Metropolitan Police 2

ENF0201053 &0/- 1 -

Information CommissionerJa Office

Merilyne DaviesHead of the Public Access OfficeMetropolian Police ServiceDirectorate of Information20th Floor, West WingEmpress State BuildingLillie RoadLondonSW61TR

Promoting public access to official informationand protecting your personal information

Dear

** August 2008

Our Case Reference Number: ENF0201053

Freedom of Information Act 2000

Thank you for your letter dated the 10acknowledging the positive ton¡i¡m~~i'histhe MPS' willingness to assist Q~Uh!~~ntl;ering

within the authority. 'I!:: ¡n¡UIIII,.I.!.I.!..'.,.'t.; ",iTq :'.':,f;;;\f'i... .~;!:iT" .,1At0~'i:!' "-'f~~~';::;!;lt;;"

In terms of addressiO~i!~a~mj~f the p~li!n¡tftn~¡'yoûr¡cg~respondence, we haveretained the headi;i;9t;,"ùsedliiinthe MR~:Wètter of the 10 July for your ease ofreference.

rt:?

(a) inforniation'f(m~qfisildéråt~()~;,,:;,1::;.1;;':1:1 ~ i" ". . t -) '.

Size .o~itH~~rg~m~atio~ Hlulh",3,"')""; S;:l",t¡¡

'njU~;~~:;,\ ' -"t~ni~&~, " ".ttUH1J+

The ih~~r!ration proviä~~. in rè'~pect of the 8,pale of the MPS' operation is veryhelpfui,'åi~~!;provides s~fue useful confext to the challenges the authorityfaces. In på~i~~iar, th~i~f;eer number of staff employed (understood to be inexcess of 50,O~R~.,¡~mW()f whom could receive a request for information,

obviously present~¡is:øme difficulties in ensuring consistently.

FolA Processes and Practitioners.

Given the scale of the organisation and the diversity of the operations itcarries out; we can appreciate why a devolved approach to FolA has beenadopted.

However, we are pleased to learn that this approach is under review as in ourexperience; authorities in which all (or at least a significant portion of)requests are dealt with centrally will be better placed to achieve improvementsin FolA compliance.

Information Commissioner's Office, Wyclìffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt; 01625545700 f; 01625 524510 ~qirajl~jco.gsi.gov.uk ww.ìco.gov.ukr .'..... '

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ENF0201053 &0/Volume of requests


Information Commissioneris Office

Thank you for providing information on the number of requests received bythe MPS. As you have pointed out, 9541 (total from January 2005 - June2008) requests is a significant number and it is possible that the rising profileof information rights will increase this figure further.

% Responses Sent

We would like to request some further clarification on thE1¡preakdown offigures provided, in order to ensure that we have proPrr¡1lWunderstood the

information provided so far. We ask as the percent~~rr¡¡~f response types

appear to breakdown as demonstrated below, w~j~ll¡ílèflN'jes 9% of responsetypes unaccounted for: i1¡¡W'ìH!I"

7% -

26% - s40 applied as the request is for

25% - Information provided in full

10% - Partial disclosures

9% - Exempted in full

8% - information

6% Withdrawn,i;jlblii¡\;;\

Total..;91 Yo

'¡;tÎii:l"

own ~~fs~oai datatrft'i;;;;

As matter~l'~tr¡rsic to~m# section 50 complaints we receive usually form theCommissionêTilfll~!a,~i~!f&r deciding whether to pursue enforcement action, wedo not ordinarii,ìia~msjåer their volume as apercentage of the total number ofrequests received'oy an authority.

We do however recognise that the information the MPS has provided oninternal reviews is encouraging as it suggests that the majority of requestersare satisfied with the initial response received.

In terms of gauging the MPS' performance in this respect against otherauthorities, we do not routinely collect information of this type, although wewil invariably be provided with some indicative figures as part of ourmonitoring activities. The most comprehensive information on the number ofinternal reviews I section 50 complaints submitted in relation to the

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow. Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: maílêico.gsi.gov,uk www.ico.gov.uk

ENF0201053 &0/- 3-

Information Commissioner's OfficePromoting public access to official information

and protecting your personal information

percentage of requests received is proauced by the Ministry of Justice as partof their quarterly and annual reports qrlFQI within central government. Thereport for 2007 can be accessed on ifne af

http://ww. justice .gov. uk/docs/foi-report -2007 -final-web. pdf

Although the Department's highlighted in the report are not directlycomparable to the MPS in terms of size, scope, or the nature of theirresponsibilities, we have reproduced some examples (fo,9¡~sing on those withhigher request numbers) of the number of internal revitJl'rfisH section 50complaints submitted in relation to the total number;~~¡(equests overleaf. Wehope these will be helpful to the MPS. ,,¡fiiiiHU

t ~ ~ t if- t

NB: Figures in brackets express a percenta,~~I~fthe num'ß~Hi¡gt requestsreceived. .

Cabinet Office 27 (4%)

18 (1%)

41 (3%) 26 (2%)

Department of 54 (4%) 18 (1%)Health

HM Revenue and 1,154 39 (3%) 10 (1%)Customs

National Archives 5,405 16 (~ 1 %) 0(0%)

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625545700 f: 01625 524510 e: mailêico.gsi.gov.uk www.ico.gov.uk

ENF0201053 &0/-4-

Information Commissioner's OfficePromoting publíc access to official information


As we have touched upon earlier, we are pleased to learn that the internalreview process is subject to review. Many of the authorities we have workedwith, particularly those who have had Iipiited formalised FolA processes priorto our intervention, have chosen to adopt awholly centralised approach.

,

Whilst this works well for many public bodies, the sheer size of the operationwould undoubtedly present a challenge to implementing such a system at theMPS, unless significant additional resource was allocated to the PublicAccess Office for this purpose. In light of this, we would ~LJggest that the MPSconsiders centralising as much of the request handlin~i;~~¡possible, butthat primarily, it seeks to build upon the existing m?R;~!illl1 this context werefer to the existing model as retaining a centraIG~n~I~~I~~IA practitioners tolead on request and review handling, whilst drft~il~g upd~I~~Pport fromrelevant staff in the Borough Operational CQ,immrand Unitsäijp)¡"the Operational

Command Uni'ts. ;wiit" 'qlS~L

ntH"J'

.~ f ¡; .~ ,t ti"; "'-\

Letter Response(2)

¡;ili;'1;t,

We arewithin thecommitment to

the MPS has resourced FolAby the authority's

which may arise.

(3)j¡il¡¡¡¡:i'"(3.1Ha)

';,,;:/; r,'.

\""f.'

'I:ìHh:i;'k:t"idl:jIli

We re~Ó~I~¡~~ that ther~lume of requests received by the MPS makes it

difficult tod~ffrr¡k each,j~f!~hem individually before they are issued (with theexception of tlfg~~,t~~~'fi from the dip sampling). However, in light of the MPS'comments on reT4~~I;inotices issued by BOCU officers who have yet to gainsufficient experierìC:é in FoIA, if capacity allows we would like to suggest thatdraft responses from these officers are referred to the PAO for commentbefore they are issued.

In respect of the Q&A measures, we consider the inclusion of this within theexisting procedures to be a very positive development and very much hopethat the Senior Management Team review will find in favour of adopting suchan approach.

Moving on to the application of exemptio~s, we would always expect anauthority to consider the substance of the information requested beforeapplying an exemption, but experience tells us that this is not always

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: maiicgico.gsi.gov.uk ww.ico.gov.uk

ENF0201053 &0/- 5-

Informa'tion Commissioner's OfficePromoting public access to official ínformatìon


happening, as the recent practice recommendation issued to the Departmentof Health demonstrates. It is therefore reassuring to note that, with theexception of National Security cases, the MPS ensures that the actualinformation requested is considered before applying a section 17 (4)exemption. We are also encouraged by the MPS' commitment to challengethe 'need to know' culture, and we recognise that this is something that wilnot be accomplished overnight. If there, is anything the Good Practice arm ofthe Good Practice and Enforcement Têam can do to assist the MPS in thischallenge, we would be pleased to offer ouf support.

!

\,N;;,:¡t;;'i

We have been interested to learn that the PAO do~~!~Wi¡~lwayS have accessto information covered by the National Security ~nmi¡p~ì~iain order to conduct

reviews or appeals. Clearly, this would have ~d9e'~rìh1entå'l'¡il~1Pact upon the

MPS' capacity to carry out reviews and app,n~,~¡effectively:¡a~~would

frustrate the authority's ability to demonsw~~eiconformity with~~~iprovisions ofthe section 45 Code of Practice. Whilst¡w~iåre enco~raged by tneì¡~n~ent

increase in the PAO's ability to access td¡~l\itf info~m~tion, we renìäi~'concerned that decisions may be taken wit~~Htl¡1~I¡i~'ccess to thecorresponding information. As 'Yr~¡Mnderstand¡t"~~tthiS will be an area of greatsensitivity, we wish to discuss t~i~i~it~hthe MPS¡¡r~lli;ore detaiL.

Thank you for CO~ñ~ig~::m~n~ei:;~~w~¡l:~:~kl~g, approach is no longerin use. Thank YÇ?,l¡'¡ålso for ya~~ clarificå:~i~n on why this approach was

d rt k . th'i.t_ :1 f 1:;'un e a en in e~ft~~..' im¡

In res~l1ff~i~tl~~~IOOPSq¡*"~r dated thtl¡~9 J,~ne2007, having spoken toCar9l~~¡IHowes,Nl~;ß ha~í~~~ponsibility for investigating the case) I amadvi~*~.that we do!Hi¡~tirOld;¡~IRepy of correspondence dated 19 June 2007.CarolY~IUfls however'i~hplained:¡that we do hold correspondence dated the 20June 20Ø¡lll¡put that thi~l~oes not appear to require a response. Would it bepossible f¿p~nrr MPS te!~Upply a copy of the letter dated 19 June 2007 so weare able to dl~Qkthi§'l~g;ainst the information in our case managementsystem? ':';;111/1P;

In terms of a more general update on the status of the~ase, I amadvised that a Decision Notice has been drafted and is with the signatoryawaiting sign off. In view of the age of the case, Carolyn has requested thatthe signatory prioritises the case and we very much hope that we will be in aposition to issue the Notice shortly.

