Metropolitan Police 2

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Metropolitan Police 2

  1. 1. -1- &0/ ENF0201053 Information CommissionerJa Office Promoting public access to official information and protecting your personal information Merilyne Davies Head of the Public Access Office Metropolian Police Service Directorate of Information 20th Floor, West Wing Empress State Building Lillie Road London SW61TR ** August 2008 Our Case Reference Number: ENF0201053 Dear Freedom of Information Act 2000 you for your letter dated the 10 Thank acknowledging the positive ton¡i¡m~~i'his the MPS' willingness to assist Q~Uh!~~ntl;ering within the authority. 'I!:: ¡n¡UIIII,.I.!.I.!..'.,.'t.; quot;, iTq :'.' :,f;;;f'i... .~;!:iTquot; .,1At0~'i:!' quot;-'f~~~';::;!;lt;;quot; In terms of addressiO~i!~a~mj~f the p~li!n¡tftn~¡'yoûr¡cg~respondence, we have retained the headi;i;9t;,quot;ùsedliiinthe MR~:Wètter of the 10 July for your ease of reference. rt:? (a) inforniation'f(m~qfisildéråt~()~;,,:; ,1::;.1;;':1 :1 ~ iquot; quot;. . t -) '. Size .o~itH~~rg~m~atio~ Hlulh quot;,3,quot;')quot;quot;; S;:lquot;,t¡¡ 'njU~;~~:;, ' -quot;t~ni~&~, quot; quot;.ttUH1J+ The ih~~r!ration proviä~~. in rè'~pect of the 8,pale of the MPS' operation is very helpfui,'åi~~!;provides s~fue useful confext to the challenges the authority faces. In på~i~~iar, th~i~f;eer number of staff employed (understood to be in excess of 50,O~R~.,¡~mW()f whom could receive a request for information, obviously present~¡is:øme difficulties in ensuring consistently. FolA Processes and Practitioners. Given the scale of the organisation and the diversity of the operations it carries out; we can appreciate why a devolved approach to FolA has been adopted. However, we are pleased to learn that this approach is under review as in our experience; authorities in which all (or at least a significant portion of) requests are dealt with centrally will be better placed to achieve improvements in FolA compliance. Information Commissioner's Office, Wyclìffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t; 01625545700 f; 01625 524510 ~qirajl~jco.gsi.gov.uk ww.ìco.gov.uk r .'..... ' :quot;t.:~
  2. 2. - 2- &0/ ENF0201053 Information Commissioneris Office Promoting public access to official information and protecting your personal information Volume of requests Thank you for providing information on the number of requests received by the MPS. As you have pointed out, 9541 (total from January 2005 - June 2008) requests is a significant number and it is possible that the rising profile of information rights will increase this figure further. % Responses Sent We would like to request some further clarification on thE1¡preakdown of figures provided, in order to ensure that we have proPrr¡1lWunderstood the information provided so far. We ask as the percent~~rr¡¡~f response types appear to breakdown as demonstrated below, w~j~ll¡ílèflN'jes 9% of response types unaccounted for: i1¡¡W'ìH!Iquot; own ~~fs~oai data 26% - s40 applied as the request is for trft'i;;;; 25% - Information provided in full 10% - Partial disclosures 9% - Exempted in full 8% - information 7% - 6% Withdrawn ,i;jlblii¡;; Total..;91 Yo '¡;tÎii:lquot; As matter~l'~tr¡rsic to~m# section 50 complaints we receive usually form the CommissionêTilfll~!a,~i~!f&r deciding whether to pursue enforcement action, we do not ordinarii,ìia~msjåer their volume as apercentage of the total number of requests received'oy an authority. We do however recognise that the information the MPS has provided on internal reviews is encouraging as it suggests that the majority of requesters are satisfied with the initial response received. In terms of gauging the MPS' performance in this respect against other authorities, we do not routinely collect information of this type, although we wil invariably be provided with some indicative figures as part of our monitoring activities. The most comprehensive information on the number of internal reviews I section 50 complaints submitted in relation to the Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow. Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: maílêico.gsi.gov,uk www.ico.gov.uk
  3. 3. - 3- &0/ ENF0201053 Information Commissioner's Office Promoting public access to official information and protecting your personal information percentage of requests received is proauced by the Ministry of Justice as part of their quarterly and annual reports qrlFQI within central government. The report for 2007 can be accessed on ifne af http://ww. justice .gov. uk/docs/foi-report -2007 -final-web. pdf Although the Department's highlighted in the report are not directly comparable to the MPS in terms of size, scope, or the nature of their responsibilities, we have reproduced some examples (fo,9¡~sing on those with higher request numbers) of the number of internal revitJl'rfisH section 50 complaints submitted in relation to the total number;~~¡(equests overleaf. We hope these will be helpful to the MPS. ,,¡fiiiiHU received. . t ~ ~ t if- t NB: Figures in brackets express a percenta,~~I~fthe num'ß~Hi¡gt requests Cabinet Office 27 (4%) 18 (1%) 26 (2%) 41 (3%) Department of 18 (1%) 54 (4%) Health 1,154 HM Revenue and 10 (1%) 39 (3%) Customs 0(0%) 5,405 16 (~ 1 %) National Archives Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625545700 f: 01625 524510 e: mailêico.gsi.gov.uk www.ico.gov.uk
