of Practice.

II. Analysis of the number of requests received o Total requests received 6.55 Performance statistics were obtained from the FOI log which detailed the volume of requests,

requests refused (including partial refusal), response rates, number of internal reviews and referrals to the ICO for the council. It should be noted that the information contained in the FOI log is covered by a number of recommendations.

6.56 The graph below shows the number of requests received by HBC from 1 April 2015 until 31

March 2018.

17 ‘Freedom of Information Code of Practice’ – July 2018

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744071/CoP_FOI_Code_of_Practice_-

_Minor_Amendments_20180926_.pdf

0

100

200

300

400

500

600

700

800

900

2013/14 2014/15 2015/16 2016/17 2017/18

697736

686

823883

Number of Requests Received

Recommendation (5): Website improvements: The FOI/Publication Scheme part of the website should be regularly reviewed and updated in response to feedback from the public. This would ensure that appropriate information is published in accordance with the model publication scheme and kept up to date

Recommendation (6): Code of Practice b) The council should publish and report compliance statistics in accordance with paragraph 8.5 of the Code of Practice

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6.57 The graph above shows that there has been an increase in FOI requests received from 697

in 2013/14 to 883 in 2017/18. The total number of requests received is reported quarterly to Management Board, Cabinet and Overview and Scrutiny.

6.58 The graph below shows the total number of FOI requests received from 1 April 2015 until the

request was made for information during 2017/18 (i.e. the information does not include the full year numbers for 2017/18) and compares the council with its CIPFA Nearest Neighbours:

6.59 In terms of volumes of requests received since 2015/16, HBC has received more than the

average number of FOI requests compared to CIPFA’s Nearest Neighbours (+15%). HBC has received the third highest total number of requests compared with CIPFA nearest neighbours, with South Somerset having the highest number. Where authorities were not able to provide FOI requests for all years, they have not been included in the graph above.

6.60 The information shows that the number of requests received by HBC has increased steadily

over time and that the council has received more than the average number of requests compared to similar authorities since 2015/16.

o Requests by Department 6.61 The graph below shows a breakdown of FOI requests received per department for 2016/17

and 2017/18. Requests that have been directed to the Chief Executive and requests that are referred to NYCC directly have been listed separately. Some requests involve multiple departments and are listed under ‘Central FOI’.

381400

450

Freedom of Information Requests Received by Department 2016/17 and 2017/18

2393

1943

2532

1848 1844

2200

1348

1914

1417

2034 1909 1956

3478

0

500

1000

1500

2000

2500

3000

3500

4000

Total Requests Received Since 2015/16 Compared with Average

Totals

Average

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6.62 The graph shows that the Department of Community received the largest number of requests

for 2016/17 and 2017/18, followed by Corporate and Economy and Culture, respectively. There has been a decrease in the numbers of FOI’s received in 4 Departments, with numbers increasing in Community, Economy and Culture and the Chief Executive. The biggest increase has been within Community with an additional 81 requests (21%). The biggest decrease was within Central FOI requests by 36 (47%).

6.63 The information shows that there are wide differences in the number of requests received per

Department, with the majority of requests received by Community and the least amount of requests received by HCC and Chief Executive.

o Requests by Service 6.64 The graph below shows the number of FOI requests received per service for 2016/17 and

2017/18.

76

18

91

161

2335 36

7956

167

1 2

7852

14

119129

29 30

54

141

64

175

3 0

73

020406080

100120140160180200

Freedom of Information Requests Received by Service 2016/17 and 2017/18

2016/17

2017/18

23 | P a g e

6.65

The graph shows that Safer Communities (167 in 2016/17 and 168 in 2017/18) and Finance (161 in 2016/17 and 125 in 2017/18) received the majority of requests. HCC and the Chief Executive received the smallest number of FOI requests. It also shows that a large proportion of requests are for information held by NYCC (this is an absolute exemption under the FOIA). The majority of services saw an increase in the number of FOI requests between 2016/17 and 2017/18. Housing and Property Services saw the largest increases in FOI requests received from 79 in 2016/17 to 141 in 2017/18.

6.66 No benchmarking information is available for CIPFA’s Nearest Neighbours for the split

between departments and services. o Numbers Refused/Partial Response 6.67

The FOIA contains a number of exemptions that do not permit the council to disclose information for a number of reasons. This is discussed in more detail in paragraphs 6.9 – 6.12.

6.68 The number of requests where information was withheld either partially or wholly by the

council compared to the total number of requests per year is detailed in the table below. This table shows the number of requests in which exemptions have been used but does not include requests where the information is held by NYCC or requests for information accessible to the requester by other means (on the council’s website).

