Select Committee on Constitutional Affairs First Report


3 Snapshots of preparedness by Sector

The Police Service


18. Of the non-central government public bodies, one of the best prepared appears to be the Police Service, made up of 44 Police Forces across England, Wales and Northern Ireland and represented by the Association of Chief Police Officers (ACPO). In its written submission to us the DCA described the police as "well prepared for implementation of the Act".[16] Preparations for compliance were co-ordinated by ACPO which develops policing policies on behalf of the Police Service as a whole. FOI Matters come under the ACPO Information Management Committee, which is chaired by Tom Lloyd, Chief Constable of Cambridgeshire Constabulary. The FOI Portfolio is one of 8 under that Committee and is chaired by Deputy Chief Constable Ian Readhead of the Hampshire Constabulary.

19. ACPO established a national project for FOI implementation in December 2001, after the Chief Constables' Council agreed to provide funding; all forces paid £3,500 to fund the project until January 2005. A Project Manager (a Chief Inspector) and a Project Support Officer were recruited from and are housed by Hampshire Constabulary. The ACPO FOI project is currently on stage 9 of an expected total of 10 stages. The project is due to finish in March 2005. The project's objectives were to produce the following:

  • A Model Publication Scheme, approved by the Information Commissioner
  • A Communications Strategy for the Police Service
  • FOI Compliance Guidelines: best practice and lessons learnt from overseas public authorities
  • A Training Strategy for the Police Service in conjunction with Centrex
  • A Manual of Guidance detailing a common interpretation of responsibilities required under the Act and guidelines for action where legislation allows discretion to be applied
  • A national template for local administration of FOI legislation, completed under a Workflow system
  • A Single Point of Contact to advise and assist the Police Service on FOI issues and to provide an interface with other organisations (including the Information Commissioner).[17]

20. By October 2004 the project had produced and circulated to all police forces a 'Compliance Toolkit for the Police Service' which:

  • Introduced the national project team and described what the project team would produce.
  • Provided an overview of FOI
  • Gave guidance on Section 45 Code of Practice—Discharge Functions
  • Gave guidance on Section 46 Code of Practice—Records Management
  • Provided LCD draft regulations on fees
  • Introduced and described the ACPO Publication Scheme
  • Provided useful references.[18]

21. However, there were certain areas where ACPO highlighted concerns about effective implementation. For example, while ACPO has produced a 350 page Manual of Guidance for FOI implementation, it is not clear how consistently it will be applied across 44 different police forces:

    The Manual of Guidance will be submitted to the Bichard Working Group to ensure it is linked to the new Code of Practice for Police information management […] This is a key area where we need consistency. Although there are 44 forces we are all doing the same role, i.e. policing, and there is a massive opportunity for the Service to be "divided and conquered" by requests if there is inconsistent application of the Manual of Guidance.[19]

22. Another factor, as explained by Deputy Chief Constable Ian Readhead, is that every chief constable is operationally independent and ACPO has no enforcement powers.

    [ACPO] has no right to enforce our policies upon any chief officer. Every chief constable is a data controller in their own right. What we seek to do is promulgate best practice and corporate policy across the service which hopefully drives through good efficiency savings and adds to the consistency that you would like to see in every force.[20]

That said, most forces tend to follow ACPO guidelines and there was no indication that significant problems of compliance with the work approach had arisen.

23. The Police Service was particularly concerned to learn from the experiences of the Soham case and the resultant Bichard inquiry, which included police procedures for national data-sharing among its recommendations.