1 t~¡ :¡j ¡''It Y" f Lt J f n,:'~'i:;:¡;¡'

Thank you for your comments on the response issued to Werecognise that 'question and answer'style requests can present somechallenges, as they do not necessarily seek recorded information and often,l~Information Commissioner's Office. Wycliffe House, Water Lane, Wìlmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: maili§ico.gsì.gov.uk ww.ico.gov.uk

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Informa'tian CommiesionerJs OfficePromoting public access to official information

and pr-otecting your personal Information

attempt to elicit thoughts and opinions. We are however pleased to see thatthe MPS recognises that the exemptions quoted in this case should havebeen expanded upon.

We are encouraged to learn that a reminder note will be issued topractitioners in respect of the application of sections 30 ClOd 31 in tandem.

,¡ilíiiiiii::::'Thank you for explaining the reasons why::: .ê~t¡)tst was not

handled appropriately. We are pleased to nfl~~ithat a remii1ll;ffr:;\Jill be issuedto staff which will advise how requests mM;~tib'ê handled by thel~~ganisation.

-';;; t t: i ~¡fiji'

, ¡: l' _~ :¡ ~. ): ::. _'i;;r I: i ~-

1. We are grateful for the G!ani;f.ication on;t~~H~sue of letter templatesf ;: ~,

ri"~p

We recognise that the duty to confirm or deny can present some uniquechallenges to authorities holding sensitive data, particularly if that data relatesto matters of national security or similar.

Information Commissioner's Office, WycliffedHouse, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 è: maí~~ico.gsi.gov.uk ww.ico.gov.uk

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ENF0201053

Information CommisalonerJe OfficePromoting public access to official information

and pr-oteeting your personal information

This is something that we would like to discuss in person, but in the meantimethe decision of the Information Tribunal in the case of Baker v the InformationCommissioner and the Cabinet Office (£Al2006/0045) may be helpful in thisregard, a copy of which is enclosed for your convenience.

Thank you for your comments of th~case, which I will ensure areadded to the relevant case files (as with the other informc¡,tion relating to opencases). As the case is yet to be investigated proper, ":m!fl~' not wish toprematurely indicate whether or not the MPS was ~Rn~W.(t\ to neither confirmnor deny whether the information was held. Ho""~~~rhtl~;fecognise that itwould be helpful to explain why this refusal fihciude¿h~,s!;~n example in our

last letter to you. Essentially, this was an of a re~U~~J which causedus concern as it invoked numerous with very Iittieiertplanation asto why they applied. Peek(3.1)(b)

Our previous letter to the MPS !~#Me¡¡n~t~rence decision of theInformation Tribunal in Bowbrickq~I'Ndltitii.~Ú~~ . This referencewas included in order tR¡~~plain thatii~he f~~t!~~flt1~~ is introducedafter the initial refus~Il~~e~m!~t in itš~lt,~i~~ntitléé;~lauthority from relyingupon it. However/¡'M~¡went ~~¡to exp1aini'that the Commissioner wouldinevitably find tlW~¡the authori~~ had bre;~flhed the requirements of section 17by failing to inforrllt¡~,r aPPli~~¡n;t1Rithe e~~rnption it sought to rely on withinthe approp~i,c¡te time~mc¡t~!li¡¡;'¡i:;h!n¡L . '.

¡¡iUIUIlIUUllIlli¡ P¡lll!!!: I;'l¡;'.MOf~¡~~4Jent TrilJlí~¡'i~;:dedi~i¡~~s (specifically King v Information Commissioner& tf~lr:epartment fdi¡iWork''a1td Pensions (2008) and Mclntyre v InformationcomWJ~~~~oner & MinJ~l~ of iJlJj¡mce (2008)) have resulted in further

c1arificafi~~¡Rn the issu;~ipf refusal notices (section 17) and internal reviews.As there i~rå¡I~Hmber ~nWeveloping policy lines in this respect we would like todiscuss thesetis:sLle,sdi,i;íperson.

't In the meantime arid in response to your request for clarification on the ICO'sI final guidance on how PA's should be condUcting reviews and appeals, I canI confirm that we expect reviews to be carried out in accordance with the¡ section 45 Code of Practice.

In terms of the confusion arising from the advice provided by members of theCommissioner's staff appearing on public platforms, I can only apologise if

i Available at

http://ww. informationtribu nal. gov. u k/Documents/decisions/Dr%20 P%20Bowbrick%20v%201nformation%20Comm issioner%20and%20Nottingham%20C ity%20Council%20(28%20September%202007)v7307. pdf

Information Commissioner's Office, Wyclìffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: maillêico.gsì.gov.uk www.ico.gov.uk

ENF0201053 &0/- 8-

Informa'tion Commissioner's OfficePromoting public access to official information


this has been the case. I have ensured that Gerrard Tracey, the AssistantCommissioner for FOI Good Practice and Enforcement, is aware of the MPS'concerns in this respect.

Consideration of Current Guidance and Case Law Against Old Cases

We are grateful to you for taking this opportunity to raise the MPS' concernson the application of current case law and guidance when consideringrelatively early requests. Regrettably, this is due in part '~c,'he backlog of FOIcases. As cases await allocation, case law and in pa~iff~t~r, Tribunal casesprogress, resulting in new lines to take on the interRc~~~~ti'on of the Act. It isunfortunate that this can have the effect of consi9m~ijìg:i~Rauthority's

response in the context of case law which wa~in~~iavaiiå~i~c¡to them at the

time the request was made and we very mu(~~lregret that tf;¡ft¡,~as had ademoralising effect upon practitioners atJ~~if\PS. Where pOS$!,~!~, we do try

to reflect the status of the CommissiOn~ri~!cguidanc~nft the time ofi~~e requestand you may wish to view the Decision N1'~tjFe issLlteijiin case FS5011¡47679 foran example of this: '. . '..

http://ww. ico.gov. Uk/upload/ci8ÜWilents/d~ci~¡~~~otices/2008/fS 50147679 .pdf ,,,c"Huu,, ¡'Hil,."HP "'qfffH~.~.;~.,¡;~.'._:;: y"-""'"~ ., ..C,'k ,!;,t;"t1th,

Page 6 of this Deci~ìßm~li~i: exp;¡~lh~¡ni~~~MII~I~'~uthori did notconduct an internfHpeview wj~m,in the'ti~~frame stipulated by the

Commissioner i~!lf9ood Pra5tt~e GUid~ijffe No 5' published in February 2007,that the delay occi¡ri¡ed befll¡q~itJ;lepublicÇltjpn of this guidance on the matter.

? ¡, :j' ì i:j l' \ ; J:; :( 'j .~,

John-Pierre Lamb - FOI Enforcement MÇlmager

Jo Stones - FOI Enforcement OfficerJo Pedder - Team Leader, Education Police and Justice

If the meeting is to be held here in Wilmslów, we will also endeavour tointroduce to the complaints officers handling MPS cases and to other memberof the FOI Enforcement and Good Practice Team as appropriate. We wouldbe grateful if you could indicate your preferences for the location and probabledate of the meeting. We will then ensure that the necessary arrangements are

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mailêico.gsLgov.uk www.ico.gov.uk

ENF0201053 &0/- 9-

Information Cammissioner*s OfficePromoting public access to official information


made. A draft agenda is provided at annexe one. Please feel free to suggestfurther items as required.

We would also be grateful if the MPS could p'rovide clarification on thebreakdown of % of responses, as requested in page two of this letter (inadvance of the meeting).

In closing, we would like to reiterate our thanks for thehas responded to our concerns so far. We very muchwith you and your colleagues to resolve ourpractice.

If you should have any questions, please me.

Yours sincerely

Jo Stones

(FOI) Enforcement Officer

Good Practice and

Enclosures

the Cabinet Offce (1Al2006/0045)

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: maílêico.gsì.gov.uk ww.ico.gov.uk

ENF0201053 &0/- 10-

Informa1;ion Commissioner's Office

Annexe onePromoting public access to official information


Draft Agenda

1. Introductions

2. Outline of the Enforcement Strategy / Enforcement Team's role

3. Reasons for the Information Commissioner's intervention:

(b) Additional exemptionssection 50 investigations

course of the

(a) Explanation of the application of limited or generic

(c) The timescale for

(d) review

4.

(b)

5.

6.

Reviews (recent Tribunal Decisions)

r-t

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mailêico.gsì.gov.uk ww.ico.gov.uk

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Informat:ion CommisaianerJs Office

Merilyne DaviesHead of the Public Access OfficeMetropolitan Police ServiceDirectorate of Information20th Floor, West WingEmpress State BuildingLillie RoadLondonSW61TR


12 August 2008

Our Case Reference Number: ENF0201053

Dear

Freedom of Information Act 2000 (FoIA): Audit of Complaints

Thank you for your letter dated the 10 July 2008. We would like to start by acknowledging thepositive tone of this response. We are very encouraged by the MPS' willingness to assist usin furthering our understanding of FolA within the authority.

In terms of addressing each of the points in your correspondence, we have retained theheadings used in the MPS' letter of the 10 July for your ease of reference.

(a) Information for consideration

Size of the organisation

The information provided in respect of the scale of the MPS' operation is very helpful, andprovides some useful context to the challenges the authority faces. In particular, the sheernumber of staff employed (understood to be, in excess of 50,000), any of whom could receivea request for information, obviously presents some difficulties in ensuring consistency.

FolA Processes and Practitioners.

Given the scale of the organisation and the diversity of the operations it carries out; we canappreciate why a devolved approach to FolA has been adopted.

However, we are pleased to learn that this approach is under review as in our experience;authorities in which all (or at least a significant portion of) requests are dealt with centrally willbe better placed to achieve improvementsin FolA compliance.

Information Commissioner's Office, Wycliffe House,.yVater Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mailêico.gsí.gpv.uk www.ico.gov.uk

ENF0201053 &0/- 2-

Information CommissionerJa Office

Volume of requestsPromoting publíc access to official information

and pl'oteeting your personal information

Thank you for providing information on the number of requests received by the MPS. As you;¡

have pointed out, 9541 (total from January 2005 - June 2008) requests is a significant'

number and it is possible that the rising profile of information rights will increase this figurefurther.

% Responses Sent

We would like to request some further clarification on the breakdown of figures provided, inorder to ensure that we have properly understood the information provided so far. We ask asthe percentage of response types appear to breakdown as demonstrated below, whichleaves 9% of response types unaccounted for:

26% - s40 applied as the request is for the applicants own personal data

25% - Information provided in full

10% - Partial disclosures

9% - Exempted in full

8% - information not held

7% - information already publicly available

6% Withdrawn

Total- 91%

Reviews and Appeals

As matters intrinsic to the section 50 complaints we receive usually form the Commissioner'sbasis for deciding whether to pursue enforcement action, we do not ordinarily consider theirvolume as a percentage onhe total number'of reqUests received by an authority.