Year Requests Refused

2017/18 69 of 883 (7%)

2016/17 35 of 823 (4%)

2015/16 43 of 686 (6%)

2014/15 51 of 736 (7%)

2013/14 31 of 697 (4%) 6.69 This information shows that the number of FOI requests refused has increased; this could be

as a result of the total numbers of requests received increasing in the same period of time. However, as a percentage of the total number of requests, the number of requests where information has been withheld has remained consistent.

6.70 No benchmarking information is available for CIPFA’s Nearest Neighbours on the number of

requests refused. 6.71

The results from the customer survey showed that the majority of respondents stated that the information provided/response did not fully answer the request (nine out of 15). All the respondents who stated that their request was not dealt with in a timely manner stated that the response received did not answer their request. However, the majority of respondents (56%) stated that the overall quality of service provided in response to their FOI requests was either very good or good.

6.72 Additionally, the majority of respondents (eight out of 15) stated that an explanation was not

provided if the information was withheld. Five respondents stated that they did receive an explanation and two respondents stated they did not know. Not all responses issued would have used an exemption.

6.73

For all FOI requests submitted under the “mystery shopper” exercise the information requested was provided.

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6.74 The numbers of requests where exemptions had been applicable has remained fairly consistent. The majority of respondents to the customer survey indicated that the information provided did not fully answer their request and respondents also indicated that where information was withheld, an explanation was not provided. However, the majority of respondents rated the overall quality of service provided as either very good or good.

o Reasons for refusal 6.75 When a request is received, the council has to consider whether it can release the

information. It must apply exemptions as detailed in FOIA (see paragraph 6.9) and a full list of exemptions can be found at Appendix M. The following table shows the top five exemptions applied by the council from the FOI log, with totals (as far as can be determined):

6.76 The information above indicates that following exemptions were the most frequently used in

2016/17 and 2017/18:

Section 21 – Information accessible to applicant by other means and in particular requests directed to NYCC (in 2016/17 this related to 78 requests)

Section 21 – Information accessible to applicant by other means, other than NYCC (in 2016/17 this related to nine requests)

Section 22 - Information intended for future publication (in 2017/18 this related to 24 requests in conjunction to Section 21)

Section 14 (2) – Vexatious requests (in 2016/17 this related to four requests)

Section 12 - Exemption where cost of compliance exceeds appropriate limit (in 2017/18 this related to five requests)

6.77 In 2016/17, of the 823 requests received, 139 of these requests had utilised exemptions for

all or part of the response received. However, when excluding responses that were referred onto NYCC, 61 requests utilised exemptions for all or part of a response (7.4%).

6.78 In 2017/18, of the 883 requests received, 171 of these requests had utilised exemptions for

all or part of the response provided. However, when excluding responses that were referred onto NYCC (e.g. requests relating to schools or public highways), 79 requests utilised exemptions for all or part of a response (8.9%).

6.79 It should be noted that it was difficult to analyse the exemption information in more detail

within the FOI log as it was not always up to date. This was because the appropriate section was not always completed within services. It was confirmed that due to the lack of information, additional support was required from the LADIL to ensure the relevant

92

24

9 6 5

0

10

20

30

40

50

60

70

80

90

100

NYCC S21 andS22

S21 S40(2)for parts

S12

Top 5 Exemptions Used in 2017/18

78

94 4 3

0

10

20

30

40

50

60

70

80

90

NYCC S21 NYCC forpart

S14(2) S12

Top 5 Exemptions Used in 2016/17

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information was provided regarding the use of exemptions. It was also noted that it would be useful if discussions with the LADIL about the use of exemptions could be undertaken prior to a response to an FOI request being sent out to ensure consistency.

6.80

At Craven District Council, there is an overall summary of the FOI response provided from officers who are responding to the FOI requests to the IGM. This details whether the information was provided in whole, in part or refused due to the use of an exemption. For all responses issued, officers fill in a template (see below) and provide this information to the IGM: For each response please advise whether the information requested has been:

Indicate which applies

Provided in whole (all information given)

Provided only in part

Refused eg because an exemption in the law

This enables the Information Governance Manager to accurately record and determine the number of requests refused/partially refused and types of exemption applied.

6.81 In summary, the completion of the FOI log is not always undertaken in a timely manner at

HBC regarding the use of exemptions. It is difficult to know which exemptions have been applied, whether the request has been answered in full or ensuring consistency across services. This requires the LADIL to dedicate additional time and support so that this is undertaken and the FOI log completed. It was agreed that the number of FOI requests per department/service and the exemptions used should be reported.

o Numbers unanswered 6.82

The information in the FOI log in 2016/17 showed that 24 requests did not have a date of response listed. This may mean that the request was unanswered or the officer may have failed to record a date for the response in the FOI log. In 2017/18, two requests did not have a date of response, which similarly may be due to a request not being answered or the date of response was not recorded.