    [W]e have worked very hard over the last two years with great assistance from the Information Commissioner's Office to ensure that we have corporacy across the service. I would have to say that this has caused a shudder through the backbone of some of my colleagues especially in Special Branch and in the Police Service in Northern Ireland for quite obvious reasons, but what we have tried to do is to communicate to them how we think the legislation will impact on their business, how they will meet compliance and how they can use the Act legitimately in order to sustain public confidence and public safety whilst at the same time being transparent and accountable as a public service. So we are confident that we have achieved the core aims of the legislation.[21]

24. Overall, the ACPO representatives expressed themselves confident that, while some forces were well ahead of others, all the police forces would be compliant on 1 January 2005. Nationally they had trained 350 decision-makers and were putting in place framework agreements for procurement of workflow systems with 28 forces.[22] Regular communications on developments are facilitated through a regional structure of six groups (plus Scotland as a seventh, whose ACPO collaborated with England, Wales and Northern Ireland on FOI). These groups meet regularly, and a national database facility called 'Genesis' provides guidance on the Act. [23]

25. ACPO's confidence was supported by the Information Commissioner's Office (ICO). The ICO described the police service approach as "highly structured" and "well advanced", and concluded that ACPO had made "excellent use of the time between Royal Assent and final implementation to get the police service into an advanced state of preparedness". However, the ICO also questioned whether the preparations "will in fact prove to be sufficient to meet the reality of the live FOI environment".[24] The structured approach of ACPO created an impression of much greater readiness for full implementation than the two other areas of public service which we deal with below. Although ACPO is only an advisory body, the organisational traditions of the Police Service lend themselves to a more coherent overall approach to the implementation of freedom of information legislation than other areas of the public service which may involve independent professional practitioners or a diverse range of activities on widely differing scales. We doubt that many areas of the public service, away from central government, can be as confident as the Police Service of full implementation on 1 January 2005.

ACPO Views on the Role of the DCA

26. In its evidence to the inquiry ACPO identified some areas of concern regarding the central co-ordinating role of the DCA. For example, they argued that the DCA missed an opportunity to implement the Act efficiently by failing to establish a process for handling requests for data that might belong to different agencies—an occurrence which is common for the police service. They argued that, "this topic should have been addressed by the DCA across the whole public sector to provide an overview to all public authorities".[25] ACPO described this as an area where they had "major concerns".[26]

27. ACPO also pointed out that the DCA failed to provide strategic guidance in the establishment of a central referral process to manage requests that are issued to several police forces at the same time. In its submission it states:

    A central referral process is required to manage requests that are issued to several (or all) forces at the same time. To date several such requests have already been received. The Police Service require an essential overview of these requests, to ensure that all forces respond uniformly and to allow the determination of best practice and lessons learnt to be shared across all forces.

    We note that this is an area that we felt should have rested with the DCA to develop a strategy for public authorities in general. This is an example of a missed opportunity, which could have prevented the duplication of effort across public bodies.[27]

28. ACPO further alleged that tardiness by the DCA may have cost tax payers millions of pounds. A variety of public sector bodies each had to produce a statement of requirement for a workflow system to log and process FOI requests, rather than this work being carried out centrally by the DCA early enough. ACPO said that the statement of requirement that was promised by the DCA in November 2003 only arrived in May 2004 and substantially constrained the procurement process.[28]

29. The DCA told us that it had decided not to procure a system centrally, preferring to issue a generic specification for the whole of the public sector which could then buy individually specific systems. It admitted that this decision on the procurement of common IT systems did not occur until "April 2004", following "active discussion" in "the latter part of 2003".[29]

30. ACPO pointed out that there were some good examples of how the DCA and the ICO worked well together with them in preparatory work for implementation:

    A Model Publication Scheme has been adapted by all 44 forces. The DCA and the ICO were instrumental in organising meetings to design and agree the Publication Scheme. This is an example of successful collaborative work between the Police Service, the DCA and ICO.[30]

But although the DCA did begin the process towards implementation early enough, ACPO's view was that the "tremendous energy" from the Department was not evident after June 2003 when the publication schemes were approved.[31]

31. Thereafter, advice on the procurement of the national workflow systems, manuals of guidance and training did not mature under the DCA's leadership as they had expected.[32] This lack of support in a number of key areas may have been due to the high turnover of staff in the Department. ACPO noted that different officials attended each quarterly meeting of the Lord Chancellor's Advisory Group.[33] This turnover, ACPO told us, "did not assist the strategic development of the Act in the way in which we had seen it develop up until the publication scheme".[34]