  4. 4. -4- &0/ ENF0201053 Information Commissioner's Office Promoting publíc access to official information and protecting your personal information As we have touched upon earlier, we are pleased to learn that the internal review process is subject to review. Many of the authorities we have worked with, particularly those who have had Iipiited formalised FolA processes prior to our intervention, have chosen to adopt awholly centralised approach. , Whilst this works well for many public bodies, the sheer size of the operation would undoubtedly present a challenge to implementing such a system at the MPS, unless significant additional resource was allocated to the Public Access Office for this purpose. In light of this, we would ~LJggest that the MPS considers centralising as much of the request handlin~i;~~¡possible, but that primarily, it seeks to build upon the existing m?R;~!illl1 this context we refer to the existing model as retaining a centraIG~n~I~~I~~IA practitioners to lead on request and review handling, whilst drft~il~g upd~I~~Pport from relevant staff in the Borough Operational CQ,immrand Unitsäijp)¡quot;the Operational Command Uni'ts. ;wiitquot; 'qlS~L .~ f ¡; .~ ,t ti quot;; quot;'- Letter Response ¡;ili;'1;t, (2) are the MPS has resourced FolA We within the by the authority's commitment to which may arise. ntH quot;J' ';,,;:/; r,'. (3)j¡il¡¡¡¡:i'quot; quot;quot;f.' (3.1Ha) 'I:ìHh idl:jIli :i;'k:tquot; We re~Ó~I~¡~~ that ther~lume of requests received by the MPS makes it difficult tod~ffrr¡k each,j~f!~hem individually before they are issued (with the exception of tlfg~~,t~~~'fi from the dip sampling). However, in light of the MPS' comments on reT4~~I;inotices issued by BOCU officers who have yet to gain sufficient experierìC:é in FoIA, if capacity allows we would like to suggest that draft responses from these officers are referred to the PAO for comment before they are issued. In respect of the Q&A measures, we consider the inclusion of this within the existing procedures to be a very positive development and very much hope that the Senior Management Team review will find in favour of adopting such an approach. Moving on to the application of exemptio~s, we would always expect an authority to consider the substance of the information requested before applying an exemption, but experience tells us that this is not always Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: maiicgico.gsi.gov.uk ww.ico.gov.uk
  5. 5. - 5- &0/ ENF0201053 Informa'tion Commissioner's Office Promoting public access to official ínformatìon and protecting your personal information happening, as the recent practice recommendation issued to the Department of Health demonstrates. It is therefore reassuring to note that, with the exception of National Security cases, the MPS ensures that the actual information requested is considered before applying a section 17 (4) exemption. We are also encouraged by the MPS' commitment to challenge the 'need to know' culture, and we recognise that this is something that wil not be accomplished overnight. If there, is anything the Good Practice arm of the Good Practice and Enforcement Têam can do to assist the MPS in this challenge, we would be pleased to offer ouf support. ! ,N;;,:¡t;;'i We have been interested to learn that the PAO do~~!~Wi¡~lwayS have access to information covered by the National Security ~nmi¡p~ì~iain order to conduct reviews or appeals. Clearly, this would have ~d9e'~rìh1entå'l'¡il~1Pact upon the MPS' capacity to carry out reviews and app,n~,~¡effectively:¡a~~would frustrate the authority's ability to demonsw~~eiconformity with~~~iprovisions of the section 45 Code of Practice. Whilst¡w~iåre enco~raged by tneì¡~n~ent increase in the PAO's ability to access td¡~litf info~m~tion, we renìäi~' concerned that decisions may be taken wit~~Htl¡1~I¡i~'ccess to the corresponding information. As 'Yr~¡Mnderstand¡tquot;~~tthiS will be an area of great sensitivity, we wish to discuss t~i~i~it~hthe MPS¡¡r~lli;ore detaiL. Thank you for CO~ñ~ig~::m~n~ei:;~~w~¡l:~:~kl~g, approach is no longer in use. Thank YÇ?,l¡'¡ålso for ya~~ clarificå:~i~n on why this approach was un e a en in e~ft~~..' im¡ f 1:;' d rt k . th'i.t_ :1 1 t~¡ :¡j ¡''It Yquot; f Lt J f n,:'~'i:;:¡;¡' In res~l1ff~i~tl~~~IOOPSq¡*quot;~r dated thtl¡~9 J,~ne2007, having spoken to Car9l~~¡IHowes,Nl~;ß ha~í~~~ponsibility for investigating the case) I am advi~*~.that we do!Hi¡~tirOld;¡~IRepy of correspondence dated 19 June 2007. CarolY~IUfls however'i~hplained:¡that we do hold correspondence dated the 20 June 20Ø¡lll¡put that thi~l~oes not appear to require a response. Would it be possible f¿p~nrr MPS te!