Recommendation (8): FOI log

b) Ensure that the use of exemptions and partial refusals is completed in the FOI log at the time response is sent c) The use of exemptions should be discussed with the Legal Assistant (Debt and Information Law)

Recommendation (7): The number of FOI requests per department/service and exemptions used should be included in the corporate quarterly performance reports

26 | P a g e

6.83

The implication of this is that requests which do not have a date of response are included in the figures for responses sent after 20 working days and therefore the statistics may not be accurate. More significantly, this may also mean that a response was not provided. Where no response was indicated, it was confirmed that the LADIL had to seek further information about the response requiring additional time and support.

6.84 There is no consistent completion of information in the FOI log by services therefore requiring

additional time and support from the LADIL. There is no indication that this does not take place, however, this is not recorded consistently in the FOI log. Any recommendations regarding the completion of the FOI log are included later in the report.

III. Timescales for response o What are the target/set timescales? 6.85

The FOIA requires public authorities to respond to requests within 20 working days. The ICO has set the threshold for responding to requests at 90%, which the council aims to meet, although this is not a formal performance indicator. The performance for meeting the ICO compliance rate is not formally reported to Councillors/members of the public. The number of FOI requests received and the number of requests which go to internal review are reported to the Overview and Scrutiny Commission and Cabinet in the quarterly Performance reports.

6.86

At Craven District Council, compliance rate performance is reported quarterly to Management Board. Information was not requested from the council’s CIPFA Nearest Neighbours on where the performance for meeting the ICO compliance rate was reported.

o How does the council perform? 6.87 The graph below shows HBC performance in responding to FOI requests from 2013/14 to

2017/18. Prior to the 31 April 2017, the ICO required at least 85% of all FOI requests to be responded to within 20 working days. From 1 May 2017 onwards, the ICO requires at least 90% of all FOI requests to be responded to within 20 working days.

Recommendation (9): The council should always inform requesters if responses are to be delayed in excess of the 20 working day target

10%20%30%40%50%60%70%80%90%

100%

96% 94% 96% 96% 91%

4% 6% 4% 4% 8%

Re

qu

est

s R

ece

ive

d

Harrogate Borough Council - Requests Responded Within Statutory 20 Working Days

Recommendation (10): Report the council’s performance in responding to FOI requests within 20 working days as part of the corporate quarterly performance reporting process

27 | P a g e

6.88 The information above demonstrates that the council met the ICO target for compliance

every year. Between 2016/17 and 2017/18, response rates to FOI requests have decreased although in the same period total numbers received have increased.

6.89

The results of the customer survey showed that the majority of respondents (11 out of 15) stated that the responses were received within 20 working days. Furthermore, looking at the respondents who stated that they did not receive a response in a timely manner (within 20 working days), all of them stated that they were not advised about the delay and kept informed about the process. One respondent provided their reference number and so it was possible to check the outcome of the request and it was found that a response was sent two working days after the request.

6.90 As part of the “mystery shopper” exercise, in which anonymous FOI requests were

submitted, out of the three requests submitted (two via the FOI email address and one via the council’s form on the website), all requests received a response within 20 working days. One of the requests received a response the next day.

6.91 The graph below shows the number of responses sent after 20 working days as a % of

requests received per department with the number of FOI requests sent after the 20 working days shown in brackets.

6.92 The Department that had the largest number of requests that were responded to after the 20

working days was Community for 2016/17 and Central FOI in 2017/18. This Department also

8%, 23

4%, 10

1%, 1

1%, 1

14%, 55

4%, 11

6%, 8

4%, 3

10%, 4

0%

2%

4%

6%

8%

10%

12%

14%

16%

Community Corporate Economy andCulture

HCC ChiefExecutive

NYCC Central FOI

Responses Sent After 20 Working Days as % of Requests Received Per Department 2016/17 and 2017/18

2016/17

2017/18

28 | P a g e

received the largest number of requests for these two years. Performance has decreased across all Departments from 2016/17 to 2017/18. For example, responses sent after the 20 working days in Community decreased from 8% (23 responses) in 2016/17 to 14% (55 responses) in 2017/18. Response to Central FOI requests decreased from 1% of responses after 20 working days in 2016/17 to 10% in 2017/18. However, when reviewing this by number of requests, this only relates to 1 request in 2016/17 and 4 requests in 2017/18. As noted above however, the council met the ICO target compliance rates every year.

6.93 When analysing by service, the number of responses sent after 20 working days as a % of

requests received by service is shown below with the number of requests shown in brackets:

6.94 The graph above shows that for 2016/17, Organisational Development and Improvement

(ODI) provided the highest number of responses after 20 working days as a % of requests received. For 2017/18, ICT provided the highest number of responses after 20 working days as a % of requests received. As with Departments, the majority of Services saw a decrease in performance for responses sent after 20 working days as a % of requests. ODI saw an improvement from 13% (3 requests) in 2016/17 to 3% (1 request) in 2017/18. ICT saw the largest decrease in performance from 6% (2 requests) in 2016/17 to 20% (6 requests) in 2017/18.