32. Faced with inadequate guidance on a number of important areas, ACPO was forced to seek legal advice such as on how the public interest test for exemptions would be interpreted because guidance from the Department came so late, with the result that staff training had to be changed.[35] Another issue on which they had taken their own legal advice was that of defining what constitutes the supply of a name and address. Deputy Chief Constable Readhead told us that:

    There are some elements of the Act which have certainly caused us some concern in relation to its interpretation. For example, the name and address of the applicants. We are not clear, and the legislation does not help us, whether that means somebody has to put their full name and address or whether it can be an e-mail address. We had conversations with the Information Commissioner and the Commissioner took the view that an e-mail address was sufficient. We had some concerns about that and sought legal advice. I have to say the likelihood is that the Information Commissioner is going to be right in relation to address but perhaps not right in relation to name. So if we get Mickey Mouse making an application to us we might take a view that could come from a vexatious applicant ...[36]

33. ACPO also noted that the state of preparations amongst agencies they work with was not consistently good.

    [W]hen we have looked at data-sharing and we have gone to other organisations who we share data [with we] sense that they are pretty under-developed in relation to their compliance strategy […] I think it is still a bit patchy in some of the public service areas. [37]

ACPO added that "all the guidance issued by DCA has been Whitehall centric and consideration to other authorities has not been given".[38]

Conclusion

34. ACPO concerns were focused on certain areas. Central guidance appears to have been lacking in important areas including organising co-operation between different departments and agencies, ensuring consistency between different police forces in dealing with requests and lateness in producing general guidance on technical issues such as IT systems. It is also clear that a significant change occurred from June 2003, possibly as a result of staff changes in the DCA (this issue is dealt with below in Section 4).

The Health Sector


35. In contrast to the apparently solid picture on the part of the police service, the Information Commissioner was less sanguine about preparedness in the health sector. He said:

The NHS FOI Project

36. The National Health Service established a FOI Project to support progress across the health sector toward implementation. The NHS FOI Project had three broad aims:

·  To ensure the orderly introduction of the Act in the NHS on the basis of good understanding, support and recognition of the benefits conferred by the Act by all NHS organisations in England.

·  To ensure that effective Publication Schemes approved on the basis of model schemes by the Information Commissioner are in operation in all NHS organisations in England by 31 October 2003.

·  To review and evaluate this implementation plan and recommend how best to take forward the requirement for full access regimes to be in place by 1 January 2005.[40]

The Project began in August 2002 and ran until January 2004. Its activities covered some 800 NHS organisations in England.[41]

37. Thereafter, it was unclear what would replace the project. On the NHS FOI website it is stated that:

    Subject to completion of the review and evaluation of the project it may be extended to implement the requirement for full access regimes, or superseded by alternative arrangements if these are thought to be more beneficial. [42]

According to our witnesses, the FOI Project Board reviewed the best way forward in January 2004 and decided that:

    there was a sufficient performance management framework within the strategic health authorities and within governance arrangements of NHS trusts to enable that to be the main performance management framework for the full access regimes.[43]

In effect, after January 2004, responsibility had passed to individual trusts and primary care trusts and the Healthcare Commission, which regulates trusts. The Department of Health has ultimate responsibility through 28 strategic health authorities (SHAs).[44] One of our witnesses described the project as having gone "as far as it could in raising awareness".[45] The Information Commissioner suggested that the lack of central coordination in the health sector was a potential weakness.

    I am aware that the health area is one where perhaps there have been no co-ordinating bodies. There has been for central government, there has been for the police and there has been to quite a considerable extent for local government. I am aware that in the health area it is a very complex area of very many players involved and that there has not been the co-ordination one might have liked. There have been two people on the Advisory Committee, one from the Health Service Confederation, another who is an ex-Department of Health civil servant who has been a consultant to the various bodies in the Health Service and they have given us reasonably positive feedback as to what has been happening in the health area. We have not had that much direct engagement ourselves.[46]

38. The NHS FOI project website identified a number of risks it said the project would address:

  • Retrospective impact of legislation
  • 'Information migration'
  • Third party disclosure in terms of key partners
  • Concern over impact of wave of 'bad news' stories which are in fact historic but are prompted by the newness of the legislation
  • Distraction/impact of GMS contract.[47]

The website does not include the results of this work.

