UK Freedom of Information E-news - February 2010

26/02/2010
Tags:
  1. 30-year rule changes to 20 years
  2. Time limit for prosecution of offences for deliberate destruction of requested records 6 months, or not?
  3. Tribunal: time taken redacting cannot be included in cost estimates
  4. Information Tribunal now known as First-tier Tribunal
  5. FOI veto not justified, Information Commissioner says

1. 30-year rule changes to 20 years

The government has announced the details of a reduction of the ‘30-year rule’, which governs the point at which records of lasting historical value are normally transferred to The National Archives. The time has been reduced to 20 years. The Public Records Act and the Freedom of Information Act will be amended accordingly. 
There are exemptions for commercially sensitive information, information the disclosure of which could prejudice relations within the United Kingdom, and information the disclosure of which would otherwise prejudice the devolved governance and internal relations of the United Kingdom.

The government has decided to drop the proposed cabinet papers exemption. The Campaign for Freedom of Information welcomes this announcement.

The Campaign’s director Maurice Frankel said:

“We are extremely pleased that the prime minister has decided to drop the proposed cabinet exemption. That would have ruled out the release of any paper circulated to cabinet or a cabinet committee, even if there would be no harm to decision-making or collective responsibility. Requests for such documents will now continue to be considered on their merits. Cabinet minutes may be unlikely to emerge, given the way the ministerial veto has been used so far, though that too is not entirely out of the question, particularly for older or less contentious material or where the public interest in disclosure is overwhelming. And the 20 year rule will mean old records are more likely to emerge while the events they refer to are still remembered.”

The new 20 year rule will be phased in over 10 years. However, the government will create a new  absolute exemption to the FOI Act for the Royal Family.

The government’s announcement from February 2010 is at: www.justice.gov.uk/about/docs/government-response-30-year-rule-review.pdf

2. Time limit for prosecution of offences for deliberate destruction of requested records 6 months, or not?

The Information Commissioner's Office (ICO) has said that although the deliberate destruction of requested records is an offence, no prosecution is possible if the time limit of six months has been exceeded. This was the case with the University of East Anglia, which destroyed records relating to climate change.

Last year, the Campaign for the Freedom of Information promoted an amendment to section 77 of the FOI Act to extend this 6 month limit, but the government rejected it. The Campaign now says it has received comments from interested parties who suggest that a prosecution could be brought under section 77 of the FOI Act even if it was more than 6 months after the offence had been committed.

See the Campaign’s report, published on 29 January and updated on 2 February at http://www.cfoi.org.uk/fois77offence290110.html

3. Tribunal: time taken redacting cannot be included in cost estimates

The Information Tribunal has ruled that no matter how long it takes an organisation to remove exempt material, it cannot be taken into account when estimating the costs of complying with a FOI request.

South Yorkshire Police had refused to fulfill a FOI request for information on illegal firearms and gun crime, stating that to read and redact information that is exempt under the FOIA would take so much time that complying with the request would exceed the appropriate limit set in Fees Regulations.  It explained that the document was 187 pages long and that it contained intelligence information that would be exempt under sections 31 and 38 of the FOIA, which would have to be redacted. Their estimate was that it would take about 15 hours to read the document in question, and the redactions would take at least twice that long. This work would take it over the limit of 18 hours at £25 per hour set out in the Fees Regulations (the limit being £450 in this case).

However, the ICO, and now the Tribunal, have decided that redacting information cannot count towards the cost limit. Appropriate grounds are determining whether information is held, locating and retrieving it, and extracting the information from a document.

The Tribunal said: ‘If it was intended to include any and all costs associated with complying with a request, there would have been no need to specify, as regulation 4(3) clearly does, what costs can be included - and by implication, what costs cannot be included.’

‘If it was intended that such tasks should be included within the scope of the Fees Regulation, we find it most unlikely that there would not be both guidance in the legislation as to how such an estimate should be made, as well as safeguards to ensure that it did not significantly undermine the access rights which are at the heart of the FOIA. It is also clear from the time limits in the Fees Regulations (18 hours and 24 hours depending on the public authority), that if it covered the time cost of redactions, in addition to the tasks listed in regulation 4(3), many, if not most, requests involving exemptions, particularly multiple exemptions, could be refused. This too, in our view, could not have been the legislative intent.’

The Tribunal Decision of 12 December 2009 can be seen at www.informationtribunal.gov.uk/DBFiles/Decision/i359/S_Yorkshire_Police_v_IC_(EA-2009-0029)_Decision_14-12-09_(w).pdf

4. Information Tribunal now known as First-tier Tribunal

As part of a Tribunals restructuring, the Information Tribunal was replaced on 18 January by a First–tier Tribunal (Information Rights). As before, the Tribunal hears appeals on DP, FOI and EIR cases. 

The Tribunal is now part of the General Regulatory Camber, which will also include the Gambling Appeals Tribunal; the Claims Management Tribunal; the Immigration Services Tribunal and the Family Health Services Appeal Authority.

A panel, composed of the Tribunal Judge and two other non-legal members, will meet at venues across the country. The first tier hearings can be appealed to an Upper Tribunal. Some cases which raise unusual issues or importance may be dealt with directly at the higher Tribunal.

Read about the Tribunal rules on www.tribunals.gov.uk/Tribunals/Rules/rules.htm

The website for the Tribunal remains the same at www.informationtribunal.gov.uk

5. FOI veto not justified, Information Commissioner says

The Information Commissioner, Christopher Graham, has issued a report to Parliament on the Government’s FOI veto regarding the ICO’s decision to order disclosure of 1997 Cabinet Committee minutes on devolution.

The Commissioner “particularly regrets that the exercise of the veto prior to the full hearing of the appeal before the Tribunal meant that the issues in dispute were not put to the Tribunal for a consideration which would, in part, have been conducted in closed session. The Commissioner notes that, notwithstanding the criticisms in relation to paragraph 29 of his Decision Notice which were contained in the Secretary of State for Justice’s statement of reasons, these were issues which the Commissioner had conceded as early in proceedings as his response. Given that concession, the Tribunal might have varied the original Decision Notice in any event.”

“Whilst the veto cannot, by definition, be exercised until the Commissioner has issued a Decision Notice, it is regrettable that this case has, in effect, been summarily determined so close to the date fixed for a final hearing.”

The Commissioner says that had the case been permitted to proceed to a full hearing of the appeal, “the arguments both for and against disclosure would have been rehearsed fully (albeit in closed session) before an impartial Tribunal comprising of a legally qualified Chair and two experienced lay members. As already noted, that panel might have concluded that, to a greater or lesser extent, Commissioner’s findings were flawed and might have substituted the Decision Notice. In the Commissioner’s view, that is precisely the function of the Tribunal.”

See the Information Commissioner’s report from 5 January at www.ico.gov.uk

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