6.95 In comparison to the council’s CIPFA nearest neighbours, the table below shows the number

of requests responded to within 20 working days compared with the ICO compliance rate for 2017/18:

1% (1) 1% (1) 1% (2)

13% (3)

6% (2)

8% (3)10% (8)

7% (4) 7% (11)8% (4) 7% (1)

6% (7)

3% (4) 3% (1)

20% (6)

16% (23)

11% (7)

14% (25)

4% (3)

0%

5%

10%

15%

20%

25%

Responses Sent After 20 Working Days as % of Requests Received Per Service 2016/17 and 2017/18

2016/17

2017/18

91%99%

90% 93% 93% 92%

80%

92%87%

97%

44%

92%

18%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

ResponseRate

ICOCompliance

AverageResponseRate

29 | P a g e

6.96

This graph shows that the council exceeded the average response rate in comparison to CIPFA’s nearest neighbours in 2017/18 and also exceeded the ICO’s target rate for compliance of 90% response rate within 20 working days. South Somerset has the lowest compliance rate, however the validity of their data is poor and so the actual compliance rate may be higher. Mid Sussex Council has the highest compliance rate, with 99% of requests responded to within 20 working days. The average response rate is 82% which is below the ICO compliance rate. When excluding South Somerset, the average rate rises to 87%. HBC remains above average with a response rate of 91%.

6.97 In Departments and Services across HBC there are differing response rates but overall, HBC

has met the ICO compliance rate for all years since 2013/14. In comparison to the council’s CIPFA nearest neighbours, HBC is above average. It should be noted that one council has a target of 100% compliance with any variance reported to management on a quarterly basis and one council has a target of 75% response rate within 20 working days. The Commission noted that (as detailed previously) the council does not have a formal performance indicator for meeting ICO response targets. The consideration of reporting performance data regarding the ICO compliance rate is detailed at paragraph 6.85.

IV. General o What are the reasons for making FOI requests? 6.98

FOI requests can be received from numerous sources including members of the public, press, other organisations etc. All requests must include the name and contact details of the requestor and therefore it is possible for the council to analyse this information and potentially identify sources of requests. At present, the council does not record the source of FOI requests on the log (where possible) and does not review the log for the purposes of analysing sources of requests, themes and issues.

6.99 Craven District Council analyse where requests are received and a summary is reported of

the major sources of requests such as journalists, political groups, the press, national campaigns, members of the public, etc. Approximately 40% of requests received at Craven District Council are from companies who request information for marketing or for the purpose of selling goods and services.

6.100

The FOI log requires services to record the hours spent responding to requests, however, this currently does not consistently get completed and therefore costs cannot be identified.

6.101 Craven District Council ensures that the time spent replying to FOI requests is recorded by

officers and sent to the Information Governance Manager who is able to record estimate time spent on a request which allows him to ascertain costs based on an average rate per hour:

Recommendation (11): The council has a corporate performance indicator to respond to all FOI requests within 20 working days with a target of 90%. All requests that fail to meet the 20 working day deadline should be reported quarterly with reasons provided

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6.102

The HBC FOI log does not facilitate the recording of the source of a request, so that analysis can be undertaken to understand the potential sources of requests. In addition to this, no analysis is undertaking on information in the log of potential reasons why requests are made, to predict key themes, national campaigns and obtain a better understanding of current public views.

6.103

The Commission considered the FOI log noted that an estimate of costs could not be undertaken due to lack of completion. It was also considered that additional information included on the log regarding the sources of information and analysis undertaken on the subject matter of the request.

o Are there any mechanisms to request information other than FOI requests? 6.104

The council provides information to the public on a daily basis through telephone, face to face and e-mail contact with officers who respond as part of their roles within the council. The Customer Services team is a dedicated section that receives requests for information, such as bin collection dates, housing queries, and also directs people to appropriate officers within the council. Requests for information received in the course of normal council business are not recorded in the central FOI log. The council publishes as much information as possible on the council’s website to reduce potential FOI requests (see paragraph 6.6 for further details on the publication scheme).

Please also separately send me an estimate of the time spent on replying to this

request, e.g.