39. The NHS FOI Project also supported the large number of individual contractors working in the health sector, most significantly general practitioners (GPs) and dental practitioners.

Preparedness of Individual Contractors

40. The British Medical Association (BMA) through its medico-legal committee, worked with the NHS Freedom of Information Act Project Team to produce a Model Publication Scheme for GPs. All GPs received a letter from the Information Commissioner in May 2003 alerting them to the scheme and the General Practitioners Committee of the BMA also made GPs aware of an example of a customised model, which had been prepared by a Local Medical Committee(LMC).[48] Practices were advised to adopt the approved publication scheme rather than develop their own, which would have required separate approval from the Information Commissioner. The BMA was involved in organising half day seminars for GPs and practice managers on the Freedom of Information Act, which were held on 5 and 15 December 2003.[49] The requirements of the Act were further published through newsletters circulated to all Local Medical Committees.

41. The FOI Act 2000 specifically defines GPs as public authorities (Schedule 1, paragraphs 44 and 45). Like larger health sector bodies, GPs are therefore required, under section 19 of the Act, to adopt and maintain a publication scheme for the publication of the information held. The publication schemes must be approved by the Information Commissioner. They essentially consist of a list or index of:

  • the types of information that a practice holds
  • a description of how it can be obtained
  • an explanation of any charges that might apply (regulated by the Act)
  • an explanation of the types of information that the GP holds but cannot make available (and why).[50]

    42. The proposed approach, according to the BMA, was that the Information Commissioner agreed that Primary Care Organisation (PCO) websites could host practice publication schemes so reducing the administrative burden and costs on GPs. Local Medical Committees were to coordinate this with PCOs at a local level. However, according to the BMA,

      In practice this has often been difficult to arrange and GPs have relied on the NHS Freedom of Information website for publication.[51]

    In effect they took the easy option and completed their publication schemes on the NHS FOI website.[52] Across the NHS more generally, all the trusts and strategic health authorities adopted the model publication schemes that were compiled from pilots, saving a lot of work.

    43. The BMA told the Committee that GP's, while willing to comply with the legislation, were often overwhelmed with work and had received no financial assistance in preparing for implementation.

      The question is going to be one of workload and the resources required to deal with it. The difficulty of course for GPs is that we have had no extra resources to cope with this and we do not know about payment schedules and so on. We do not know what, if anything, we will be allowed to charge for and, if so, how much or indeed how little if it mirrors the Data Protection Act. That would have been helpful to know. [53]

    The uncertainty of the potential number of requests, for example, had caused a number of practices to be concerned about the potential effect on patient treatment.

      If we get a small volume of requests, I think they will be dealt with very well. If we get a high volume of requests, I think it just may be that practices will be overwhelmed because of all the other things that they have to do as well and I think there is very little doubt that practices will take the view that if they are completely overwhelmed, things that relate to individual patients and their care will have to take preference over things that relate to freedom of information.[54]

    44. Some of the evidence on implementation of FOI in the health sector gave the impression of FOI simply being regarded as another hurdle that had to be surmounted, with little sign of the cultural change in attitudes towards openness which the DCA has suggested will follow from FOI. The Information Commissioner admitted anxiety over the responses which he had received from health sector bodies.[55]

    45. In its written submission to the Committee, the BMA claimed that a number of GPs claimed to have received little or no information about the Act.

      Some PCOs have been proactive in organising presentations, training for practice managers and are sending out flyers to practices reminding them of their responsibilities. LMCs have assisted by publicising General Practitioners Committee (GPC) guidance via their newsletters or by preparing their own guidance. However, a number of GPs have reported that training has been unhelpful or non existent and the information they have received has been minimal. As a result, some GPs have had to research the requirements under the Act on the internet themselves. Some practices claim to have never received anything and only found out about their obligations through speaking to colleagues.[56]

    Rather worryingly, the BMA added that:

      many GPs seem to be unaware of the full requirements under the Freedom of Information Act and consider that their duties ended with the production of the publication scheme. A high percentage of GPs have responded to say that they have not received any requests under the Act and seem to be unaware that the Act does not come into force until 1 January 2005.[57]

    46. The BMA submission also points to the fact that many GP practices do not seem to be prepared in advance for requests and have stated that they will look into this when a request comes through.