We do however recognise that the information the MPS has provided on internal reviews isencouraging as it suggests that the majority of requesters are satisfied with the initialresponse received.

In terms of gauging the MPS' performance in this respect against other authorities, we do notroutinely collect information of this type, although we wil invariably be provided with someindicative figures as part of our monitoring activities. The most comprehensive information onthe number of internal reviews I section 50 complaints submitted in relation to thepercentage of requests received is produced by the Ministry of Justice as part of theirquarterly and annual reports on FOI within central government. The report for 2007 can beaccessed on line at:

Information Commissioner's Office, Wycliffe House, Water Lane, Wìlmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mail(§ico.gsi.gov.uk ww.ico.gov.uk

. . .,

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~o/ENF0201053

Informaeian CommiseionerJe OfficePromoting public access to official information

.~. and protecting your personal information

http://ww . i ustice. gov. u k/docs/foi-report -2 007 ~fi na I-web. pdf" );

Although the Departments highlighted in the report are not directly comparable to the MPS interms of size, scope, or the nature of their responsibilties, we have reproduced someexamples (focusing on those with higher request numbers) of the number of internal reviews/ section 50 complaints submitted in relation to the total number of requests overleaf. Wehope these will be helpful to the MPS.

NB: Figures in brackets express a percentage of the number of requests received.

Cabinet Office 641 75 (12%) 27 (4%)

Department forTransport

1,878 18 (1%)

Department forWork and Pensions 1,259 41 (3%) 26 (2%)

Department of 1,286Health

HM Revenue and 1,154Customs

National Archives 5,405

54 (4%) 18 (1%)

39 (3%) 10 (1%)

16 (:: 1 %) 0(0%)

As we have touched upon earlier, we are pleased to learn that the internal review process issubject to review. Many of the authorities we have worked with, particularly those who havehad limited formalised FolA processes prior to our intervention, have chosen to adopt awholly centralised approach.

Whilst this works well for many public bodies, the sheer size of the operation wouldundoubtedly present a challenge to implementing such a system at the MPS, unlesssignificant additional resource was allocated to the Public Access Office for this purpose. In

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mailt£ico.gsi.gov.uk ww.ico.gov.uk

ENF0201053 &0/-4 -

Infarmat:ion CammisBionerJs OfficePromoting public access to official information

and protecting vour personal information

light of this, we would suggest that the MPS- Qçmsiders centralising as much of the requesthandling as possible, but that primarily, it seeks tQ,build upon the existing modeL. In thiscontext we refer to the existing model as retaining a central core of FolA practitioners to leadon request and review handling, whilst drawing upon support from relevant staff in theBorough Operational Command Units and the Operational Command Units.

In our experience, the key to making such a model work lies in the quality of training affordedto staff and to the creation of clear escalation procedures. This is something we would like todiscuss in person, and we would like to accept your kind offer of a meeting.

Letter Response(2)

We are encouraged by the extent to which the MPS has resourced FolA within theorganisation. We are also encouraged by the authority's commitment to tackle any individualproblems which may arise.

(3)(3.1) (a)

We recognise that the volume of requests r~ê~iv~d by the MPS makes it difficult to checkeach of them individually before they are issued (with the exception of those taken from thedip sampling). However, in light of the MPS' comments on refusal notices issued by BOCUofficers who have yet to gain sufficient experience in FolA, if capacity allows we would like tosuggest that draft responses from these officers are referred to the PAO for comment beforethey are issued.

In respect of the Q&A measures, we consider the inclusion of this within the existingprocedures to be a very positive development and very much hope that the SeniorManagement Team review will find in favour of adopting such an approach.

Moving on to the application of exemptions, we would always expect an authority to considerthe substance of the information requested before applying an exemption, but experiencetells us that this is not always happening, as the recent practice recommendation issued tothe Department of Health demonstrates. It is therefore reassuring to note that, with theexception of National Security cases, the MPS ensures that the actual information requestedis considered before applying an exemption. We are also encouraged by the MPS'commitment to challenge the 'need to know' culture, and we recognise that this is somethingthat will not be accomplished overnight. If there is anything the Good Practice arm of theGood Practice and Enforcement Team can d"Oito as.sist the MPS in this challenge, we wouldbe pleased to offer our support. ¡'::,

We have been interested to learn that the PAO does not always have access to informationcovered by the National Security exemption in order to conduct reviews or appeals. Clearly,this would have a detrimental impact upon the MPS' capacity to carry out reviews andappeals effectively, and would frustrate the authority's ability to demonstrate conformity with

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mail(Çico.gsLgov.uk ww.ico.gov.uk

ENF0201053 &0/- 5-

Informa'tion Commissioner's OfficePromoting public: access to official information

and protecting your personal intormatìon

the provisions of the section 45 Code of Practice. Whilst we are encouraged by the recentincrease in the PAO's ability to access to this information, we remain concerned thatdecisions may be taken without full access to the corresponding information. As weunderstand that this will be an area of great sensitivity, we wish to discuss this with the MPSin more detaiL. .,

Thank you for confirming that the 'form of undertaking' approach is no longer in use. Thankyou also for your clarification on why this approach was undertaken in the ase.

In respect of the MPS' letter dated the 19 June 2007, having spoken to Carolyn Howes, (whohas responsibility for investigating the case) i am advised that we do not hold a copy ofcorrespondence dated 19 June 2007. Carolyn has however explained that we do holdcorrespondence dated the 20 June 2007, but that this does not appear to require a response.Would it be possible for the MPS to supply a copy of the letter dated 19 June 2007 so we areable to check this against the information in our case management system?

In terms of a more general update on the status of the case, i am advised that a

Decision Notice has been drafted and is with the signatory awaiting sign off. In view of theage of the case, Carolyn has requested that the signatory prioritises the case and we verymuch hope that we will be in a position to issue the Notice shortly.

Thank you for your comments on the response issued to We recognise that'question and answer' style requests can present some challenges, as they do notnecessarily seek recorded information and often attempt to elicit thoughts and opinions. Weare however pleased to see that the MPS recognises that the exemptions quoted inthis caseshould have been expanded upon.

The MPS may find the recent Information Tribunai decision in the case of Fowler v TheInformation Commissioner and Brighton and Hove Council helpful in this regard. This can beviewed at:

http://ww. informationtribu nal. gov. uk/Documents/decisions/fowlerWebDecision. pdf

We are encouraged to learn that a reminder note will be issued to practitioners in respect ofthe application of sections 30 and 31 in tandem.

iaThank you for explaining the reasons why , request was not handledappropriately. We are pleased to note that a remiMder will be issued to staff which will advise

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mail(§ico,gsi.gov,uk www.ico,gov.uk

ENF0201053 &0/- 6-

Information CommiseionerJa OfficePromoting public access to official information


how requests must be handled by the organisation.

Turning to your answers to the separate questions (1-4):

1. We are grateful for the clarification on the issue of letter templates

2. In respect of the training options offered to IM and DM's (specifically ACPO DecisionMaker Training and ISEB training), we wonder whether there is scope to make thiscompulsory, particularly in respect of.the ACPO Decision Maker Training? Again, thisis something we would be happy to discuss' in person so we are able to fullyunderstand the implications of such an approach

3. We are encouraged to learn that dip sampling is conducted by the PAO and would beinterested to learn what percentage of correspondence is routinely checked in thisway, and of those the percentage of responses which the PAO considers to beunsatisfactory or similar. As above, we could discuss this in person if it would be moreappropriate

The Duty to Confirm or Deny

We are grateful for the clarification provided on the MPS' approach to neither confirm nordeny cases. We would not expect the MPS to search through previous requests in order toascertain beyond doubt whether there had been any incidences of information beingerroneously provided, and are satisfied with the explanations already provided.

We recognise that the duty to confirm or denycan'present some unique challenges toauthorities holding sensitive data, particulari~ïifthptdata relates to matters of national

security or similar. . .;

This is something that we would like to discuss in person, but in the meantimethe decision of the Information Tribunal in the case of Baker v the Information Commissionerand the Cabinet Office (lAl2006/0045) may be helpful in this regard, a copy of which isenclosed for your convenience.

Thank you for yoù'r comments of the 7 & case, which I will ensure are added to therelevant case files (as with the other information relating to open cases). As the case is yet tobe investigated fully, we do not wish to prematurely indicate whether or not the MPS wascorrect to neither confirm nor deny whether the information was held. However, we recognisethat it would be helpful to explain why this refusal was included as an example in our lastletter to you. Essentially, this was an illustration of a refusal which caused us concern as itinvoked numerous exemptions with very little explanation as to why they applied.

Information Commissioner's Office, Wycliffe Housg, Wat1ir Lane, Wilmslow, Cheshire, SK8 5AFt: 01625 545700 f: 01625 524510 e: maìll§ico.gsi.gov.uk ww.ico.gov.uk

-7 -

ENF0201053

.'b~-. &0/

Information Commissioner's Office

(3.1)(b)Promoting public access to official information

end pi~oteetjng your personal information

Our previous letter to the MPS made reference to the decision of the Information Tribunal in80wbrick v Nottngham City Council. This reference was included in order to explain that thefact that an exemption is introduced after the initial refusal does not in itself disentitle anauthority from relying upon it. However, we went on to explain that the Commissioner wouldinevitably find that the authority had breached the requirements of section 17 by failing toinform the applicant of the exemption it sought to rely on within the appropriate timescale.

More recent Tribunal decisions (specifically King v Information Commissioner & theDepartment for Work and Pensions (2008) and Mclntyre v Information Commissioner &Ministry of Defence (2008)) have resulted in further clarification on the issue of refusalnotices (section 17) and internal reviews. As there are a number of developing policy lines inthis respect we would like to discuss these issues in person.

¡

In the meantime and in response to your requestTor clarification on the ICO's final guidanceon how PA's should be conducting reviews and appeals, I can confirm that we expectreviews to be carried out in accordance with the section 45 Code of Practice.

In terms of the confusion arising from the advice provided by members of theCommissioner's staff appearing on public platforms, I can only apologise ifthis has been the case. I have ensured that Gerrard Tracey, the AssistantCommissioner for FOI Good Practice and Enforcement, is aware of the MPS' concerns in thisrespect.

