REPORT OF: DIRECTOR OF DEMOCRATIC AND LEGAL SERVICES 13/358 WARDS AFFECTED: ALL

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1 REPORT TO CABINET TO BE HELD ON 15 OCTOBER 2013 A ITEM Key Decision YES or NO Forward Plan Ref No Corporate Priority All Cabinet Portfolio Holder Cllr Jane Kenyon REPORT OF: DIRECTOR OF DEMOCRATIC AND LEGAL SERVICES 13/358 WARDS AFFECTED: ALL SUBJECT: FREEDOM OF INFORMATION - REVIEW OF PERFORMANCE AND CHARGING RECOMMENDATION (S): It is recommended that: (a) the report be received and that action being taken to improve the management of requests made under the Freedom of Information Act be noted; and (b) the charging regime be amended as detailed in Appendix 4. REASON FOR RECOMMENDATION (S): To improve the Council s approach to requests under the Freedom of Information Act 2000 (the Act ) and to ensure that the Council meets its statutory obligations under the Act in an efficient and effective manner. HIGHLIGHTED RISKS: That the Council fails to meet its statutory obligations under the Freedom of Information Act leading to: damage to the public s perception of the openness and transparency of the Council; and/or

2 action being taken by the Information Commissioner s Office. In addition, due to the increasing amount of FOI requests received by the Council and ongoing efficiencies, failure to improve the way in which the Council manages these requests will lead to an unacceptable pressure on resources. 1. INTRODUCTION 1.1 Previous reports to Cabinet have set out the Council s approach to dealing with its obligations under the Act, including the Model Publication Scheme, Guide to Information and scheme of charging. 1.2 The Act provides public access to information held by public authorities. It does this in two ways: public authorities are obliged to publish certain information about their activities; and members of the public are entitled to request information from public authorities. 1.3 This report sets out the Council s current approach to meeting its statutory obligations under the Act and sets out recommendations for revisions to the current charging scheme, and for improving management and control of requests received. 2. CORPORATE AIMS/PRIORITIES AND THE COMMUNITY PLAN 2.1 Ensuring the Council meets its obligations under the Act supports all the Council s Corporate Aims/Priorities and in addition supports the Council s value of Honesty and Integrity we will have openness in our systems and processes, so that stakeholders can have confidence in our management processes and decision making arrangements. 3. BACKGROUND AND ISSUES 3.1 The Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. 3.2 Recorded information includes printed documents, computer files, letters, s, photographs, and sound or video recordings. The Act does not give people access to their own personal data (information about themselves) such as their health records or credit reference file. If a member of the public wants to see information that a public authority holds about them, they are required to make a subject access request under the Data Protection Act The main principle behind freedom of information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. This is sometimes described as a presumption or

3 assumption in favour of disclosure. The Act is also sometimes described as purpose and applicant blind. 3.4 This means that: Everybody has a right to access official information. Disclosure of information should be the default in other words, information should be kept private only when there is a good reason and it is permitted by the Act; An applicant (requester) does not need to give a reason for wanting the information. On the contrary, refusing them information must be justified; All requests for information must be treated equally, except under some circumstances relating to vexatious requests and personal data. The information someone can get under the Act should not be affected by who they are. The Council is required to treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers; and Because all requesters should be treated equally, information should only be disclosed under the Act if it would be disclosed to anyone else who asked. In other words, any information released under the Act should be treated as if it were being released to the world at large. 3.5 This does not prevent the Council voluntarily giving information to certain people outside the provisions of the Act. 3.6 The Act covers all recorded information held by a public authority. It is not limited to official documents and it covers, for example, drafts, s, notes, recordings of telephone conversations and CCTV recordings. Nor is it limited to information created by the Council, so it also covers, for example, letters received from members of the public, although there may be a good reason not to release them. 3.7 Under the Act, responses must be sent to requests for information within 20 working days, regardless of the nature and complexity of the request. In addition, where an applicant is not satisfied with the response they receive, they can request that a review to be undertaken and this should be dealt with in a similar timescale. Applicants also have a right of appeal to the Information Commissioner if they are not satisfied with the speed or content of the response they receive. 3.8 There are a number of exemptions which can apply and all requests are screened to determine whether or not application of an exemption would be appropriate. A summary of classes of exemption is attached as Appendix CONSULTATION 4.1 In the preparation of this report, officers have consulted with members and officers most affected by the submission of requests under the Act. Officers have also engaged with persons submitting requests. In order to ensure the

4 Council is following best practice in this area, officers continue to consult with colleagues across the region and in other authorities. 5. ASSESSMENT 5.1 Analysis of requests received by the Council under the Act shows that the number of requests received since the introduction of the Act has increased significantly year on year. The table below shows the number of requests to be as follows: Table A average per TOTAL month 2004/ / / / / / / / / /14 to date Average FOI Requests received per month / / / / / / / / / / 1 4 t o d a t e The number of requests submitted by the Top ten most frequent requesters is as follows: Table B Grand to date Total A - Individual B Journalist C Journalist D Individual E Individual F Journalist G Journalist H- Private Company I Individual J - Individual Analysis has also been undertaken to determine whether requesters are individuals, journalists, private companies, etc, and this shows:

5 Table C Other inc Police, Student, Solicitor 1.2% Private Company 23.6% Charity 1.9% Council Member, Member of Parliament, Political Party, Trade Union, Town/Parish Council, Public Body 3.8% Journalist 18.5% Individual 51.0% 5.4 An analysis of the top ten requesters in Table A shows that 5 are private individuals, 4 are journalists and 1 is a private company who regularly requests information re Public Health Funerals (it is perhaps worth noting that the majority of information regularly requested by this company is considered to be exempt from disclosure and the applicant will therefore be sent a refusal notice for each request). 5.5 In the case of Journalists and Private Companies, the requests are often found to have been sent to a large number of authorities to gather information for media stories or commercial interests. Regardless of this fact, such requests have to be dealt with in accordance with the legislation. 5.6 Analysis shows that, in 2012/2013, 350 hours of officer time were devoted to recording, acknowledging, and forwarding FOIA requests to the appropriate department, dealing with responses and queries, and maintaining the Disclosure Log. This equates to an average of 0.63 hours per request and does not include time spent considering whether the information is held by the Council, locating information, considering exemptions or preparing responses, etc. Based on the costing figures permitted by the Act of 25 per person per hour this equates to a cost of per request and an aggregate cost of 8, It should be noted that the Council has established electronic work streams to streamline its procedures. However, every request has to be considered individually and where Officers consider that one or more exemptions apply to some or all of the information requested, a detailed response is required to set out all the issues, including the rationale for refusal, explanation of public interest tests, etc. These responses can be complex and time consuming to prepare.

6 5.8 The length of time spent collating information to comply with requests for information can be considerable. Under Section 12 of the Act, the Council can refuse to deal with a request where it estimates that it would exceed the appropriate cost limit based on an hourly time charge of 25 to: - either comply with the request in its entirety or; confirm or deny whether the requested information is held. The estimate must be reasonable in the circumstances of the case. 5.9 The appropriate limit is currently 600 for central government and 450 for all other public authorities. Regulation 4(3) of the Fees Regulations states that a public authority can only take into account the costs it reasonably expects to incur in carrying out the following permitted activities in complying with the request: determining whether the information is held; locating the information, or a document containing it; retrieving the information, or a document containing it; and extracting the information from a document containing it However, the Council cannot include the staff time taken, or likely to be taken, in considering whether any exemptions apply in the costs estimate as this activity does not fall within the list of permitted activities. Also, the staff time taken, or likely to be taken, in removing any exempt information in order to leave the information that is to be disclosed, often referred to as redaction, cannot be included as part of the costs of extracting the requested information All public authorities are required to calculate the time spent on the permitted activities at the flat rate of 25 per person, per hour. This means that the appropriate limit will be exceeded if it would require more 18 hours work for Council Officers. Where the Council claims that section 12 is engaged, it should, where reasonable, provide advice and assistance to help the requestor to refine the request so that it can be dealt with under the appropriate limit As an example of the amount of time it can take to respond to a request, recently, requests have been received for copies of mileage claims. Time to locate the appropriate claims from within the Filing systems is estimated at 2 hours. Further time has been spent redacting the documents and preparing them for disclosure (upto 2 hours). The cost implications, based on the flat rate, is 100 in officer time alone. If this is used as a benchmark for the cost of responding to requests, based on 538 requests received in 2012/14, it shows an approximate figure of 67,500 as the estimated cost of responding to such requests. If all requests were to take the 18 hours allowed before the cost exemption criteria applies, then the cost in officer time based on 25 per hour would be in excess of 240,000. In practice, most responses do not take 18 hours to prepare, however, this does serve to illustrate the effect on

7 Council resources of the increasing numbers of requests being received. It should also be noted that the flat rate charge of 25 per hour which has to be applied is not truly reflective of the actual cost to the Council as the hourly rate will vary depending on the Officer dealing with the request, and clearly many responses require input from senior officers Some requests are repeated, and improved monitoring will allow identification of information requested regularly, so that this information can be published in a routine basis and included in the publication scheme, thereby reducing staff time in dealing with requests. However, where exemptions apply to such repeat requests then individual responses must be prepared for each request. Specific rules/exemptions do exist which allow the Council to refuse to respond to repeat requests and, in addition, where a request is deemed to be vexatious it may also be refused, but strict criteria exist which must be applied and evidenced Clearly the Act does create resource issues for the Council, as the amount of officer time now required to be devoted to managing, monitoring and responding to requests has increased significantly, in line with the increasing numbers of requests being received Monitoring of speed of response has been in place for a number of years, and the introduced of improved monitoring and management of requests highlighted that performance against the 85% within 20 days target was declining and had become a matter of concern. The Role of the Information Commissioners Office (ICO) 5.16 The ICO s mission is to uphold information rights in the public interest. The Organisation gives guidance to citizens and organisations, rules on eligible complaints, and takes appropriate action when the law is broken. Specifically, where authorities repeatedly or seriously fail to meet the requirements of the legislation, or conform to the associated codes of practice, the ICO is able to take a range of action to enforce compliance. Speed of response to requests is an important issue and the ICO expect that the 20 day response time should be achieved for in excess of 85% of requests. Sanctions by the Information Commissioners Office can be imposed for not meeting targets. Where requesters are not satisfied with responses received and/or speed of response they have a right of appeal to the Information Commissioners Office. Action being taken to improve the Council s performance 5.17 Requests made under the Act are now actively managed through use of a Dashboard, which monitors response rates and times by individual service area. The dashboard highlights numbers of requests received, and categorises them to allow tracking and ensure responses are prepared see Appendix 3. The dashboard also allows drill down to retrieve all documents relevant to individual requests.