      The 20 day time limit may therefore need to be made very clear so that practices do not put the requests aside until they have time to look into the policy. Practices do not have plans in place to categorise requests i.e. to distinguish between Freedom of Information Act requests and requests under the Data Protection Act etc.[58]

    The BMA added that "practices feel that there is minimal information available which communicates their responsibilities in a simple, user friendly way. Information received by practices from PCOs to date has been confusing".[59] The DCA's Annual Report on FOI implementation notes that its guidance was available on the Department's website and would "serve as a useful reference tool for public authorities".[60] The guidance was not necessarily accessible in a user-friendly way to all those who might need it. As Dr John Grenville from the BMA put it:

      I think the increasing way of running things, where if something is published on a departmental website, it is in the public domain and everyone is assumed to know about it, causes us problems. The average GP does not actually sit down before morning surgery and log on to the Department of Health website to see what is new today, let alone the DCA website, the Home Office website, the DEFRA website, et cetera, et cetera, so to some extent GPs do rely on getting specific information directed to them to know what they have to do to comply with legislation.[61]

    47. It is clear from its evidence that the BMA does not believe that the message on FOI implementation has been given effective profile. Our inquiry has caused the BMA to contact LMCs around the country to inquire as to the state of preparedness amongst GPs. Its submission to the Committee concludes that:

      Assistance is needed in raising the profile of the Act amongst GPs, especially given the legal requirements it places upon practices. We hope that the Department will work with the BMA to ensure that further guidance reaches practices.[62]

    Conclusion

    48. Given the scale of the health sector, it is unlikely that a consistent approach to release of information will be easy to achieve. ACPO in its submission expressed concern about consistency of approach by just 44 police forces. Across the vast health sector the challenges were even greater to avoid variation of response. Mr Stephen Morris of the NHS FOI Project told the Committee in October that:

    49. Our witnesses professed themselves "cautiously optimistic" that preparations were underway for implementation across the health sector.[63] It is not clear that the whole of the health sector will be in a position to comply fully with the law on 1 January 2005. There are significant problems with ensuring consistency of approach across such a wide range of bodies which are covered by the Act. We do not underestimate the difficulties associated with introducing FOI on one date across the whole of the health service. Nevertheless, there is little evidence that the DCA has been sufficiently active in providing the necessary leadership to ensure that many of the organisational and technical problems have been addressed in time in this sector.

    Local Government


    50. In its October 2004 submission to the Committee the DCA admitted that the picture across local government was uneven—a view previously expressed to the Committee in May 2004 during evidence by the Information Commissioner. The DCA stated that:

    This clear picture of resolve was not the impression of our local government witnesses, who reported to be unclear about where responsibility lay and eager for clear guidance to emerge from somewhere. Furthermore, the Information Commissioner's office highlighted rather more concerns about the state of preparedness in local government in its October 2004 submission to the Committee.

      The picture here remains variable with concerns about the apparent lack of preparation in many local authorities, but some impressive examples of emerging good practice. In some areas with two tiers of principal councils the opportunity has been taken for county and district councils to co-ordinate their activities, facilitating a joined-up and consistent service to requesters.

      We have had much experience of local authority officers who have been given responsibility for implementing FOI expressing concern that they struggle to engage the interest of their corporate leaders, both chief officers and elected members. In many cases the legal and practical issues of compliance are recognised by the senior managers responsible and front-line staff have been trained. However, the wider implications of a cultural shift towards greater transparency and accountability are not appreciated.[65]

    51. The Local Government Association (LGA) represents the local authorities of England and Wales.[66] Like the medical sector, local government presents particular challenges for FOI implementation because of the diverse range of bodies and activities covered. Local authorities vary in size from those that employ 30,000 staff and have a gross revenue of over £2 billion to those that employ 150 staff and have a gross revenue of £30 million.[67]