Consideration of Current Guidance and Case Law Against Old Cases

We are grateful to you for taking this opportunity to raise the MPS' concerns on theapplication of current case law and guidance when considering relatively early requests.Regrettably, this is due in part to the backlog of FOI cases. As cases await allocation, caselaw and in particular, Tribunal cases progress, resulting in new lines to take on theinterpretation of the Act. It is unfortunate that this can have the effect of considering anauthority's response in the context of case law whi.ch was not available to them at the timethe request was made and we very much regret that this has had a demoralising effect uponpractitioners at the MPS. Where possible, we do ti to highlight new approaches resultingfrom Tribunal decisions and similar during investigations. We also try to reflect the status ofthe Commissioner's guidance at the time of the request in our Decision Notices and you maywish to view the Decision Notice issued in case FS50147679 for an example of this:

http://ww. ico. gov. uk/upload/documents/decisionnotices/2008/fs 50147679. pdf

Page 6 of this Decision Notice explains that whilst the authority did not conduct an internElI .review within the timeframe stipulated by the Commissioner in 'Good Practice Guidance No5' published in February 2007, that the delay occurred before the publication of this guidance

1 Available at

http://ww . informationtribu nal. gov. u k/Documents/decisions/Dr%20P%2 0 Bowbrick%20v%201 nformation %20Commissioner%20and%20Nottng ham%20City%20Council%20(28%20September%202007)v7307. pdf

Information Commissioner's Office, Wyclìffe House, Water Lane, Wìlmslow, Cheshire, SK8 5AFt: 01625 545700 f: 01625 524510 e: mail(§ico.gsi.gov.uk www.ico.gov.uk

"~ :..-,

- 8-

&0/ENF0201053

on the matter.

Meeting

Informat;ion CommissionerJe Office~.t:; Pròmoting public access to official information

and protecting your personal ínformation

We would be pleased to invite you and your colleagues to our offices to discuss the issuesraised in our correspondence to date. Alternatively, we would be pleased to visit the MPS'offices, particularly if this could be combined with any meetings / exchange of informationwhich would progress current cases.

We would like to suggest that the following ICO staff members attend such a meeting:

John-Pierre Lamb - FOI Enforcement ManagerJo Stones - FOI Enforcement OfficerJo Pedder - Team Leader, Education Police and Justice

If the meeting is to be held here in Wilmslow, we will also endeavour to introduce thecomplaints officers handling MPS cases and to other member of the FOI Enforcement andGood Practice Team as appropriate. We would be grateful if you could indicate yourpreferences for the location and probable date of the meeting. We will then ensure that thenecessary arrangements are made. A draft agenda is provided at annexe one. Please feelfree to suggest further items as required. .

We would also be grateful if the MPS could provide clarification on the breakdown of % ofresponses, as requested in page two of this letter (in advance of the meeting).

In closing, we would like to reiterate our thanks for the positive way the MPS has respondedto our concerns so far. We very much look forward to working with you and your colleaguesto resolve our concerns, and promote good practice.

If you should have any questions, please do not hesitate to contact me.

Yours sincerely

Jo Stones

(FOI) Enforcement Officer

Good Practice and Enforcement

Enclosures

Baker v the Information Commissioner and the Cabinet Offce (£A/2006/0045)

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mailC?ico.gsi.gov.uk ww.ico.gov.uk

ENF0201053 &0/- 9-

Information Commissioner's OfficePromoting public access to official information

and pr'oteeting your personal information

Annexe one

Draft Agenda

1. Introductions

2. Outline of the Enforcement Strategy I Enforcement Team's role


(a) Explanation of the application of exemptions limited or generic

(b) Additional exemptions introduced during the course of the section 50investigations

(c) The timescale for internal reviews

(d) The reconsideration of issues at internal review

4. Centralisation of request handling, toinGlude:

(a) Training of staff

(b) Escalation points

5. DIP sampling

6. Access to sensitive information (national security)

7. The duty to confirm or deny

8. Refusal Notices and Internal Reviews (recent Tribunal Decisions)

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AFt: 01625 545700 f: 01625 524510 e: mailêico.gsi.gov.uk www.ico.gov.uk

File Note - ENF0201053

New Case - 213444

Request dated - 25_07 _08

Refusal- undated

IR request - undated

IR result - undated.

IR outcome (does not conform to Part Vi of the s45 Code):

Dea~Thank you for your email below. This has been forwarded to the Sex offender Unit who

will deaL. As you have requested for a review, this email is not been treated as a freshrequest. I will communicate with you as soon as I have a response back from the unitdealing.

Many Thanks,

Abbey Adeboye

TPHQ Information Manager.

Dear"I have today receive a response back from Operation Jigsaw team and they stillmaintained their previous decision as shown beiow:

'We do not disclose data to borough leveL. So the answer stil remains the same. As for the

SOPs, no we don't have to disclose that either. So we have re-considered and the answer isstìl no."

Many Thanks,

Abbey AdeboyeTPHQ Information Manager.

,.h

Agenda - ICO I MPS meeting 6 November 2008

Wycliffe House, Wilmslow

:t~'"

Attendees:

ICO - John-Pierre Lamb (Enforcement Manager), Jo Stones (EnforcementOfficer), Carolyn Howes (Senior Complaints Officer), Ben Tomes (SeniorComplaints Officer)

MPS - Merilyne Davies (Head of Public Access Office), Bob Farley (Head ofInformation Compliance), Steve Farquharson (Group Director of InformationManagement)

1. Introductions

2. Outline of the Enforcement Strategy / Enforcement Team's role


a. Explanation of the application of exemptions limited or generic

b. The duty to confirm or deny

c. Additional exemptions introduced during the course of the

section 50 investigations

d. Timescale for internal reviews"

e. Reconsideration of issues at internal review

4. Centralisation of request handling, to include:

a. Training of staff

b. Escalation points

c. DIP sampling

5. Access to sensitive information (including national security)

(f 6. Refusal Notices and Internal Reviews

7. 'What do they know' examples

8. Transfer of requests (section 45 Code of Practice)

if

u

9. Information held (ascertaining the extent of before a refusal notice isissued)

10. Section 44 (1) and the Human Rights Act

11. ieo's expectations in respect of information provision during the

course of investigation

Date: 6 November 2008

Public Authority: Metropolitan Police Service (MPS)

Location: Wycliffe House, Wilmslow

AttendeesICO:

John-Pierre Lamb (Enforcement Manager) JPL, Jo StonesJS (Enforcement Officer), Carolyn Howes (SeniorComplaints Officer) CH, Ben Tomes (Senior ComplaintsOfficer) BT

Other organisation: Merilyne Davies (Head of Public Access Office) MD, BobFarley (Head of Information Compliance) BF, SteveFarquharson (Group Oirector of Information Management)SF

Reason for meeting: Enforcement meeting concerning compliance with theFreedom of Information Act and conformity with the section45 Code of Practice.

Contribution tobusiness plan:

Monitoring of public authorities' performance in relation toFOIA and EIR

Structured intervention e.g. advice, assessments, specialreports

KPI information 4 persons (2 from GPE + 2 from FOI Operations) x 4 hours

Associated filenumber

CMEH: ENF0201053

-n

SF provided background to MPS' approach to FOI. He explained thatinformation management as a whole had many varied, competing demandsabove and beyond FOI. In addition to the core FOI practitioners withininformation mana ement, there are between 70 and 80 staff members who

have responsibilities linked to FOIA across the authority.

The information management team are tasked, amongst other things, withmanaging the tensions between information sharing, FOI and Data Protection.In addition to satisfying the requirements of FOI IDP, tne reliability of data isclearly important for operational reasons such as statisfical reporting.

It was acknowledged that any police force has its roots within confidentialityand that many traditionally operate from a 'need to know' basis. Recognition ofthe need for change is there but it may take time for the new culture to embed.The MPS is committed to tackling this issue.

SF explained that compliance with section 10 is around 80% on average. JPLnoted that this figure was similar to the rate of compliance within centralgovernment bodies of comparable size. Further information can be found onthe Ministry of Justice's (MoJ's) website at:

http://ww.justice.gov.uk/publications/freedomofinformationquarterly.htm

SF explained that the MPS wants to achieve 100% compliance in respect ofsection 10, but there was recognition that this may not always be possible.Adherence to the time for compliance is a corporate performance measurewhich is reported to the senior management of the,¡MPS on a quarterly basis. Iti 'was also explained that FOI generally has visibility'at board leveL. Gettingrecognition of FOI at board level and making it a 60rpprate priority is seen as areal achievement for information management staff, and is welcomed by theICO.

All parties agreed that the MPS and the ICO could build a positive relationship,and the ICO will provide advice and support as appropriate.

The ICO also agreed to attend FOI seminars or similar within the MPS toprovide advice.

The ICO also agreed to inform the MPS of any trends or patterns in non-compliance / conformity emerging.

A general discussion on the following topics followed:

application of limited or generic exemptions'j

MD explained that this was largely a historic issue,altQ:Øugh CH pointed tosome examples from 2007 / 08. BT explained that exemptions should only beapplied to the actual information in question in order to avoid reliance ongeneral principles. JS added that in order to help avoid Decision Notices whichfind against the authority on a procedural basis, they should ensure that fullsection numbers, including the sub-sections are cited iìi refusals and internalreview responses. This is particularly important when relying upon part ofsection 30 or 31. CH explained that it would also be helpful if full sectionnumbers were quoted when corresponding with the ICO during investigations.

JS - Contact from the

Good Practice arm ofthe team to beprovided to the MPS.

JS - review of MPScases to be carriedout at the end of thecurrent financial year.Results to becommunicated toMPS

CH- List ofunallocated cases tobe provided to MD inorder that the relevantpaper work for each ...can be collated

hc'o I ~ \.,.

JPL added that quoting full section numbers should help the MPS to distil thereasons for non-disclosure more clearly.

- the duty to confirm or deny

It was recognised that NCND cases present some unique challenges. JSexplained that the MPS was not alone in finding this difficult, but that careneeded to be taken to ensure that NCND refusals were only issued where it isappropriate to do so.

c'..¡

- exemptions introduced during the course of :theaection 50investigations "It is accepted that information is fluid and that circumstances may changeduring the course of investigation. However, as JS explained, the ICO wouldhave concerns if the introduction of exemptions during the course ofinvestigation suggested that the refusal or the internal review had not beendealt with correctly. MD noted that there are numerous examples of the PublicAccess Office (PAO) overturning decisions at review stage, which helps todemonstrate that reviews are being handled thoroughly.

qt

- timescale for internal reviews

The text used in some MPS refusal notices reads as follows:

'In all possible circumstances the MPS wil aim to respond to your complaintwithin three months'.

