written evidence from leeds city council

8/3/2019 Written Evidence From Leeds City Council

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FOI 91Written evidence from Leeds City Council

Executive Summary

The Council believes that overall the Act does work effectively, but that it has a

number of significant weaknesses. The Council believes that in the main the Act isworking in the way that it was intended to, and that it has led to more informationbeing put into the public domain.

Evidence on

• Does the Freedom of Information Act work effectively?

• What are the strengths and weaknesses of the Freedom of Information Act?

• Is the Freedom of Information Act operating in the way that it was intendedto?

1. The Council believes that overall the Act does work effectively, as between theCouncil and FOI applicants, and helps the Council fulfil its value of being open andhonest. It is well-used by citizens, the press and media with the Council receivingover 1200 requests in financial year 2010-2011, and with an increase ofapproximately 60% in request numbers in the current financial year. The Actcontains key exemptions designed to protect private information, and commerciallyvaluable information, so that information in the Council’s hands is protected wherethis is necessary. In the vast majority of cases - approximately 90% - the Councildiscloses the information requested or directs the applicant to the source of thatinformation if it is already in the public domain. The key exemptions appear to be

well understood and accepted by applicants. The Council receivescomplaints/appeals in only a very small proportion of cases – approximately 1%,and applications are made to the Information Commissioner’s Office (ICO) in onlyabout 0.5% of cases.

2. We believe the Act has the following strengths and weaknesses

1. The Act provides an applicant with the right to have “information”communicated to him (Section 1(1)(b)), and provides that a request forinformation is one which “describes the information requested”.However, the ICO has interpreted these provisions so broadly that a

request for all the information in a specific file, or database would be avalid request. Likewise a request for “all the information in X’s e-mailsbetween 1 January and 31 December” would be regarded by the ICOas a valid request. Please see Decision Notice Reference FS50298572,dated 2 December 2010. This places a very significant resource burdenon public authorities. Under the Freedom of Information and DataProtection (Appropriate Limits and Fees) Regulations 2004, authoritiesare only able to put the cost of certain defined activities towards the“appropriate limit”, such as locating, retrieving and extractinginformation. They cannot include the cost of time spent consideringexemptions. If a request for “all the information” in a file, or database or

e-mail account is a valid one, authorities are obliged to considerpotentially thousands of items of information to see whether an



FOI 91exemption could, or should be applied, and are not be able to count anyof the cost of so doing towards the appropriate limit. We do not considerit was intended to place such a burden on public authorities. In addition,we consider it must be appropriate that an applicant has a particularsubject or issue in mind when they seek information, and that this must

be described sufficiently in the request. In our view, it should not besufficient for an applicant to describe the particular medium in whichinformation might be held, such as a file or e-mail account, but rather avalid request should be a request for information about a particularsubject or issue.

2. We believe the Act does not enable authorities to reject what arepatently frivolous requests. For example, the Council has received anumber of requests about ghost sightings and paranormal activity in itsbuildings. In this respect we believe that in addition to a public authoritynot being obliged to comply with a “vexatious” request, Section 14(1)

should be extended to provide that an authority is not obliged to complywith an obviously frivolous request, in the same way that theCommissioner is entitled not to make a decision on an application whichis “frivolous or vexatious” under Section 50(2)(c). In addition, we believethat the threshold set by the ICO and by the First-tier Tribunal for whatamounts to a “vexatious” request is too high, and that the guidanceissued by the ICO in this respect should be revised.

3. We believe that the appropriate limit of £450 specified by theRegulations mentioned above should not stand in isolation from thenumber of requests a public authority receives, and that this limit shouldbe linked in some way to the volume of requests received, possibly witha limit by individual applicant or by subject matter.

4. We believe that insofar as the appropriate limit is calculated byreference to staff time, the upper limit of £25 per hour is whollyunrealistic and outdated and should be revised so that authorities canmake this calculation by reference to the actual cost of staff time.

5. We consider that the time for compliance with requests, “promptly andin any event not later than the twentieth working day following the date

of receipt”, in Section 10(1) takes no account of the volume of requestsa public authority might receive at any particular time, or the resourcesavailable to it. We think this time limit should be more flexible andshould be linked to numbers of requests in some way, or should berevised to extend the time available.

6. We consider the exemptions in Section 41 (information provided inconfidence), and Section 43 (commercial interests) have not beenapplied in a way which acknowledges the potential prejudice toauthorities and to bidders for public contracts. In particular, we wouldrefer to Decision Notice Reference FS50265157 dated 27 May 2010

where the Commissioner took the view that disclosing an administrationfee payable under a contract “may increase competition and drive



FOI 91prices down”, and rejected the argument that there was a strong publicinterest in prospective bidders not being discouraged by the fear theywould not be on a level playing field with their competitors by reason ofdisclosures made in response to information requests. We wouldrespectfully suggest that the Information Commissioner lacks the

necessary expertise and experience to form a view as to effects ofparticular disclosures on public procurement exercises, and that greaterweight should be place on the views of the public authority concerned.

7. Generally, we believe the Act prevents authorities and the ICO fromdistinguishing those requests where there is a clear public interest indisclosure from those requests which serve the private interests of theapplicant either entirely or primarily. Authorities and the ICO are boundto give weight to a number of general public interests in disclosure suchas openness, transparency, and accountability for the spending ofpublic money, even where applicant’s request is patently self-interested

and cites none of those interests, and where there is no actual evidencethat those purposes will be served by the particular disclosure. In ourview, the Act should make it clear that where the public interest test isapplied, the requirement to apply the test taking account of “all thecircumstances of the case”, means that an authority is entitled to takeaccount of such factors as the number of similar requests for the sameinformation, the number of individuals likely to benefit from disclosure,and whether the applicant or other individuals will derive some personalfinancial or other benefit from the disclosure. By way of evidence wewould refer to the Decision Notice specified in paragraph 6 above.

8. We believe that the ICO’s investigation and decision-making processplaces an unnecessary burden on public authorities. In our view, theICO’s screening process for rejecting applications which are “frivolousor vexatious” under Section 50(2) is inadequate. In addition, althoughthe ICO places strict time limits on authorities for responses to the ICO’sinvestigations about how an FOI request has been handled, authoritiesare given no overall indication of how long an investigation will take orhow long it will take the ICO to issue a Decision Notice.

9. We believe that most of the exemptions contained in the Act are clear,

and are well understood by public authorities and FOI applicants.However, one or two exemptions are overly complex and technical, anddifficult to apply – in particular, the exemption in Section 30(investigations and proceedings conducted by public authorities), andthe exemption in Section 40 (personal information).

3. We believe that overall, the Act is operating in the way it was intended to.Although local authorities have long been required to publish significantamounts of information relating to their formal decisions, the Act has increasedthe amount of information published both routinely by the Council, and inresponse to individual requests. However, we do not believe it was intended

that the Act should enable information with a commercial value to be exploitedby an applicant. At present, it is unclear to what extent an authority can charge



FOI 91for information in accordance with its publication scheme, before thatinformation is no longer “reasonably accessible” to an applicant under Section21. In our view, where an authority has reasonable grounds for believing anapplicant intends to exploit information commercially, there should be anexemption which requires their request to be dealt with under the Re-use of

Public Sector Information Regulations 2005 which permit charges coveringcertain costs and a reasonable return on investment.

February 2012

written evidence from leeds city council

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