Estimated time spent on replying to this request

X hours, y minutes

Recommendation (12): FOI Log d) The FOI log records the source of FOI requests where possible (e.g. journalists, members of the public etc.) and it is required to be completed. This should be reported quarterly e) Officers are required to complete the FOI log information for time taken to respond to a FOI request. This should be reported quarterly f) All Councillors should be provided with access to the FOI log to review FOI requests made and responses provided

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6.105

According to ICO guidance, every enquiry does not have to be formally treated as a request under the Act. For example, a customer enquiry would be dealt with under the usual customer service procedures. The provisions of the Act need only to come into force if:

You cannot provide the requested information straight away; or

The requester makes it clear they expect a response under the Act.18 o Ensuring consistency across the council 6.106

In order to ensure consistency across the council, support is provided to services in a number of ways:

There are nominated champions in most departments areas

Admin support is provided from corporate workplace support

Legal support is provided from legal services and in particular, the LADIL

Training/experience of staff in each area

Response templates are available to use, including those using exemptions

There is a central log for all services to complete

There is a mandatory e-learning course for all staff 6.107

The Commission sought to consider consistency in response to FOI requests across the council and therefore invited the FOI ‘champion’ for the Planning and Development Service to a meeting on 2 July 2018 to understand how requests were dealt with in this area.

6.108 In the Planning and Development Service, all officers are required to understand their

responsibilities regarding FOI requests so that they can recognise a request when received. When received, an FOI request is logged onto the central log, which identifies who would be dealing with the request and also the deadline for response. Officers look to see if previous requests have been received that are similar and ascertain who they need to contact for a response. Contact is also made with the LADIL if they are unsure about the use of exemptions or charges, to ensure they are consistent with the legislation. Within the planning and development service, very few requests exceed the 20 working day deadline for response.

6.109 The LADIL identified the following in terms of consistency across the council:

Designated FOI champions are not nominated in each department

There is mixed experience and knowledge of FOI amongst staff across the council

There are mixed approaches to completion of the FOI log which have been detailed in this report

In some circumstances the wrong templates are used for responses (e.g. providing the old council address)

There is no consistent use of the reference numbering system in the FOI log when providing response so it is difficult for the LADIL to determine which requests have been responded to

Not all staff forward on the response provided to the LADIL so in some cases it is not known if a response has been provided

Some staff do not provide enough detail/explanation if an exemption has been used

18 ‘What should we do when we receive a request for information’ https://ico.org.uk/for-organisations/guide-to-freedom-of-

information/receiving-a-request/

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6.110 As part of the “mystery shopper” exercise two of the four requests submitted anonymously to the council had used the wrong template which meant that incorrect details for the ICO were provided (the Officers who responded were notified in order to rectify this as soon as possible). Further work also identified that the compulsory online learning course for all staff was not completed by a number of staff (this information has been relayed to service managers).

6.111

This review showed that there were currently a large number of officers across the council responding to requests and in some cases the response was passed to other support officers to send out. This means that it is not always the most appropriate officer/expertise that responds to/sends out the request. There is a potential therefore for a lack of consistency/understanding of this complex area of law that requires additional advice/support from the LADIL.

6.112

The Commission identified that there were a number of areas where improvements could be made to ensure consistency across the council (see paragraph 6.108); this resulted in additional time and support required from the LADIL. It was considered that consistency could be improved if the number of officers responding to FOI requests was reduced and the knowledge and understanding of those officers who are responding improved. It was considered that all responses could be sent out by a single FOI Officer (the LADIL) and that Officer is provided with a list of officers within the various council sections who can be contacted to collate/provide the information and discuss where exemptions should apply.

V. How are internal reviews undertaken? o What is the policy/process? 6.113

The internal review process background information and legislation can be found in paragraphs 6.13 – 6.17. If a requester is unhappy with the response to an FOI request, they can request an internal review. If they are not satisfied with the outcome of the internal review then they can request an independent review from the ICO. Every response issued by the council to an FOI request should provide details of how to request an internal review and on-going rights with respect to a further complaint to the ICO. Requests for internal reviews must be within two months of the council providing a response. The council aims to undertake the review and issue responses within 20 working days.

Recommendation (13): Consistency

a) All responses to FOI requests should be provided by the LADIL in consultation with the services involved

b) A small number of FOI contacts (with appropriate training) to be provided in

all services, to be responsible for providing information to the LADIL within the response timescales

c) The LADIL should have responsibility for completing the FOI log

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6.114

The table below sets out the number of internal reviews conducted from 2013/14 until 2017/18:

Year Total Number of Requests for Internal Reviews

2017/18 12

2016/17 8

2015/16 4

2014/15 1

2013/14 0

This shows that the numbers of internal reviews has increased every year (as has the number of FOI requests received) with a total of 12 being received in 2017/18. When the 12 requests received in 2017/18 are considered 10 (83%) of them supported the original response and 2 led to additional information being provided.