MPS - to approachACPO with regard to

. , t internal reviewThis conflicts with the ICO's guidance on internal reviews which states that the \ timescales. IfCommissioner expects reviews to be conducted in20 working days, or 40 in \ appropriate, or if theexceptional cases. MD explained that the 3 months citè'din MPS refusals ' approach should be.originates from ACPO guidance. Discussion on how besrto approach this unsuccessful, the, iceissue then followed, with SF explaining that he thought it unlikely that ACPO (JPL) may appro~:ch ,iwould change its existing guidance in this regard. Following the discussion, it ACPO direct. Action

I;

vv.as decided that the MPS would purse the matter with ACPO direct - the ICO no longer required.

may approach ACPO separately about this issue.

JPL explained what may happen if delays with internal reviews occur.Essentially, an authority which repeatedly fails to adhere to theCommissioner's guidance (and by virtue of this the section 45 Code ofPractice), will receive a practice recommendation. The ICO has recentlyissued a recommendation to a central government department on this basisand this can be viewed at:

ICO - Review of

cases at the end ofthe financial year ,(JS)will consider internalreview delays asappropriate.

http://www . ico.gov. uk/upload/documentslibrary/freedom of information/notices/dclg pr 03 11 08.pdf

UPDATE - MD explained in a phone-call to JS on thç 7 November 08 thatthe latest ACPO guidance appears to have beeii.amEmded to reflect theICO's guidance. The MPS has amended its approaC¡J~accordingly.

';,i.

- reconsideration of issues at internal review

Please see comments made under '- exemptions introduced during the courseof the section 50 investigations' above. In addition, MD explained that aReview Officer has been appointed recently and that work on a review beginson the day it is received.

The ieo felt that there is some room for improvement with the content andscope of reviews and understands that the MPS will be looking into this.

- Centralisation of request handling ;, .

a. Training of staff

MD explained that geographical diversity of staff can present a problem. SFadded that it can be difficult to attract employees to the relevant posts. MDwent on to explain that Decision Maker training will take place next year andthat internal review training was to be offered to Information Managers.

In terms of more general information dissemination, Decision Notices andInformation Tribunal Decisions are distilled and sent to Information Managersin order to support continual learning. Furthermore, Information Mangerconferences are held on a 6 monthly basis and relevant FOI articles areplaced on the staff intranet.

SF recognised that there was scope for wider FOI training, with particularreference to new starters and long term staff that may not be familiar with therequirements of FOI. It was also recognised that there was scope to includeFOI in induction training and to make some elements of FOI trainingmandatory.

It was also suggested that it might be appropriate!to run intranet articles andproduce posters to boost staff awareness.

b. Escalation points

JS explained that clear escalation points, by which staff can clearly see thepoint at which they are required to escalate matters (and conversely so thatthe PAO can see the point at which matters need to be chased) are vital tooperating an effective decentralised system. MD assured the iea that theseare in place and provided some examples, such as the policy team chasingoverdue requests and referring the matter up as appropriate. SF explainedthat one potential bottleneck between the drafting of the refusal notice andsign off by the relevant officer had been identified as a result of this.

c. DIP sampling

The MPS carry out DIP sampling of responses, and JS enquired whether itwould be possible to provide statistics on the number of responses sampled,and the problems identified as a result to the ieo.

MPS - to considerwhether it would bepossible to provideieo with statistics

- Access to sensitive information (including national security) from DIP sampling.

All of the MPS representatives gave their assurance that this matter is close tobeing resolved. It is hoped that the appropriate security clearance will bearranged to allow the appropriate MPS staff to view information of this nature.BT and CH noted that access to sensitive information (but not necessarily thatcovered by sections 23 or 24) has been a problem in the past. MD and SFexplained that this should no longer be an issue moving forward.

- 'What do they know' examples

JS introduced two examples of requests to the MPS made via the 'what dothey know' website. These can be viewed at:

http://ww.whatdotheyknow.com/requestlcctv footage of stolen van brixt

and

http://www.whatdotheyknow.com/requestlanti terror campaignsuspicious p

The reputational risk of mishandling requests made via this site (and moregenerally) was discussed. JPL explained the problems experienced by RotherDistrict Council in order to put the risk into context. An example of some of theassociated media coverage can be found at:

http://ww.bbc.co.uk/blogs/opensecrets/2008/04/rotherbother.htm I

- Transfer of requests (section 45 Code of Practice)

A brief discussion on the transfer of requests and the recommendations of thesection 45 Code took place. As the MPS has received very few transferredrequests (and has transferred only a small number on) this was not thought topresent a problem at present.

- Information held (ascertaining the extent of before a refusal notice isissued)

SF commented that the MPS often hold information from third parties. JSqueried whether this had ever presented a problem. MD reassured the ICOthat should a request for information held on behalfof be received,consultation in line with the section 45 Code of Practice would be undertaken.

- Section 44 (1) and the Human Rights Act

CH explained that the right to privacy afforded by the Human Rights Act doesprovide a statutory bar in respect of section 44 (1). MD queried the basis ofthis approach as the MoJ appears to suggest the opposite.

A copy of the Tribunal decision which informed the ICO's approach wasrequested and this can be found below (EA/2006/0090 - see para 31):

J.~ ,

JS - to provide a

copy of relevantInformation Tribunal

decision. ActionCompleted.

JPL - to providedetails on the ICO'ssecurityarrangements inrespect of holdinginformation. ActionCompleted - papercopy provided to SF

SF has, requested that a follow up meeting be heldin ,9monthS time. JPL and JS have agreed and will GRiita~tthe MPS to arrange this in due course. u;.....

http://ww.informationtribunal.gov.uk/Documents/; :decisions/mrspbluckvi nformationcomm issioner( 17 sept2007). pdf

JS explained that much of the MoJ's website material is contained on thearchived Department for Constitutional Affairs site and that it may be out ofdate as a result.

ICO's expectations in respect of information provision during the courseof investigation

BT explained that the ICO expects to be provided with the exempt informationit requires to consider a case as a matter of course. The MPS representativesasked for details of the security arrangements here at the ICO so that they areable to reassure colleagues that information will be held securely.

JPL undertook to provide a copy of the ICO's security arrangements in thisregard. These details were extracted from the ICO's FOI procedures manuaL. Ifan electronic copy of this extract would be helpful, it can be provided.

Any other comments:

JS - to check contentof DCA site in respectof advice on s44 (1).Action Completed -referred to goodpractice.

.

.¡,,:' '

ENF0201053 - Metropolitan Police Service

Updated audit: Complaints received between 06,November 2008 (date of last meeting) and 2March 2009 (date of audit)

FS5022206 - 21 July S 10 - unable to provide With Team 2-.. 2008 some of info requested awaiting allocation.within timescale

S17 - Use of s40 notdirectly linked to DPAprinciple whencommunicating refusal toapplicant

"'015- 2008010005435 22 January NCND on refusaL. IR Open - awaiting2008 explains that info is not allocation

held.

FS50226781 - 25 & 17 Request to Chinford Police Closed- October Station - issues unclear2008

FS50227776 - 2008070007391 25 July Request for cost of Open - awaiting- 2008 informants - s30 & s31 allocationapplied in refusal

.227933- 2009010006680 12 S 10 - 44 working days to ClosedNovember respond (no PIT extension2008 ~ought)

FS50229063 - 2008110005346 17 No immediate issues Closed- November apparent2008

2008100003763 14 October NCND response.2008

IR delay - 42 working daystp respond

Open - awaitingallocation

2008110002689 Unclear

2008110000087

Possible s 10 delay

IR delay - 53 working days

Open - awaitingallocation

IR request of 26 Jan 2009 Open - with CSTappears to be outstanding

II

MPS INFORMATIONMANAGEMENT CONFERENCE ON

FOIA

Presentation Brief

Number of Delegates:Room Style:

9th March 20Q99am -13:0Q am (Lunch from 12:30)Briefing Room, 5th Floor, New Scotland Yard(Nearest tube: St James's Park)Approximately 85+

Lecture Theatre

Conference Date:Time:Location:

Presenter: John-Pierre Lamb -FOI Enforcement Manager:Information Commissioner's Office09:45am -10:45 - 50 plus 10 minutes question time.YesFolA in the Police Sector: Common Mistakes andMishandling

Presentation Time:PowerPoint Provided?Presentation Topic:

The Presentation Aims:The aims and objectives of the presentation is to provide the MPS FolA Practitioner(otherwise known as Information Manager or IMs) an understanding of the incidences of poorcompliance in which the ICO Enforcement Team is taking action on.

The specific areas to cover, which would be of benefit to the audience, are:. The role of the ICO Enforcement Team: What does poor compliance ultimately lead

to?. Public Interest Tests: What does the IÇO consider as best practice when applying

PITs? (It will be useful to refer what t,hé ICOconsider to be bad examples of PITs).. Applying Exemptions: When does the application of exemptions become blanket I

overused?. Common legislation application errors, which the ICO will take issue with.. How the role of the FolA Practitioner has an important part to play in terms of

organisation compliance

To ensure accessibility of the above topics it would be useful if the presenter refers to caseexamples, so that the subject is tangible. Equally, any materials, which can be later referredto by the audience members as reference guides will be very welcome.

For Further Information: Merilyne Davies (Head of Public Access Office)0207161 3554

¡\,

Information Commissioner's Office

John-Pierre LambFOI Enforcement Manager

~' .

MPS Information Management Seminar09 March 2009

FolA in the Police Sector: Common mistakes and mishandling09 March 2009

-1-

. iJ

Statutory definition of Enforcement

Part IV of the Act & Reg 18 of the EIR· Decision Notices

· I nformation Notices

· Enforcement Notices· Provisions for non-compliance with notices· Powers of entry and inspection

Decision Notices: (section 50 (3) (b)): This details the Commissioner'sfindings and in cases where information has been withheld, and explainswhether the authority concerned is required to provide the requestedinformation to the applicant. A Decision Notice may also detail proceduralbreaches of the Act. To date, six Decision Notices have been issued to MPSand these can be found at:

http://ww.ico.gov.uk/tools and resources/decision notices.aspx

Information Notices: (section 51 (1)):These enable the Commissioner toacquire the information he needs to investigate a section 50 (1) complaintthoroughly. Typically, they are reserved only for those cases in which anauthority will not voluntarily provide the information required.

