Meeting documents
Cabinet
Wednesday, 1st December, 2004
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Bath & North East Somerset Council |
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MEETING: |
Council Executive |
PAPER |
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DATE: |
1st December 2004 |
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TITLE: |
Freedom of Information Act |
EXECUTIVE FORWARD PLAN REF: |
E693 |
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WARD: |
List of Wards or "All" |
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AN OPEN PUBLIC ITEM |
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List of attachments to this report: Appendix 1 - Freedom of Information Policy |
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1 THE ISSUE
1.1 The Freedom of Information Act 2000 is due to come into full force on the 1st of January 2005. This report details the obligations of this act on this council and asks for approval of a Freedom of Information Policy and Publication Scheme.
2 RECOMMENDATION
The Council Executive is asked to agree that:
2.1 The Council's Freedom of Information Policy detailed at Appendix 1 be approved
3 FINANCIAL IMPLICATIONS
3.1 Implementation of the Act has incurred costs both through preparation - via a Council Project - and consideration of ongoing officer support both to the Council and Public. At present these arrangements have received temporary funding and there is no long-term funding or budget for this area.
3.2 Ongoing support is required to assist services, the public and ensure compliance and therefore a formal bid through the Councils Budgetary and Financial Planning process will be made for permanent funding.
4 THE REPORT
4.1 Background
4.2 The Freedom of Information Act came into force in 2000, however full implementation was delayed until 1st January 2005 to enable all the affected public bodies to prepare. Parts of the Act are already in force and these include the requirements for each public body to have a `Publication Scheme'.
4.3 A publication scheme is a document which details how you can make information available by detailing what you hold and where you can access it. This is a dynamic document being updated on a continual basis as information being made available changes. This will be made available both electronically and in hard copy and a draft version is on the Councils website.
4.4 Rights Under the Act
4.5 The Act gives a general right of access to information held by public bodies which includes local and central government, Schools, NHS and the Police. Requests must be in writing and include the name and address of the applicant. These requests must then be answered within 20 working days.
4.6 Requests apply to all the information held by the Council at the time the request is made and the Act lays out two codes of practice which are applicable. The first is Section 45 on the Discharge of Duties, which details that you have a duty to assist those making requests and help them find information. The second is Section 46 on Records Management which details best practice on how to store, hold and retrieve information.
4.7 Requests are not chargeable - except for disbursements - as long as the cost of retrieving the information does not exceed £450. Above this limit requests are deemed `disproportionate' and will only be dealt with on an exception basis and will be subject to a charge.
4.8 There is also a list of exemptions which are either absolute or general. Those that are absolute are automatically exempt and no further debate is required. As an example these include: National Security; Information available by other means, i.e. Publication Scheme; Court Proceedings; Information provided in confidence; Legal disclosures and Personal Data when making subject access requests.
4.9 General exemptions are not automatically exempt and a public interest test must be conducted on them to decide whether to release the information. As an example these include: Personal data requests on individuals other than your self; Commercially sensitive information; Information available at a future date; Investigations; Audit; Information prejudicial to the effective conduct of public affairs and Health and Safety.
4.10 Finally there is enforcement which is carried out by the Information Commissioner. This office is independent and supervises both the Data Protection and Freedom of Information legislation at a national level. Anyone can appeal to this office and they can issue official recommendations, notices or even fines.
4.11 Data Protection v Freedom of Information
4.12 There has been comment about the contradictions between the two acts and how they will work together in practice. Data Protection gives individuals a right of privacy to their own data whilst Freedom of Information gives a general right of access to information. As detailed above one of the exemptions of the Freedom of Information Act is personal data and so both acts can work together.
4.13 Council Implementation
4.14 Following the HBS transfer in August 2003 Data Protection responsibilities were transferred from IT to the Chief Internal Auditor on a temporary basis. This was so that the future of Data Protection could be considered alongside that of Freedom of Information and related work on Information Security which the Internal Audit section had been involved.
4.15 A report was prepared for Directors Group in January 2004 to highlight all these issues and present options on how to proceed in terms of meeting the obligations of the Act and bringing the Council into compliance.
4.16 Short-term funding was allocated and HBS approached to provide a project manager to run the project under the control of the Chief Internal Auditor. Finally in May a suitable project manager was identified and the project commenced. The project then went through the standard Business Improvement Service stages for approval and a project initiation document agreed.
4.17 The key stages identified were as follows -
a) High-level analysis of processes and organisation structures
b) Assessment of existing practices, procedures and policies
c) Development of new polices and procedures
d) Training and Awareness programme
e) Testing of new systems and processes
4.17 Update reports have been prepared since May to Resources Overview & Scrutiny, Directors Group and the Projects Programme Board so that progress can be monitored.