8 5.18 The development of the dashboard has allowed for detailed analysis to be undertaken of the types of request being made, by whom and at what frequencies In order to address the issues of declining performance, additional resources have now been allocated to the management and monitoring of requests. This is proving successful with performance now improving. The latest figures show that 80.5% of requests for 2013/14 have been completed on time. Table D below shows the percentage of requests completed in 20 days by year and table E illustrates the percentage of requests completed in 20 days by month for the last two financial years. Table D 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 2004/ / / / / / / / / /14 to date % Responded to in 20 days target

9 Table E % of FOIA requests responded to in 20 days 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR 2012/ /14 target 5.20 In addition, a number of other actions have been identified which would assist in improving the Council s response to requests for information under the FOIA, one of which relates to amending the current charging regime and stricter application to recover disbursements such as costs of photocopying, postage, etc. Charging Regime 5.21 Cabinet approved the current charging regime in 2008, report reference HLSS/08/52. This allowed for the framework to continue to be set by individual cabinet members. In practice, there has been no increase in charges and costs have rarely if ever been charged. With increasing costs and the Council requiring further efficiencies, there is a need to ensure that the costs of complying with the Act are fully recognised The Council is keen to promote the Data Transparency agenda and has therefore been reluctant to charge to date. However, the increasing numbers of FOIA requests being received and continuing budgetary pressures on the Council mean that officers have had to reassess this position. It is therefore proposed that the charging regime set out in Appendix 4 is adopted. 6. IMPLICATIONS (a) Policy 6.1 This report is in line with the Council s policy framework.

10 (b) Legal 6.2 The measures referred to in this report are designed to ensure that the Council complies with it obligations under the Act. (c) Financial Implications, 6.3 Although the Council is restricted in the costs it can recover through the processing of FOI requests, it is hoped that by stricter monitoring and application of the charging schedule the Council can go some way to recovering costs incurred. (d) Staffing Implications 6.4 The marked increase in FOI requests received by the Council had led to less than satisfactory performance against targets for FOI due to increased pressure on a reducing number of staff. Although the steps taken to streamline the processing of requests have led to pleasing improvements, Members should be aware that staffing resources in this area remain under pressure. (e) Others 6.5 I have considered whether any of the following implications arise from this report and am satisfied that there is no identified implication that will arise from this decision: Sustainability Impact Appraisal, Equalities and Diversity, Planning, Crime and Disorder, Health and Safety and Environmental. 7. ACTION PLAN Action Date Implementation of Revised Charging scheme 15 October 2013 Continued monitoring of response times 15 October 2013 Lisa Dixon Director of Democratic & Legal Services Author: Lisa Dixon Telephone No: address: lisa.dixon@scarborough.gov.uk Background Papers: None

11 Risk Matrix Risk Ref Date Risk Consequences Mitigation Current Risk Score Target Score Service Unit Manager/ Responsibl e Officer Action Plan 1 Oct 2013 That the Council fails to meet its statutory obligations under the Freedom of Information Act 2 Oct 2013 increasing amount of FOI requests received by the Council and ongoing efficiencies, failure to improve the way in which the Council manages these requests damage to the public s perception of the openness and transparency of the Council; and/or action being taken by the Information Commissioner s Office. unacceptable pressure on resources Development of dashboard and procedures in place to ensure monitoring of response times etc Continued monitoring Further streamlining of processes Director of Democratic and Legal Services Director of Democratic and Legal Services Continue to monitor and report through PMF

12 Glossary of Terms Risk An event which may prevent the Council achieving its objectives Consequences The outcome if the risk materialised Mitigation The processes and procedures that are in place to reduce the risk Current Risk Score The likelihood and impact score with the current mitigation measures in place Corporate Objectives An assessment of the Corporate Objectives that are affected by the risk identified. Target Risk Score The likelihood and impact score that the Council is aiming to achieve Service Unit Manager The Service Unit or Officer responsible for managing the risk Action Plan The proposed actions to be implemented in order to reduce the risk to the target score Risk Scoring 5 4 Impact A B C D E Likelihood Likelihood: Impact A = Very Low 1 = Low B = Not Likely 2 = Minor C = Likely 3 = Medium D = Very Likely 4 = Major E = Almost Certain 5 = Disaster