Enforcement Notices: (section 52 (1)): These can be issued incircumstances where the Commissioner is satisfied that an authority hasfailed to comply with any of the requirements of Part i. In reality, the issue ofsuch a Notice is rare and is most likely to be used in the case of systemic orrepeated breaches of sections 10 (time for compliance) or 17 (refusalnotices). To date, only one Enforcement Notice has been issued and itsintention was to resolve the issues arising from a number of similar complaintsrelating to disclosure of advice given by the Attorney General on the legality ofmilitary intervention in Iraq in 2003.


-2-

:;,í;¡

The Notice can be viewed at:

http://ww.ico.gov.uk/what we cover/freedom of information/enforcement.a

spx

Provisions for non-compliance with notices: All of the above Notices canbe appealed to the Information Tribunal (section 57). Non-compliance with aNotice may be dealt with as contempt of court (section 54).

Powers of entry and inspection: (section 55 & schedule 3) If a circuit judgeis satisfied that (by information on oath supplied by the Commissioner) thereare reasonable grounds for suspecting that a public authority has failed or isfailng to comply with:

· Part I of the Act;· a Decision Notice which requires steps to be taken;

· an Information or Enforcement Notice or that an offence under section77 has been or is being committed,

~': i,

he may grant a warrant. Such a warrant wói.ld authorise the Commissioner orany of his officers to enter and search the premises, to inspect and seizedocumentation and to inspect, examine, test or operate any equipment onwhich information held by the authority may be recorded.

NB: Section 77 is the offence of altering records with intent to preventdisclosure. .

\ .


-3-

Enforcement duties and powers· Section 45 - FOI ("Access") Code

· Section 46 - Records Management Code

· Section 47 - general dutyto promote good

practice and observance of the Actand the Codes

· Section 48 - power to issue PracticeRecommendations in relation to s45and s46 (and EIR) Codes

· Section 49 - reports to Parliament

. ., í~, ,,,.,..,

The section 45 Code can be viewed 'at:

http://ww.dca.gov.uk/foi/reference/imprep/codepafunc.htm

The section 46 Code can be viewed at:

http://ww.dca.gov.uk/foi/reference/imprep/codemanrec.htm


-4-

Enforcement duties. and powers

· Regulation 16 - the EIR Code· Regulation 18 - Enforcement & appeal

provisions of the Act

The EIR Code can be viewed at:

http://ww . ico .gov. uk/upload/documerits/library/environmental info reg/detailed specialist guides/environmental information regulations code of practice.pdf '


-5-

Enforcement milestones· Jan 05

· Jul06

· Oct 06

· Feb 07

· May 07

· May 08

· Mar 09

FOIA came into force and waseffective retrospectivelyCommissioner created goodpractice & enforcement functionEnforcement Strategy published

First practice recommendationEnforcement officer appointedTwo further appointmentsPublication of Monitoring Strategy

t:'~ ...

FolA in the Police Sector: CommolJ mistakes and mishandling09 March 2009

-6-

Functions of the Enforcement Team

· Promotion of good practice

· Monitoring and providing guidance

· Informal resolution· Practice Recommeridations

· Enforcement Notices

· Reports to Parliament

Only a small percentage of the Enforcement Team's work is 'public facing' inas far as the majority of issues are resolved informally. Aside from informationwhich may be published as a result of an FOI request, PracticeRecommendations, Enforcement Notices and the 'Other Matters' sections ofDecision Notices are considered to be ,the only publicly available documentswhich detail action taken by the Team.;

1:

FolA in the Police Sector: Common mistakes and mishandling09 March 2Ò09

1-.7-

FOI Enforcement Strategy framework· Promoting good practice - open government,

maximise disclosure, benefits for citizens andpublic authorities

· Sources - complaints, wider monitoring,including proactive

· Selective approach - targeted, responsible andproportionate

· Structured intervention· Regulatory intervention· Publication of activities

Full details of the FOI Enforcement Strategy can be found at:

http://ww . ico. gov. u k/u pload/docu ments/libra rv/freedom of i nformation/deta iled specialist guides/enforcement strategy including moj update 30 05 07.pdf

We have also published a Practice Recommendation Policy Statement whichis available at:

http://ww . ¡co. gov. uk/upload/documehts/librarv/freedom of information/practical application/practice recommendations policy statement 10 aug 20065.QQ


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i-!,

FOI Enforcement Strategy triggers· Systemic, repeated or serious non-compliance with the

FOIA I EIR (especially delay) or the associated Codes ofPractice

· Evidence that obligations are being deliberately orpersistently ignored or not taken sufficiently seriously

· Examples or precedents need to be created· Issues need to be clarified or tested· As a means of grouping together several similar

complaints against the same public authority· Failure to adopt a publication"scheme

· Failure to make information available in accordance withthe authority's publication scheme

Example: The Department for Communities and Local Government (DCLG)repeatedly failed to conduct internal reviews within an appropriate timescale.We made them aware of our concerns and asked that steps be taken toimprove matters. However, the Department failed to make sufficient progressin a timely manner and a section 45 practice recommendation was issued asa result. This can be viewed at:

http://ww . ico. gov. uk/upload/documents/library/freedom of information/notices/dclg pr 03 11 08.pdf

\2,(


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Enforcement Activity· Cases considered by enforcement 654· Practice Recommendations s45 5

· Practice Recommendations s46 2

· Enforcement concerns raised in DNs 101· Enforcement "warning" letters 62

· Referred to TNA for advice 13· Report to Parliament warning letters 2

· Meetings with public authorities 19

*running total as calculated at the end of the third quarler of 2008/09.

Cases considered by enforcement: This includes referrals from complaintsofficers, issues picked up from published Decision Notices and complaintsconsidered as part of an audit. We also record problems we may pick up onfrom external sources such as the 'whatdotheknow' website,or media articles.

Example: In January of this year, the Enforcement Team were made awareof an article that suggested that a Police Force were failing to respond todozens of FOI requests within the statutory timescale. This prompted theteam to carry out an audit of section 50 (1) complaints made about theauthority. The audit lent credence to the articles' claim that the authority wasexperiencing difficulties in responding to requests in a timely manner, anduncovered a raft of other problems with the Force's approach. TheEnforcement Team is currently in dialogue with the authority in the hope thatthese issues can be resolved informally.

In terms of MPS, we audited 41 sectiQri' 50 (1) complaints, which equates toapproximately two thirds of the total rlumbêr of complaints received about theauthority since the Act's implementation.

Practice Recommendations s45: Recommendations have been issued tothe Department for Communities and Local Government (DCLG), the


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Department of Health (DoH), the National Offenders Management Service(NOMS), and to Liverpool and Nottingham City Councils.

The recommendations can be viewed at:http://ww.ico.gov.uk/what we cover/freedom of information/enforcement.a

spx

Practice Recommendation s46: Following a records managementassessment of the authority by The Nâlional Archives, the ICO has justserved a section 46 Practice RecomlTendåtion on the Department of Health.In 2007, the Commissioner's first section 46 recommendation was issued toNottingham City CounciL. TNA and the ICO continue to work with the Councilto improve its performance in this area.

Enforcement concerns raised in DNs: Predominately, this refers toexamples of non-conformity with any of the Codes of Practice or to moregeneral good practice issues arising from a case. Enforcement concerns tendto be detailed in the 'other matters' section of a Decision Notice.

Example: In January of this year, a Decision Notice was issued toNorthumbria Police. The 'other matters' section of this Notice described someof the Commissioner's concerns about the Force's refusal notices, specificallythat the public interest arguments were not clearly linked to the exemptionsclaimed. In addition the Commissioner was concerned that the Force hadstated that the fact that multiple exemptions had been applied constituted avalid public interest argument in favour of the maintenance of the exemptionsclaimed.

f. ~

The Commissioner noted that this pròblemi!pppeared to be replicated inrefusals issued by other Police Forces. The notice can be viewed at:http://ww . ico .gov. uk/upload/documents/decisionnotices/2009/fs 50123912. Pdf

Enforcement 'warning' letters: These are issued in cases where theEnforcement Team has concerns about an authority's compliance with the Actor conformity with the Codes of Practice. A 'warning' letter will typically set outour concerns (supported by evidence), and advise the authority of theenforcement powers at our disposaL. In most cases we will seek to informallyresolve the issues arising by asking the authority to agree to a period of activemonitoring. Typically, this consists of an authority providing regular updateson what we consider to be key indicators of performance such as compliancewith section 10 (1), or the time taken to conduct internal reviews. We may alsoask for copies of FOI policies and procedures held by the authority, andprovide advice on how these can be improved. As demonstrated by the ratioof 'warning letters' issued to the number of practice recommendations served,the overwhelming majority of cases are resolved informally.


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Referred to TNA for advice: If we have concerns about whether anauthority's records management is in accordance with the section 46 Code,we may refer them to The National Archives in order that they can takeadvantage of the specialist advice they provide. In serious cases this mayresult in an assessment being undertaken by TNA and/or a PracticeRecommendation by the Commissioner.

Report to Parliament warning letters: Section 49 of the Act compels theCommissioner to lay an annual report on the exercise of his functions beforeeach House of Parliament. Should he wish, this report can include details ofthose authorities for whom he considers compliance with the Act or conformitywith the Codes to be a matter of concern. We regard this as a powerfulsanction which may result in adverse'publi.Gity for the authority concerned andit is, therefore, reserved for the most serious cases of poor practice. To date,the Commissioner has advised two authorities that they would be included insuch a report if their compliance / conformity did not improve.

Meetings with public authorities: Where appropriate, we will meet withauthorities to discuss the problems they arefacing and to provide advice onhow matters can be improved. We are increasingly being asked to attendsuch meetings and will continue to support this approach as far as resourcesallow.

FolA in the Police Sector: Com'mon mistakes and mishandling09 March 2CJ09

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, 'l:if7

MPS & the iea· 2007/08 - iea case officers notice that

complaints about the MPS are beginningto form a pattern of poor practice

· February 2008 - MPS are advised that theEnforcement Team have been madeaware of the issues arising

· May 2008 - the Enforcement Team carryout an audit of complaint,s concerning theMPS. ."


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MPS & ieaMain issues with MPS compliance / conformity identified as a resultof the audit are:

· section 10 (delays in responding)· section 17 (poor explanation of exemptions, poor public interest

arguments, use of blanket exemptions, application of additionalexemptions during course of ieo's investigation)

· section 45 (poor internal reviews, and delays)

. section 46 (records management -protective marking)

· relationship with ieo (delays in responding to letters andperceived reluctance to provide exempt information)

Examples:

Section 10

In case FS50106800 2007020001775), the complainantsubmitted a series of new requests alongside his request for internal review.In the Decision Notice accompanying this complaint, the Commissioner foundthat by failing to respond to these additional requests, MPS had breachedsections 1(1)(a) and (b) of the Act and section 10(1).