    52. The LGA has supported local government preparation for FOI through a number of activities including: participation in the Lord Chancellor's Advisory Group on implementation of the Act; consultation and discussion with government departments (specifically, the DCA, and the Office of the Deputy Prime Minister), and the Information Commissioner on implementation issues; delivering advice (together with the Information Commissioner) to local authorities on developing publication schemes and working with a 'pilot' group of district, county and single-tier local authorities on implementation issues. In association with the Constitution Unit, University College London, the LGA also published two practical guides to the Act for local authorities: Freedom of information—a practical guide (published 2001) and Delivering freedom of information (published February 2004).[68]

    53. Another body supporting local government in preparing for implementation is the Improvement and Development Agency (IDeA) which was established by and for local government in April 1999. It acts at the national level to provide a focus for the implementation of local e-government and to enable local authorities to co-ordinate and share progress. It also champions the interests of local government with central government, suppliers and other sectors. The IDeA told the Committee that it had supported local authorities preparing for FOI in a number of ways including providing: an e-learning package on FOI; an FOI page on the IDeA Knowledge website; a topic briefing and resource pack on FOI and; free advice and support to individual authorities by either the e-government strategic advisor for data legislation or by a peer group of local authorities which have offered to help other authorities not as advanced with FOI as themselves.[69]

    54. According to survey results provided by the LGA from earlier in 2004, only 4% of local authorities expected to be ready by 1 January 2005.[70] This picture emerged from an annual self-assessment statement on local authorities' implementation of electronic government.

      The 2003 statement, for the first time, included a question on the authority's readiness for the implementation of FOI.

      When these returns were collated and analysed by the IDeA in April 2004, it was found that, out of the 372 returns, only 15 (4%) local authorities had assessed themselves as 'green', meaning that they expected to be able to fully comply with FOI by January 2005.

      189 (51%) authorities identified themselves as 'red', meaning that they were in serious danger of not being ready by that time; and 70 (19%) declared themselves 'amber', meaning that they thought there was some risk that they may not be able to comply. The remaining 98 (26%) responded as 'black', meaning that they either felt that the Act had no relevance to them or that they were waiting for something else to happen before they could progress with implementation.

      IDeA followed up the 15 'green' authorities in an attempt to identify good practice and to share it with other authorities. At that stage, it became apparent that there had been some ambiguity in the wording of the question and approximately half of the group re-classified themselves as red or amber.[71]

    In oral evidence Dr Lydia Pollard of the IDeA explained that this referred to being confident that their various systems (including records management for example) would allow local authorities to meet the 20-day response time.

      I think when they said 4% they meant being fully compliant in terms of having an electronic records management system, in terms of having logging and tracking systems and complaints systems in place and that is why the vast majority of authorities said that they did not feel they would be ready. The majority still feel that they will not have an electronic records management system in place by then. I think they feel that somehow they will be able to deal with the enquiries but that they will have to do it manually. So their main concern is the time that it will take them to do it and the resources they will have to put in.[72]

    55. The LGA described some of the particular problems with which they have been faced, notably records management and complex ageing IT systems. Of great concern has been the late arrival of guidance from the centre, which had often arrived in the middle of process already begun by local authorities. Two problems were described by Ms Faith Boardman, Chief Executive of Lambeth Borough Council:

      The first is a practical one, which is the nature of a local authority's business, because we provide something like 300 different services. The records management is legitimately different in that it is governed by statutes between all of those different services. I think we are peculiar in the public service in terms of the complexity of the services that we do and that certainly knocks on into issues like IT. We are moving reasonably swiftly in our case from a situation where we have had no IT in some services, very old IT in others and more modern even further, but there is a business need which all local authorities are tackling to join those systems up and modernize them. That is a very big issue and takes several years. As that comes through then I think the practical position will ease considerably. The second issue that I think we have had in practical terms is the understandable difficulty in getting guidance out to us. Obviously, in terms of actually setting out the detail of the processes and procedures and indeed the detail of the training, we do need to have that guidance in front of us. Very often, because of the timetable that we have been trying to follow, we have received them when we were part-way through doing that phase of the work and they have proved useful, but often it is as a check-list in terms of what we have been doing rather than being there at the start of each phase.[73]

    56. In its written submission to us, the LGA argued that Government and ICO guidance on FOI implementation was better suited to central government departments which in turn were supporting their relevant public bodies (such as schools and hospitals):

      Some authorities expressed concerns that central government did not understand how local authorities operated.