4.18 The project is now in its final stages of testing and completion of detailed guidance to support the new policies and procedures. This development will continue into a wider review of the management of records and information so that the maximum benefit is derived from the implementation of the Act both for the Public and Council Services.
4.19 Approval of the Freedom of Information Policy is therefore important to demonstrate the Council's commitment to openness and accountability.
5 RISK MANAGEMENT
A risk assessment related to the issue and recommendations has been undertaken, in compliance with the Council's decision making risk management guidance.
6 RATIONALE
6.1 The Council is recommended to obtain Executive support for a Council Policy on Freedom of Information. The project to put the council into compliance with the Act followed the Business Improvement Service methodology and applied the guidance laid down by the Department of Constitutional Affairs.
7 OTHER OPTIONS CONSIDERED
7.1 Other options were considered at the commencement of the project. These were not pursued by Directors Group due to the penalties and risks involved in non-compliance and the benefits of compliance being consistent with the Council's vision and values.
8 CONSULTATION
8.1 Consultation has taken place with Directors Group and Service Management Teams.
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Contact person |
Jean Hinks 01225 477300 Jeff Wring 01225 477323 |
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Background papers |
Report to Resources Overview & Scrutiny Panel - 2nd September 2004 |
APPENDIX 1 - B&NES Freedom of Information Policy
Introduction
Bath & North East Somerset Council issue this policy in response to the Freedom of Information Act 2000. This policy is also aligned to other legislation and guidance relating to access to information, such as the Data Protection Act and the modernising government agenda.
The Council welcomes the introduction of the Act and supports the objectives of increasing openness, accountability and transparency in the public sector.
In addition to this Policy the Council will issue detailed procedures to assist staff with meeting the obligations of the Freedom of Information Act.
Obligations of the Act
The Act confers a general right of access to information held by public bodies. Requests for information received in writing must be responded to within 20 working days.
The applicant has a right to have the information they request, subject to certain exemptions. These exemptions are detailed at Appendix A along with details of the `Public Interest Test' which will apply to some exemptions.
The Act also requires that each public authority adopt and maintain a Publication Scheme which details what information is currently available.
This policy does not apply to Primary, Secondary and Special Schools who are separate public bodies in their own right and are statutorily obliged to make their own arrangements.
Principles that the Council will apply
The Council will apply the following basic principles -
The Council will:
71 Offer advice and assistance to applicants seeking information
71 Will respond promptly to all requests, acknowledging receipt of the request and inform the applicant of the anticipated time to release the information
71 Where exemptions are applicable the Council will inform the applicant of these and indicate as soon as possible any impact this has on the timetable for responding to the request
71 Inform applicants whose requests are deemed vexatious or repeated that their request will be exempted
71 Assist where possible an applicant who is unable to frame their request in writing
71 Inform an applicant of any charges likely to be levied
71 Inform an applicant of information what can be provided for free (where the specifics of their request incurs a charge)
71 Apply the principles of good records management as laid out in the Corporate Records Management Policy
Responsibility
All staff have a duty to comply with the Freedom of Information Act. The council have issued a procedural document to complement this policy; this sets out step-by-step how a request for information should be dealt with. In addition training has been provided and will be available on an ongoing basis. It is however the responsibility of the person who receives the request to ensure that it is responded to according to the Act. Where assistance is needed in this regard there will be assistance, advice and support available at service level and corporately.
The Resources Director via the Audit and Risk Management Service are responsible for this Policy, associated procedures and the provision of corporate advice and support.
Publication Scheme
Under the Act each public authority must adopt and maintain a publication scheme. This is a proactive method of making information available to the public. The scheme details the information the Council will routinely make available. It divides the information available in different classes and states what information is included in each class, along with details of its format, the charges applicable and how to request the information.
The classes in the Bath & North East Somerset Council Publication Scheme are:
1. Council Performance
2. Council Strategy & Corporate Planning
3. Council Tax and Benefits
4. Council Finances
5. Community Partnerships
6. Culture, Heritage & Libraries
7. Council Democracy
8. Environmental & Consumer
9. Economic Development
10. Emergencies
11. Social & Housing
12. Education & Life Long Learning
13. Leisure & Amenities
14. Human Resources
15. Planning
16. Highways, Transport & Parking
17. Waste
18. News, Public Relations, Press Releases
19. Major Projects
20. A-Z on bathnes.gov.uk
Charging
Where the cost of retrieving individual requests for information is less than £450 the request will be free. Requests which cost more than £450 are exempt as they are `disproportionate'. However in exceptional circumstances and at the Councils discretion requests may be satisfied. These will be dealt with on a case-by-case basis and any such request may be liable to a charge.