The Decision Notice is available at:

http://ww. ico .gov. uk/upload/documents/decisionnotices/2008/fs 50106800. Pdf

Section 17.,:~~~,

In case FS50170294contained the following text:

2007060003631), the refusal notice

'I previously prepared the following generic passages, focussing on the issuesyou raise, that appear to be the catalyst for this request. I could explain thesefurther if necessary but you should presume that Sections 24,30,31,38,40,44wil inevitably apply to the 'intellgence source' issues you raise. OtherSections could also apply subject to the actual intellgence product that therequest refers to'.


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We considered this to be far too generic, and lacking an adequate explanationof the relevance and applicability of each exemption.

We were also concerned that this and similar cases, in which MPS reliedupon inadequate explanations as to why exemptions applied, or containedonly generic arguments to support eXßmptiçms, may leave the authority opento the suggestion that they are being appi¡êd in a 'blanket' fashion.

In case FS50129227 (2007010002228,_ the refusal notice issuedrelied on section 30 (investigations and proceedings conducted by publicauthorities), section 38 (health and safety) and section 44 (prohibitions ondisclosure).

During the course of the Commissioner's investigations, MPS sought to relyon various additional exemptions including section 23 (information relating tosecurity matters), section 24 (national security), section 31 (law enforcement),and section 40 (personal data).

Whilst the introduction of an exemption at a later stage does not disentitle anauthority from relying upon it, it is likely that we would find an authority inbreach of section 17 if it is not contained in the original refusal or rectified onreview.

Section 45 - internal reviews

The Commissioner has issued guidance in\which his recommendations forinternal review timescales are set out:

http://ww . ¡co. gov. uk/upload/documents/library/freedom of information/detailed specialist guides/foi good practice guidance 5.pdf

In brief, we expect all reviews to be completed in 20 working days. Inexceptional circumstances it may be appropriate to take longer, but in no caseshould the review take more than 40 working days.

We had concerns as the text contained in refusals sent out by MPS (forexample in the and__ cases FS50153447,2006110010906 and FS50188116, 200711007281 respectively) stated thefollowing:

'in all possible circumstances the MPS wil aim to respond to your complaintwithin three months'

We were also concerned that MPS may not be communicating the outcome ofinternal reviews in a way which demonstrates that they took a fresh look atmatters in accordance with paragraph 39:Öt the Code.


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Section 46 - records management

In case FS50129227 (_ 2006020001612), the complainant noted anumber of apparent contradictions in the protective markings recorded on oneof the documents he had been provided with as a result of his request. Healleged that this was evidence that the public authority had deliberatelywithheld information which should have been disclosed to him upon request.In addition to the ongoing ICO section ,50 (~) investigation, a complaint wasmade to the IPCC. ....

The section 46 Code (part 8, paragraph 8.6) states that:

'the record-keeping system, whether paper or electronic, should include a setof rules for referencing, titlng, indexing and if appropriate, security marking ofrecords. These should be easily understood and should enable the efficientretrieval of information'

This case demonstrates how important accuracy in this respect is and weunderstand that the approach has since been reviewed and updated toensure that information is now correctively marked.

Relationship with ICO

Initially we were concerned that MPS were reluctant to provide the informationwe needed to conduct our investigations. It was explained that this was due tonumerous concerns about the movelTent of sensitive data outside of MPS.

, ',: ',~

We are pleased to note that this, and Jmany::of the other issues identified inthis section appear to have been resolved.

, ~-

. :,;l,:,:


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Engagement with MPS· 04 June 08 - Enforcement Team write to MPS to

outline concerns

· 10 July 08 - follQMliAg some interim telephonecontact, MPS respond. ICO encouraged by positivetone and willingness to aqdress issues highlighted

· 12 August 08 - EnforcefnenfTeam agree to meetwith MPS representatives

· 06 Nov 08 - Meeting held - considered positive andproductive by both parties.

· May 09 - Follow up meeting scheduled

FolA in the Police Sector: Commoi¡ mistakes and mishandling09 March 2009

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i;J

Questions

· What does poor compliance ultimatelylead to?

- Formal enforcement action- Damage to reputation- Loss of public trust- Additional requests? (Rother Bother)

Example: In March 2008, a request for details of Common Purpose trainingcourses was made to Rother District Council via the 'whatdotheyknow'website. The Council responded by advising that they would not reply until therequester supplied a postal address (citing section 8 (1) (b)). The requesterrefused to do so, on the grounds that an email address is consideredsufficient for the purposes of the Act.

The Council continued to insist that a postal address was necessary, andposted a rather unfortunate comment describing the 'whatdotheyknow' site asamateurish.

The BBC Open Secrets blog picked up on the Council's comments, and ranan article about the value in such exchanges being on public display.

',' .¡ 1:l'

The situation began to attract public attention, and a series of additionalrequests were made by individuals challenging the Council's interpretation ofsection 8 (1) (b). The Council's actions had also attracted the attention of theCommissioner, who wrote to the authority to advise that an email address wassufficient for the purposes of section 8 (1) (b) and to provide more generaladvice about various aspects of the authority's approach.

The situation was eventually resolved, but not before it had generated severalrelated requests and the attention of numerous other organisations, includingthe Tax Payers Alliance and University College London's Constitution Unit.


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We consider this to be a good example of how things can snowball if requestsare not handled appropriately, and how an incorrect perception that anauthority has something to hide can come about.

Details of the request, and the BBC, UCL and Tax Payers Alliance articlescan be found at:

http://ww.whatdotheyknow.com/body/rother district council

http://ww.bbc.co.uk/blogs/opensecrets/2008/04/rotherbother.html

http://ww.taxpayersalliance.com/campaign/2008/07/councils-findin.htm I

http://uel.ac.uk/constitution-unitlfoidp/monthly-updates/ju ly-2008. htm I

Liverpool City Council were issued with a section 45 PracticeRecommendation in May 2007 but have failed to respond as positively. Theycontinue to receive bad publicity in relation to request handling.

In contrast, since the issue of a section 45 Practice Recommendation toNottingham City Council in February 2007, the authority has doubled itsresources devoted to FOI & DP, established a new information managementstructure, introduced new policies, procedures & IT systems and ensuredgovernance at director leveL. It is now used by the Commissioner as a modelfor request handling in the local government sector.


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Questions

How important is the role of the FOIApractitioner in securing and improvingorganisational compliance?

· Critical BUT cannot be done alone. Supportof colleagues is needed

· Recognition AND buy-in of senior managersand executives is crucial

Example: In the practice recommendation issued to the Department ofHealth, the Commissioner recognised that pockets of FOI expertise within theauthority existed, but felt that as an organisation, this expertise was notafforded adequate support.

The practice recommendation can be accessed here:

http://ww. ico .gov. uklupload/documents/library/freedom of information/notices/1221758 4 doh%20v4.pdf

On occasion, the Enforcement Team receives correspondence from staffmembers of authorities who want action to be taken against the organisationthey work for, because they feel the Commissioner's intervention would helpgain better senior visibility and support.

In terms of our experience with MPS,; ~e håve been encouraged by the levelsof resource and dedicated support toF'OI demonstrated so far. In particular,are pleased to see that compliance with seCtion 10 is a key performanceindicator for the authority.

Our concern at present is ensuring the continuity of standards. In an authoritythe size of MPS, the risks of miscommunication increase and key messagesmay be lost in transit. With numerous decentralised sites, MPS needs toensure that request handling, and in particular refusals, are of a consistentlyhigh standard across the board.


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Questions

· What does the ICO consider to be best practicewhen applying the public interest test?- Clarity of arguments to support exemptions- Relevance of supporting statements- Clear consideration of issues inherent to the

information requested

- Clarity over the information to which theexemption applies

- Adherence to recommended timescales

Key things to consider when applying th.e public interest test (PIT):

- Whilst the PIT can be distinct from the description of the exemption

claimed, care should be taken that it is relevant to that exemption. Forexample a public interest test under section 43 (1) should be inherentto issues of commercial interest in the context of the informationrequested. We often see public interest test's which bear no relation tothe exemption claimed.

Similarly, the PIT should focus on the issues inherent to that particularrequest, and care should be taken to avoid over-reliance on generic orstock PIT arguments. Whilst it is inevitable that some public interestarguments will be used time and again, the Commissioner expects tosee evidence of how they relate to the specific information requested.Emphasis should be on bespoke refusals for each request, taking intoconsideration the situation as it was at that time

- Clear, coherent arguments should be used to set out support for use ofthe exemption(s).

"l i 'r/l

- Weigh up the public interest argurnèhts for and against disclosureseparately, using bullet point format if helpfuL. Then separate out theconclusion on where the overall balance of the PIT lies


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Standard text or templates can be helpful, but should be limited toquotations from the Act or regularly used text such as procedures andappeal rights.

- Authorities should clearly indicate which part of the requested

information the exemption applies to. Where, due to volume, this is notpractical, authorities should take steps to at least indicate the extent towhich the exemption applies ançJ ensure that any non-exemptinformation is considered for release. It should be noted that at thesection 50 (1) stage, the CommissiOner may ask an authority to identifywhich parts of the information are èxempt and doing this from theoutset may save time in the long run.

When quoting exemptions all the relevant sub sections should be cited,particularly when relying on multiple limb exemptions such as section31 (law enforcement)

- Authorities should ensure that they adhere to the timescales for the PIT

recommended by the Commissioner in his guidance:

http://ww. ico. gov. uk/upload/documents/library/freedom of information/detailed specialist guides/foi good practice guidance 4.pdf

Whilst the Commissioner recognises that these are different from thatadvised in the latest version (5) of the ACPO FOI guidance manual, hewould remind all forces that his decisions and actions will be determinedby reference to his own guidance.

In March 2008, the Commissioner issüedaPractice Recommendation toNOMS (an executive agency of the MoJ) fó'r repeatedly and systematicallyextending the PIT when responding to FOI requests. A copy can be accessedat:

http://ww. ico. gov. uk/upload/documents/library/freedom of information/notices/noms s45 pr final 4 mar 08.pdf

Benefits of good refusal notices:

Getting it right at the refusal stage may deter requests for an internalreview

If a complaint to the Commissioner is made, a significant amount oftime and effort wil be spared if the balance of public interest is wellreasoned in the original refusaL. It may save an authority from having togo over old ground, and in the event of a delay between the complaintand the Commissioner's investigation, or a change of staff within theMPS, it will make it easier to understand why a particular approach wastaken at that time !..