6.115 All of the council’s CIPFA Nearest Neighbours stated that there was an internal review

process in place; however this was not documented formally which is comparable to HBC. 6.116 Information was requested from the council’s CIPFA Nearest Neighbours to provide a

comparison of the number of internal reviews undertaken. The table below shows the number of internal reviews for the council compared with our CIPFA Nearest Neighbour’s for 2017/18:

6.117 The graph above shows that in 2017/18, the council received more than the average number

(seven) of internal reviews compared to our CIPFA Nearest Neighbours. 6.118 The table below shows the percentage of internal reviews requested for 2017/18 compared

with the total number of requests for the council and the CIPFA Nearest Neighbours:

12

0

1617

8

10

21 1

7

0

3

12

4

0

2

4

6

8

10

12

14

16

18

Number of Internal Reviews for 2017/18 Compared with CIPFA Nearest Neighbours Internal Reviews

Average

34 | P a g e

6.119 The graph above shows that the council is above average in terms of the number of internal

reviews requested in comparison with the total number of requests received. Horsham District Council has the highest % of internal reviews compared with the total number of requests in 2017/18 and Mid Sussex and Stafford Councils have the lowest percentage of internal reviews compared with the total number of requests.

6.120

In the customer survey, the majority of respondents (nine) stated that they were provided details of how to request an internal review in the response to a request. This is to be expected as the council’s policy is to provide details of how to request an internal review in every response provided as this is included in the response templates.

6.121 In the “mystery shopper” exercise, all responses provided details of how to request an internal review.

6.122 None of the council’s CIPFA Nearest Neighbours had a formal written internal review

process. This is consistent with HBC where the internal review process is not provided in a formal document but is instead detailed in all responses sent. It should also be noted that the provision of an internal review process is consistent with the approach undertaken by the ICO (information review process) and other statutory internal review processes such as those required by the Assets of Community Value Regulations (part of the Localism Act).

o Who undertakes internal reviews?

o Could there be potential conflicts of interest? 6.123

ICO guidance states the following about internal reviews (see also see paragraphs 6.13): Councils should:

“ensure the review is done by someone who did not deal with the request, where possible,’ and ‘preferably’

1.36%

0.00%

1.86%

2.70%

1.07%1.25% 1.25%

0.16% 0.21%

1.11%

0.00%

0.39%

1.98%

0.54%

0.00%

0.50%

1.00%

1.50%

2.00%

2.50%

3.00%

Percentage of Internal Reviews Compared with Total Number of Requests Received for 2017/18 Average

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‘be undertaken by a more senior member of staff” (the updated Code of Practice supports this approach)’ 19

6.124

At HBC, when a request for an internal review is received a case management file is opened and the Chief Solicitor arranges for a senior officer (who was not involved in the original request) to undertake the review. The nomination of the appropriate officer is determined by the availability of senior staff and those who were involved in the original request, in all cases the nominated officer is more senior to the officer who responded to the original request. In some cases the Chief Solicitor will undertake reviews if appropriate, and if sufficiently independent. Where possible, the senior officer is chosen from a council department that is unrelated to the subject matter of the request. Senior officers are selected from Directors, the Principal Lawyer (not after 2016/17) and Heads of Service. The nominated officer reviews the request, the response and the way it was handled, the Chief Solicitor provides advice on the requirements of the law.

6.125 The table below shows the senior officers that had undertaken internal reviews and for which

service in 2016/17:

Senior Officer Undertaking Review

Legal Services

Culture, Tourism

and Sport Community

Planning and development

Revenues and Welfare

Head of Parks

Head of Organisational, Development and Improvement

1

Director of Corporate Affairs

2

Chief Solicitor

Head of Safer Communities

Head of Culture, Tourism and Sport

1

Director of Community

Head of Finance 1

Principal Lawyer (only to 2016/17)

1 2

Cancelled (by requestor)

V The following table shows the senior officers that had undertaken internal reviews and for which service in 2017/18:

Senior Officer Undertaking Review

Legal Services

Culture, Tourism

and Sport Community

Planning and development

Revenues and Welfare

Head of Parks 2

Head of Organisational, Development and Improvement

1

Director of Corporate Affairs

1

Chief Solicitor 3

Head of Safer Communities

1 1

Head of Culture, Tourism and Sport

1

19 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722165/FOI-Code-of-Practice-July-2018.pdf

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Director of Community 1

Head of Finance

Principal Lawyer (only to 2016/17)

Cancelled (by requestor)

1

6.126 The tables above shows that the Director of Corporate Affairs, Chief Solicitor and Principal

Lawyers have conducted the most internal reviews in 2016/17 and 2017/18. All of the internal reviews were conducted by a member of staff who was not involved in the original request and they were also conducted by a more senior officer than the member of staff who provided the original information. Furthermore, of the 20 internal reviews undertaken, 18 of these were conducted by a senior member of staff from a different service. In 25% (five) of the internal reviews undertaken additional disclosures were made.

