PL&B FOI E-news, Issue 40

1. Freedom of Information requests with fictitious names can be refused

The Information Commissioner’s Office (ICO) has published new guidance to help public authorities respond to information requests from people using pseudonyms or fictitious names to disguise their real identity.

According to the guidance, public authorities are entitled to treat a request as invalid where the real name of the requester has not been used. The ICO itself will not be dealing with complaints that come from known pseudonyms and false names such as Mickey Mouse or Mrs Sue D. Nym.

The guidance urges public authorities to apply common sense. Where an obvious pseudonym is used, it is good practice for the public authority to consider a request as it may be happy to release the information, even though technically the request is invalid. If a public authority chooses not to comply with the request, then it should advise the applicant that the Freedom of Information Act requires their real name before the request is deemed valid.

2. Information Commissioner’s FOI spot checks begin in April

The ICO will start a programme of spot checks in April to check whether public authorities have adopted publication schemes, Richard Thomas said on 13 January to the Justice Select Committee.

Publication schemes are required under section 19 of the FOIA and all public sector organisations should have adopted a publication scheme from 1 January 2009. To help public authorities, the ICO has published a model publication scheme, and produced a series of definition documents for the main parts of the public sector. These documents identify the type of information the ICO expects to be included in each class.

3. Information Commissioner-to-be gives evidence to House of Commons Justice Committee

Christopher Graham, Advertising Standards Agency’s (ASA) Director General, proposed by Jack Straw, Justice Minister, to become the new Information Commissioner, gave evidence at a pre-appointment hearing at the House of Commons Justice Committee on 27 January.

When asked about his overall approach on data protection and issuing data, Graham said: “First of all, that the organisation should be well led and well managed, that it should be effective and efficient. I think that is the sine qua non, it is the licence to practice. The Information Commissioner has got to demonstrate that he is delivering a service across the responsibilities of data protection and Freedom of Information and so on, that we can tackle the backlog of delays on the Freedom of Information side, for example, and win the respect of all stakeholders, which I think then gives the Information Commissioner the platform on which to contribute to public policy debates around data protection and Freedom of Information and so on.

I would emphasise very much the importance of the education and information side with the enforcement and the sanctions as the big stick in the cupboard. It is important that everyone knows it is there and will be got out only if necessary. There is the huge task of education and helping people to comply, which has always been my approach with the Advertising Standards Authority.

I am not particularly interested in waiting around the corner saying, "Aha, we've got you," but that is necessary from time to time. It is much more important to put the resources in to making sure that public authorities and commercial organisations decide what their responsibilities are and they get on with it. But they have got to believe that if they get things wrong, the Information Commissioner will be effective and will be prompt and, in addition to the reputational damage which necessarily arises from getting things wrong, there will be sanctions visited upon miscreants.

And finally, my approach would very much be the need to convince the authorities and stakeholders in general of the absolute independence and integrity of the Information Commissioner. I think we achieve that by being absolutely evidence based, cool, calm, determined to defend decisions that are being properly arrived at, praised when necessary. But the first thing to do is to win the respect of all those who are interested in this area by manifestly running an effective operation at a time of great challenge and great change.”

Graham was pressed to say whether he could accept the role without knowing that adequate resources were available. Graham said he had not had those discussions as yet.

He agreed with Richard Thomas’s recommendation that commitment to DP compliance has to be made at board level.

See uncorrected evidence

4. New guidance to help public authorities when charging for Environmental Information Regulations (EIR) requests

The ICO has published new guidance to help public authorities identify appropriate charges for requests received under the Environmental Information Regulations (EIR). When dealing with requests for information under EIR, public authorities are permitted to charge a reasonable amount. Charging for environmental information clearly states that where charges are applied, they must cover only actual costs incurred by the public authority in producing the information, for example, the cost of paper, printing and postage. Unlike the charging regime for freedom of information requests, public authorities dealing with an EIR request cannot charge for the amount of time taken to identify, locate and retrieve information, which may be done when the appropriate limit has been exceeded.

The guidance was published on 26 January 2009.

5. Proposal to halve ’30-year-rule’

The so-called 30-year rule on automatically releasing government records should be changed to 15, says a review Committee headed by Paul Dacre, Editor in Chief of Associated Newspapers. The Committee’s report, published on 26 January, says that the “15 year rule” could be introduced gradually over a period of time, and be fully operational by 2025.

The report on 30-year rule can be seen at the National Archives.

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Copyright Privacy Laws & Business 2009