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i'.,:",.:.,

PIT: The good.... CONSIDERATIONS IN FAVOUR OF DISCLOSURE:

. Public Debate (see attached notes for detail)

. Accountabilty for Public Funds (see attached notes for detail)

. CONSIDERATIONS AGAINST DISCLOSURE:

. Investigations (see attached notes for detail); .

. Third Party Interests (see attached notes for detail)

. BALANCING TEST:

· (see attached notes for detail)

This example is taken from a central government department. Whilst it's notperfect, it has a good, easily understandable structure and has made anattempt to explain how their conclusions were formed.

The text in full reads:

CONSIDERATIONS IN FAVOUR OF DISCLOSURE:

Public Debate

Release of this information would contribute to the quality and accuracy ofpublic debate on the subject of fraud wheretaxpayers are the ultimate victims,and would demonstrate that such activities are subject to rigorousinvestigation.

Accountabilty for Public Funds

Where public funds are being spent, there is a valid public interest inaccountability and justification.

CONSIDERATIONS AGAINST DISCLOSURE:

Investigations

Information relating to an investigation will rarely be disclosed under FOIA andonly where there is a strong public interest consideration in favour of


-23-,n

disclosure. Whilst such information may be released in order to serve a "corepolicing purpose" e.g. to prevent or detectcrime or to protect life or property, itwill only be disclosed if there are strong public interest considerations infavour of disclosure. The further the considerations in favour of disclosure arefrom a core policing purpose, the lighter those considerations will be. In thiscase, it cannot be demonstrated that releasing the information would serveany particular core policing purpose.

Third Part Interests

Disclosure of the details of the contract between fpublic authority) and (nameof contractor) would be prejudicial to the commercial interests of (name ofcontractor). FOIA Exemption Section 43 applies.

BALANCING TEST:..

When balancing the public interest we have to consider whether theinformation is suitable for release into the public domain. Arguments need tobe weighed against each other. Whilst there is a valid argument in favour ofpublic debate and accountability for public funds, these considerations do notconstitute a core policing purpose. Accordingly, the argument in favour ofnon-release is more compelling. It should be noted that any informationreleased under FOIA, where exemptions apply, will only be sanctioned whenthere is a tangible community benefit. On balance, the information should beprotected from disclosure and Exemption Sections 30 and 43 applied.


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The bad...

· 'The public interest to disclose such informationat this time would be likely to prejudice thecommercial interests of (redacted) Counciland/or others. Due to the need to protect(redacted) Council and/or others commercialinterests this information is at this time exemptfrom disclosure. Please treat this letter as anotice under Section 17 of the Act'.

This example was taken from a local authority's Refusal Notice.

The shortcomings:

- The authority has not demonstrated how its commercial interests, orthose of the third party, would be prejudiced

- The second sentence effectively repeats the first and adds nothing- It is not clear whether the authority has considered the public interest in

the context of the actual information requested- There is no evidence to suggest that the authority has genuinely

balanced competing interests when making its decision


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... ... .and the inexcysable

"We have considered the public interest testin both these exemptions and have decidedthat it is in the public interest to withhold theinformation (rather?) than to disclose it."

This example was taken from a local authority's refusal notice.,.

The shortcomings:

- The authority has not evidenced any consideration of the public interestwhatsoever and appears to have merely stated its conclusion in thebriefest possible terms, with no reference to the balancing exercise itshould have carried out, or to the actual information requested

J'I.


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Questions

· When does the application of exemptionsbecome 'blanket' or overused?- When the recognition thafpact of the requested

information is exempt leads td the assumption thatthe rest must also be withheld

- When an exemption is applied on a general principle,instead of considering the actual content of theinformation requested

Example: In the practice recommendation issued to the Department ofHealth, the Commissioner noted that the Department had repeatedly appliedblanket exemptions to requested information with the effect of withholdingentire documents from release. This suggests that rather than consideringrequests on their own merits, exemptions hÇ3d been applied on a generalprinciple. The Commissioner expressed, his concern that the application ofexemptions in this way may have theleffect of suppressing non-exemptinformation from release.

The recommendation can be viewed in full at:

http://ww . ico.gov. uk/upload/documentsllbrary/freedom of information/notices/1221758 4 doh%20v4.pdf

, i ,.


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QuestionsWhat are the common errors that the ieo takeissue with in relation to Police Forces:

· Application of sections 30 and 31 in tandem· Inappropriate application of section 38 (1) (a) & (b)· Poorly constructed argume,hts in respect of section

40 and its relationship to the OPA principles· Failure to issue a proper notice when extending the

PIT (s17 (2) (b))

· Over-reliance on generic reasons for refusal

Reference points & Examples:

Section 30 - Investigations and proceedings conducted by publicauthorities

http://ww. ico .gov. uk/upload/documentsllibrary/freedom of information/detailed specialist guides/section 30 inveStigations 13 oct 06.pdf

;:~t

Section 31 - Law Enforcement

http://ww. ico .gov. uklupload/documents/library/freedom of information/detailed specialist guides/section 31 law enforcement 13 oct 06 v2.pdf

Sections 30 and 31 cannot be applied in tandem. Section 31 (and itssubsections) can only be applied if section 30 is not applicable to theinformation you wish to exempt. Historically, we have seen a number ofrefusals issued from MPS (and other police forces) which invoke bothsections in respect of the same information, although we have reassurancesthat this is no longer happening.

If the duty to confirm or deny is removed the approach may differ and we aredeveloping guidance in this respect.

FolA in the Police Sector: Commor)fmistakes and mishandling09 March 2009

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ill,:

Section 38 - Health and Safety

http://ww. ico.gov. uk/upload/documents/library/freedom of information/detailed specialist guides/awareness guidance 19 - health and safety.pdf

A request was made to a Police Force in connection with the traveldestinations, and associated expenses of a senior member of staff and hisson. The Force sought to exempt this information on the grounds that it wasthe personal data of that staff member and his son. On review, the Forcesought to apply section 38 on the grounds that the provision of information onthe travel arrangements of staff could put them at risk.

In the Commissioner's view the publication of precise destinations or ofinformation which allows an individual to piece together patterns of repeatedor probable travel could expose a staff member to unnecessary harm, but toinvoke the exemption the authority in question must be able to demonstratethat endangerment is more than a rernote possibility.

In the majority of cases the provision of inf6rmation on one off or welldocumented visits should be considered for publication. For example, if aChief Constable has undertaken a one-off trip to visit a local communityproject, or chaired an international conference abroad this may be suitable forrelease (unless any other relevant considerations apply).

In circumstances in which a Force wishes to withhold the precise destinationsor similar, they should still consider whether it is appropriate to provide theexpenses associated with them. It may also be possible to provide the volumeor frequency of travel, without needing to release the actual destination orexposing the staff member to possible harm. For example, 'Deputy ChiefConstable X made 15 trips for work purposes in January 2009. Four of thetrips were made by train and the remainder by car. The combined cost of thetrips was £850'.

Consideration should be given as to whether high level details of travelexpenses should be included in the Force's publication scheme:

.'1

http://ww.ico.gov.uk/Home/what we. cover/freedom of information/publication schemes/definition document police. forces.aspx

As with all requests, the Commissioner wil not accept a blanket approach forall cases and each request must be dealt with on its own merits.

See also the ica Decision Notice served on PSNI available at:

http://ww . ico .gov. uk/upload/documents/decision notices/2006/decision notice fs50076785 v3.pdf


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Section 40 - Personal information

http://ww. ico. gov. uk/upload/documents/librarv/freedom of information/detailed specialist guides/personal information.pdf

Dave Evans will be covering our expected approach to section 40, but furtherinformation is available on the above link.

Section 17 (2) (b)

http://ww. ico .gov. uk/upload/documents/libra rv/freedom of information/detailed specialist guides/foi good practice guidance 1.pdf

If more time is needed to consider the balance of public interest (beyond the20 working days stipulated in section 10 (1), an authority should issue a noticeadvising which exemptions it is considering the public interest test for, andgiving an estimated date of when the decision will be reached. Under section17 (2) (b), this is considered a 'refusal notice', although the authority has notyet decided whether to turn down theìreque. st.

¡.,

Consideration of the public interest test should be carried out in accordancewith the Commissioner's recommended timescales:

http://ww. ico .gov. u k/upload/documents/librarv/freedom of information/practical application/foi good practice guidance 4.pdf

If the Commissioner becomes aware of cases in which the consideration ofthe public interest repeatedly exceeds the recommended timescales, we mayconsider issuing a practice recommendation, such as that issued to NOMS inMarch 2008:

http://ww. ico. gov. uk/upload/documents/librarv/freedom of information/notices/noms s45 pr final 4 mar 08.pdf

Prejudice and Adversely Affect

http://ww. ico. gov. uk/upload/documénts/librarv/freedom of information/detailed specialist guides/awareness guidancè prejudice adversely affect version 2.03 14 03 08.pdf

In addition, the complaints the ICO receives about the police sector andother public authorities often contain:

· Poorly constructed refusal notices· Section 10 (1) delays· Internal review delays


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Questions~-i.~t..

What about the ACPO referral unit & guidance?

A Decision Notice issued to Northumbria Police on20 January 2009 highlighted:

· Use of a generalised harm test· Use of multiple exemptions as a PIT argument· Confusion over responsibility for communication with the ica· ACPO contributing to the cause of the delay

Questions

What about the ACPO referral unit & guidance?

\\1

The ieo considers the guidance good in manyrespects. Some inconsistencies lead to issues:

· Time limits - "acceptable" to extend· PIT extensions - allows for up to 3 x 20 days· Internal review - 2 calendar months· Delays "acceptable" for ACPO consultation & response· Clarity of harm/exemption/PIT explanations

The ICO and ACPO wil be meeting shortly to consider solutions to the currentissues and how best to improve and encourage compliance within policeforces.


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Review & Way Forward::.. ~;)

· MPS engagement has been positive,productive and timely

· Case Officers have noted an improvementin quality and timeliness of responses

· Since initial engagement, EnforcementTeam have received no referralsconcerning MPS

· Complaints will continue to be monitored


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If you have any questions after the event, or require further copies of theseslides please contact Jo Stones at joanne.stones(Çico.gsi.gov.uk

~. .FolA in the Police Sector: COlTmon mistakes and mishandling

09 March ZØ,09

-33-"

Technology

Metropolitan Police 2