6.127 The majority of the council’s CIPFA nearest neighbours stated that internal reviews were

coordinated by legal services, which is comparable to HBC. All of the council’s CIPFA nearest neighbours stated that internal reviews were undertaken by an officer who had not previously been involved in the original request, again comparable with HBC.

6.128

At Craven District Council, all complaints are coordinated by the IGM. Where internal reviews are requested they are undertaken by an officer who had not previously dealt with the original request. The IGM provides support for officers who conduct internal reviews, by providing a full briefing and draft response, guidance, details of any relevant precedent decisions and issues raised by the complainant.

6.129 When the ICO responds to FOI requests (see paragraph 6.25), they also have an internal

review process. If an internal review is requested from the ICO the following details are provided:

The ICO aims to respond within 20 working days

The internal review will not be handled by anyone who dealt with the original response

It may be necessary to consult the original request handler

It will be referred to someone with the appropriate level of seniority and expertise

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6.130

At HBC, all internal reviews have been undertaken by an officer not originally involved in the request. This is consistent with the process implemented by the ICO, in the new Code of Practice and the evidence from all CIPFA nearest neighbours. HBC also nominates a more senior member of staff that is ‘preferable’ in the ICO guidance. HBC also attempts to ensure that internal reviews are undertaken by senior officers of a different service; this is in addition to the guidance and is not a requirement in the new Code of Practice. It has been successful in achieving this separating in 18 of the 20 internal reviews identified/undertaken. In 25% (five) of the internal reviews undertaken additional disclosures were made.

6.131

As part of the work to consider Internal Reviews there was a suggestion that an external independent person could be employed/appointed by the council to undertake this. There was no evidence received that this approach was used by other authorities, including the ICO itself, and therefore no analysis/comparison could be undertaken. It was also noted that the ICO was in place as the independent body that members of the public could refer the way in which their FOI requests had been dealt with.

6.132

The Commission also considered that the number of referrals and decision notices about HBC FOI requests to the ICO could be a potential indicator about the appropriateness of the existing Internal Review process. This is considered in more detail in paragraphs 6.136 – 6.143. However, in summary there were no ICO decision notices issued in 2017/18 as a result of referrals and only two in the last five years. This is a low number and does not provide an indication that internal reviews are not being undertaken effectively.

6.133 The Commission considered that the Internal Review process in place at HBC was

consistent with the process implemented by the ICO, the new Code of Practice and all CIPFA nearest neighbours. The process also exceeded ICO guidance requirements by being successful in ensuring that more senior officers undertook the review and that in the significant majority of reviews (18 out of 20) they were carried out by senior officers of a different service. There was no evidence from other similar authorities regarding the use of an independent person to undertake reviews. There was also no evidence of significant numbers of referrals to the ICO with subsequent decision notices that would indicate dissatisfaction with the current process. The Commission therefore considered that the existing internal review process operated appropriately and exceeded ICO guidance. It noted that the ICO was also available as an independent organisation set up to review responses to FOI requests on behalf of members of the public. It considered however that this could be reviewed if there were any future proposed changes to the current review process or significant increases in the number of decision notices as a result of referrals to the ICO.

o Where are they reported? 6.134

The quarterly performance report to Management Board, Cabinet and Overview and Scrutiny Commission includes information about FOI requests. The information includes the numbers of FOI requests and the number of internal reviews. The FOI process and information (including internal reviews) is also reviewed and reported in the Annual Governance Statement.

6.135 At Craven District Council, the number of internal reviews is reported to management board quarterly. Information was not requested from the council’s CIPFA Nearest Neighbours on where the performance information for internal reviews was reported.

6.136 The Commission considered that the reporting of internal reviews as part of the quarterly

performance report was consistent with other authorities and enabled regular consideration including the Commission.

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VI. ICO Referrals o Harrogate Borough Council 6.137

If a member of the public has requested an internal review and is still not satisfied with the response then they can seek a review of the council’s decision by the ICO. The ICO will request all available information, review the council’s decision and resolve the issue informally or issue a decision notice (a decision notice may also state that the council has dealt with a request correctly). However, if the ICO determines that the council has breached the FOIA, the ICO can order the council to take steps to put things right through a decision or enforcement notice, see paragraphs 6.18 - 6.25.

6.138

The council provides information about potential referral to the ICO in all responses issued and all decision notices issued to HBC are available on the ICO website.20

6.139 The table below shows the number of decision notices issued from the ICO to HBC between

2013/14 to 2017/18. Year Number of ICO Referrals

2017/18 0

2016/17 2

2015/16 0

2014/15 0

2013/14 0

6.140

The council has only had two decision notice issued from the ICO since 2013/14. The two decision notices are summarised below:

1. The first decision notice found in favour of the council and did not require any further action. However, this was then appealed to the Information Rights Tribunal by the requestor, following which the Tribunal allowed the appeal. The Tribunal required the council to respond to the information request on the basis that it does hold the information within the scope of the request.