      When looking for guidance and advice we referred to other government departments who are supporting their users in a much more efficient way, e.g. DfES for schools and the NHS. DfES understands that information required should be in plain English, written for people who do not have a legal or records management background, that it is all about the business process and not the functional requirements of an IT system.

      S46 code[74] seemed abstract and used terms LA officers don't understand. It seems to be based on culture and business needs of civil service legal departments. Local government records reflect the degree of improvisation needed to manage large organisations with constantly changing structures. Certain services (e.g. finance) have a completely different approach to information storage, where the language of 'file closure' or the idea of discrete files for items of information are not suitable.[75]

    Local authorities were also concerned about the timescales required by the Act and the true costs of complying with a request, and overall, the LGA concluded that the level of readiness for FOI among local authorities "varies greatly".[76] Our witnesses from local government believed that 90-95% of local authorities would meet the deadlines for straightforward enquiries. Dr Pollard said that if there are: "complex enquiries which require information from several different sources and not a single service then I think [local authorities] may struggle to meet the 20 days".[77]

    Points of Concern

    57. The LGA's evidence implied that there seems to be a degree of complacency amongst the chief executives of some local authorities, who have mistakenly assumed that the existing Access to Information regime operating in local government is similar to the Freedom of Information requirements that will be in force from January 2005:

    We believe that Chief Executives in all local authorities should ensure full compliance with FOI.

    58. The FOI Act contains no explicit financial penalties for non-compliance, but if the Information Commissioner deemed a public body not to be compliant it could take that body to the High Court for contempt. This issue is discussed below in section 4.

    59. The LGA states in its submission that resources are the single most important issue of FOI compliance:

      [B]y far the largest issue for local authorities is the lack of resources. They do not have the time, money or personnel to easily organise information on a corporate basis in order to allow ready retrieval for FOI purposes. The costs of organising their manual systems and/or introducing an electronic document and records management system (EDRMS) are beyond many of their means.

      There has been no direct funding from central government for the implementation of FOI. The assumptions used to estimate costs prior to introducing the Act did not take into account issues affecting local government.[79]

    60. A major concern was removed with the eventual decision on the fees regime that would operate under the Act (discussed below in Section 3), but it came very late according to the LGA. Furthermore, there still has been no detailed guidance from the DCA on the fees regime that will operate for the FOI Act, although it has been repeatedly promised. The LGA's noted in its submission sent in before the Lord Chancellor's announcement on costs, that:

      Of particular concern is that, even at this late date, the final regulations on fees are not known. This is delaying authorities from drawing up procedures and detailed planning regarding costs and charging, and authorities fear that they will not now have these in place by 1 January.[80]

    In oral evidence to the Committee, the Vice Chairman of the LGA, Cllr. Peter Chalke, noted that:

      Only a very short time before the Act comes into place we have now seen a speech from Lord Falconer on the fees. I would remind you that we also still do not know the fees on the Licensing Act. We have been preparing, but if Government had prepared earlier and let us have the information earlier it would have made life a lot easier.[81]

    61. While the concerns raised by our local government witnesses are similar to concerns expressed by other sectors, the LGA argued that the particular challenge for local government is the sheer range of services provided by various authorities—300 different services—with particular problems of records management and pressures on information systems. As Ms Faith Boardman put it:

      I think we are peculiar in the public service in terms of the complexity of the services that we do and that certainly knocks on into issues like IT. We are moving reasonably swiftly in our case from a situation where we have had no IT in some services, very old IT in others and more modern even further, but there is a business need which all local authorities are tackling to join those systems up and modernize them. That is a very big issue and takes several years.[82]

    Another witness, Dr Lydia Pollard of the IDeA, indicated that procuring electronic records management systems, which are essential for long term FOI compliance was beyond many authorities.