The release of information can however be chargeable if -
a) It is governed by other legislation which permits charging. In all such instances services will continue to levy those charges.
b) It is contained within the Councils Publication Scheme
All disbursements, i.e. photocopying, printing etc can be charged for in every instance.
Vexatious or Repeated Requests
The Council may refuse to comply with a request on the basis that it is vexatious, i.e. the request not the requestor is vexatious. A request will not be vexatious just because it may be difficult to identify a reason for the applicant requesting it.
A repeated request may also be refused if the Council has previously complied with an identical or substantially similar request from the same applicant and a reasonable time has not passed between requests.
Data Protection
A request may refer solely to, or include among other things, a request for personal information. Where the information requested is personal data, as defined by the Data Protection Act 1998, this will be exempt under the FOIA.
In such instances the request should be forwarded to the Councils Corporate Information Officer for Data Protection where it will be dealt with appropriately according to the provisions of the Data Protection Act 1998.
Interdependencies
Application of the Act depends on and relates to other areas.
Data Protection Act
Environmental Information Regulations
Records Management Policy
Customer service policy
Complaints policy
Access policy
APPENDICES
Appendix 1
Absolute Exemptions
71 Section 21 - Information accessible to applicants by other means
71 Section 23 - Information dealing with security matters either supplied by, or relating to bodies dealing with such matters
71 Section 32 - Court records
71 Section 34 - Parliamentary privilege
71 Section 36 - Prejudice to effective conduct of public affairs (relates only to information held by Parliament)
71 Section 40 - Personal Information (where the applicant is the data subject)
71 Section 41 - Information provided in confidence
71 Section 44 - Prohibitions on disclosure by any enactment, incompatibility with any Community obligation or contempt of court
Appendix 2
Non-absolute exemptions - subject to Public Interest Test
71 Section 22 - Information intended for future publication
71 Section 24 - National Security; (notwithstanding the provisions of Section 23)
71 Section 26 - Defence
71 Section 27 - International Relations
71 Section 28 - Relations within the UK
71 Section 29 - The Economy
71 Section 30 - Investigations and proceedings conducted by public authorities
71 Section 31 - Law enforcement
71 Section 33 - Audit functions
71 Section 35 - Formulation of government policy
71 Section 36 - Prejudice to the effective conduct of public affairs (excluding information held by Parliament)
71 Section 37 - Communications with the Queen
71 Section 38 - Health and safety
71 Section 39 - Environmental information
71 Section 40 - Personal information relating to a third party
71 Section 42 - Legal professional privilege
71 Section 43 - Commercial interests
Appendix 3
Application of Public Interest Test
The Public Interest Test will be applied to requests where a non-absolute exemption applies. The test will take into account a number of detailed factors contained within each exemption of the Act. These weigh up many issues for instance whether the release of information will seriously impede the delivery of Council Services or its relationship with any of its stakeholders.
However factors which may be applied to substantiate the release of information are:
71 Will the release of information aid further understanding of and participation in the public debate of issues of the day?
71 Will the release of information promote accountability and transparency by public authorities for decisions taken by them?
71 Will the release of information allow individuals and companies to understand decisions made by public authorities affecting their lives?
71 Will the release of information bring to light information affecting public health and safety?
Appendix 4
Enforcement
Nationally enforcement of the Act is carried out by the Information Commissioner who oversees both this and the Data Protection Act. Within the Council the Audit & Risk Management service will monitor compliance with the Act through the Corporate Information Officer for Freedom of Information.
Any individual can appeal directly to the Council through its Complaints procedure or to the Information Commissioner if they are not satisfied with the Councils decision. If the Information Commissioner upholds this appeal then he can take one of the following actions :
Practice recommendations (section 48)
If the authority does not appear to the Commissioner to be conforming to either Code of Practice he may issue a written 93practice recommendation94.
Decision Notice (section 50)
If, in response to a complaint, the Information Commissioner decides that the authority has failed to communicate information, he may issue decision notice. The decision notice will specify the steps to be taken in order to comply.
Information Notice (section 51)
The Information Commissioner may serve notice on an authority requiring it to furnish specified information.
Enforcement Notice (section 52)
If the Information Commissioner is satisfied that the authority has failed to comply with any of the requirements of Part I of the Act, he may serve an enforcement notice requiring the authority to take particular steps within a specified time frame to comply.
Failure to comply with a Notice (section 54)
If a public authority fails to comply with a notice the Information Commissioner may certify in writing to either the High Court that the public authority has failed to comply. The High Court may enquire into the matter and, after hearing witness or statement in defence, may deal with the authority as if it had committed a contempt of court.