2. The second decision notice found the council breached regulation 5(2) and regulation 11(4) of the Environmental Information Regulations but that it correctly withheld information. No further action was required by the council.

o CIPFA Nearest Neighbours

6.141 The graph below show the number of ICO decision notices issued to HBC compared to our CIPFA Nearest Neighbours in 2017/18. Information regarding ICO decision notices for previous years was not provided by all authorities so this has not been analysed.

20 ‘ICO Decision Notices – Harrogate Borough Council’ https://icosearch.ico.org.uk/s/search.html?collection=ico-

meta&profile=decisions&query&query=&f.By+authority|publicAuthority=Harrogate Borough Council

Recommendation (14): A formal written internal review process should be developed and made publically available

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6.142 The graph shows that the council had less than the average number of ICO decision notices

for 2017/18. Horsham District Council had the highest number of ICO decision notices in 2017/18 (seven). Harrogate, Mendip, Stafford and South Kesteven council’s did not have any ICO decision notices in 2017/18.

6.143 Following referral to the ICO, if the complainant is still not satisfied with the review then they

can appeal the decision to the First-Tier Tribunal (Information Rights), this can be undertaken by either party. The Tribunal is independent of government and will review decisions made by the ICO and sometimes disagrees with the decision of the ICO.

Cumbria County Council recently appealed an ICO decision notice which upheld a requestor’s complaint. The Tribunal determined that the ICO’s decision notice was wrong in law and therefore the tribunal’s decision stood in substitution for the ICO decision notice

Craven District Council has been successful in contesting one ICO decision notice. 6.144 The Commission noted that the number of decision notices issued by the ICO for HBC was

extremely low in comparison with other similar authorities. It considered that the number of decision notices should be included as part of the quarterly performance report so that any increases could be monitored.

7.0 Conclusions 7.1 The Commission would like to thank everyone who contributed throughout the process

in particular, Rich Kemp, Legal Assistant (Debt and Information Law), Bernice Elgot, Chief Solicitor, Dave Clothier, Information and Systems Manager and David Roper-Newman, Information Governance Manager from Craven District Council. The

Recommendation (15): The number of decision notices received from the ICO should be included as part

of the quarterly performance report

0

1

2

3

4

5

6

7

8

Number of ICO Decision Notices in 2017/18

ICO Referrals

Average

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Commission recognised that the time and effort given to support its work and the timely responses to additional requests is reflected in the outcomes of the review process and final report.

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8.0 Bibliography ‘Data Transparency’

https://www.harrogate.gov.uk/info/20135/data_protection_and_freedom_of_information/381/data_transparency ‘Freedom of Information Act 2000’ https://www.legislation.gov.uk/ukpga/2000/36/contents ‘Freedom of Information Code of Practice’ – July 2018 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722165/FOI-Code-of-Practice-July-2018.pdf ‘Guide to Freedom of Information’ pg. 5 https://ico.org.uk/media/for-organisations/guide-to-freedom-of-information-4-9.pdf ‘How to access information from a public body’ https://ico.org.uk/your-data-matters/official-information/ ‘ICO Decision Notices’- https://icosearch.ico.org.uk/s/search.html?collection=ico-meta&profile=decisions&query ‘ICO Decision Notices – Harrogate Borough Council’ https://icosearch.ico.org.uk/s/search.html?collection=ico-meta&profile=decisions&query&query=&f.By+authority|publicAuthority=Harrogate Borough Council ‘ICO Requests for Information Review Procedure’ https://ico.org.uk/media/about-the-ico/policies-and-procedures/1883/ico-review-procedure.pdf ‘Mid-Sussex District Council Freedom of Information Pages’ https://www.midsussex.gov.uk/about-us/freedom-of-information/ ‘Model Publication Scheme’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/publication-scheme/ ‘Monitoring compliance’ - https://ico.org.uk/action-weve-taken/monitoring-compliance/ ‘Secretary of State for Constitutional Affairs’ Code of Practice on the discharge of public authorities’ functions under Part 1 of the Freedom of Information Act 2000, Issued under section 45 of the Act’ - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/235286/0033.pdf ‘Time limits for compliance’ https://ico.org.uk/media/1622/time-for-compliance-eir-guidance.pdf ‘What happens when someone complains’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/complaints/ ‘What is the FOI Act’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/what-is-the-foi-act/ ‘What should we do when we receive a request for information?’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/receiving-a-request/

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‘When can we refuse a request for information’ https://ico.org.uk/for-organisations/guide-to-freedom-of-information/refusing-a-request/