      If you are talking of implementing an electronic records management system, you could easily spend £250,000 on such a system. If you are a small district authority then that is an enormous sum of money and so before you would invest in anything like that you would need to be sure that you were getting the right number of enquiries to justify implementing such a system.[83]

    62. Furthermore, the National Archives, which advises on records management, had focused its efforts on advising unitary and county councils. Local and district councils, possibly with even greater challenges, were therefore not receiving the advice they needed.[84]

    Conclusion

    63. While many local authorities will be compliant with the FOI legislation when it comes fully into force in January 2005, some will not. Successful compliance will be dependent on a relatively low initial level of requests. A 'business as usual' approach is far from the intention of the Act, which aimed to introduce a culture change in the handling of information. It seems clear that, so far, too few common standards for handling FOI requests across local government have been established. It is likely that different local authorities will handle similar requests in very different ways.

    64. Late guidance from the DCA on such matters as fees has meant that issues of central importance have had to be addressed by local government at the last moment. We are concerned that the necessary guidance for enabling all staff to understand the requirements of the Act has been produced so late. In some respects the result has been that local government has been given a few weeks rather than four years to prepare fully for the advent of FOI.


    16   Ev 88 Back

    17   Ev 64, para 1 Back

    18   Ev 64-65, para 2.1 Back

    19   Ev 68, para 4.1 Back

    20   Q 151 Back

    21   Q 153 Back

    22   Qq 171-174 Back

    23   Q 163 Back

    24   Ev 82, para 2.3 Back

    25   Ev 66, para 2.11 Back

    26   Ev 69, para 6.2 Back

    27   Ev 66, para 2.10 Back

    28   Ev 66, para 2.8 Back

    29   Qq 310-311 Back

    30   Ev 65, para 2.2 Back

    31   Q 156 Back

    32   ibid Back

    33   Q 159 (This group is discussed below in Section 4) Back

    34   Q 157 Back

    35   Q 161 Back

    36   Q 161 Back

    37   Q 179 Back

    38   Ev 69, para 6.8 Back

    39   Ev 82, para 2.4 Back

    40   www.foi.nhs.uk/proj_home.html Back

    41   Q 129 Back

    42   www.foi.nhs.uk/proj_home.html Back

    43   Q 129 Back

    44   Qq 130-134 Back

    45   Q 129 Back

    46   Q 287 Back

    47   www.foi.nhs.uk/proj_benefits.html Back

    48   Local Medical Committees are statutory bodies which represent the interests of NHS GPs Back

    49   Ev 61, paras 8 and 9 Back

    50   Ev 60, para 2 Back

    51   Ev 60, para 3 Back

    52   Q138 Back

    53   Q 139 (This evidence was given on 12 October 2004, before the Lord Chancellor's announcement on fees) Back

    54   Q 139 Back

    55   Q 288 Back

    56   Ev 61, para 12 Back

    57   ibid, para 13 Back

    58   ibid, para 14 Back

    59   Ev 62, para 24 Back

    60   op cit, HC 5, para 2.2 Back

    61   Q 139 Back

    62   Ev 62, para 25 Back

    63   Q 140 Back

    64   Ev 85 Back

    65   Ev 81, para 2.2 Back

    66   Ev 75, para 1.1 Back

    67   Ev 76, para 1.4 Back

    68   Ev 76, para 2 Back

    69   ibid Back

    70   Ev 77, para 4.3 Back

    71   ibid, paras 4.2-4.5 Back

    72   Qq 191-194 Back

    73   Q 200 Back

    74   Section 46 of the FOI Act-a Code of Practice on the Management of Records, which was produced by the then Lord Chancellor's Department in November 2002 Back

    75   Ev 79, para 6.3 Back

    76   ibid, para 7.1 Back

    77   Qq 191-194 Back

    78   Ev 78, para 5.3 Back

    79   Ev 77, para 5.2 Back

    80   Ev 78, para 5.4 Back

    81   Q 200 Back

    82   ibid Back

    83   Q 201 Back

    84   Qq 45-48 Back


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