~Upply a copy of the letter dated 19 June 2007 so we are able to dl~Qkthi§'l~g;ainst the information in our case management system? ':';;111/1P; In terms of a more general update on the status of the~ase, I am advised that a Decision Notice has been drafted and is with the signatory awaiting sign off. In view of the age of the case, Carolyn has requested that the signatory prioritises the case and we very much hope that we will be in a position to issue the Notice shortly. Thank you for your comments on the response issued to We recognise that 'question and answer'style requests can present some ,l~ seek recorded information and often challenges, as they do not necessarily Information Commissioner's Office. Wycliffe House, Water Lane, Wìlmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: maili§ico.gsì.gov.uk ww.ico.gov.uk
  6. 6. - 6- &0/ ENF0201053 Informa'tian CommiesionerJs Office Promoting public access to official information and pr-otecting your personal Information attempt to elicit thoughts and opinions. We are however pleased to see that the MPS recognises that the exemptions quoted in this case should have been expanded upon. We are encouraged to learn that a reminder note will be issued to practitioners in respect of the application of sections 30 ClOd 31 in tandem. ,¡ilíiiiiii::::' Thank you for explaining the reasons why::: .ê~t¡)tst was not handled appropriately. We are pleased to nfl~~ithat a remii1ll;ffr:;Jill be issued to staff which will advise how requests mM;~tib'ê handled by thel~~ganisation. -';;; t t: i ~ ¡fiji' , ¡: l' _~ :¡ ~. ): ::. _'i;;r I: i ~- 1. We are grateful for the G!ani;f.ication on;t~~H~sue of letter templates f ;: ~, riquot; ~p We recognise that the duty to confirm or deny can present some unique challenges to authorities holding sensitive data, particularly if that data relates to matters of national security or similar. Information Commissioner's Office, WycliffedHouse, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 è: maí~~ico.gsi.gov.uk ww.ico.gov.uk
  7. 7. -7 - &0/ ENF0201053 ~:,- Information CommisalonerJe Office Promoting public access to official information and pr-oteeting your personal information This is something that we would like to discuss in person, but in the meantime the decision of the Information Tribunal in the case of Baker v the Information Commissioner and the Cabinet Office (£Al2006/0045) may be helpful in this regard, a copy of which is enclosed for your convenience. Thank you for your comments of th~case, which I will ensure are added to the relevant case files (as with the other informc¡,tion relating to open cases). As the case is yet to be investigated proper, quot;:m!fl~' not wish to prematurely indicate whether or not the MPS was ~Rn~W.(t to neither confirm nor deny whether the information was held. Hoquot;quot;~~~rhtl~;fecognise that it would be helpful to explain why this refusal fihciude¿h~,s!;~n example in our last letter to you. Essentially, this was an of a re~U~~J which caused us concern as it invoked numerous with very Iittieiertplanation as to why they applied. Peek (3.1)(b) Our previous letter to the MPS !~#Me¡¡n~t~rence decision of the Information Tribunal in Bowbrickq~I'Ndltitii.~Ú~~ . This reference was included in order tR¡~~plain thatii~he f~~t!~~flt1~~ is introduced after the initial refus~Il~~e~m!~t in itš~lt,~i~~ntitléé;~lauthority from relying upon it. However/¡'M~¡went ~~¡to exp1aini'that the Commissioner would inevitably find tlW~¡the authori~~ had bre;~flhed the requirements of section 17 by failing to inforrllt¡~,r aPPli~~¡n;t1Rithe e~~rnption it sought to rely on within the approp~i,c¡te time~mc¡t~!li¡¡;'¡i:;h!n¡L . '. ¡¡iUIUIlIUUllIlli¡ P¡lll!!!: I;'l¡;'. MOf~¡~~4Jent TrilJlí~¡'i~;:dedi~i¡~~s (specifically King v Information Commissioner & tf~lr:epartment fdi¡iWork''a1td Pensions (2008) and Mclntyre v Information comWJ~~~~oner & MinJ~l~ of iJlJj¡mce (2008)) have resulted in further c1arificafi~~¡Rn the issu;~ipf refusal notices (section 17) and internal reviews. As there i~rå¡I~Hmber ~nWeveloping policy lines in this respect we would like to discuss thesetis:sLle,sdi,i;íperson. 't In the meantime arid in response to your request for clarification on the ICO's I final guidance on how PA's should be condUcting reviews and appeals, I can I confirm that we expect reviews to be carried out in accordance with the ¡ section 45 Code of Practice. In terms of the confusion arising from the advice provided by members of the Commissioner's staff appearing on public platforms, I can only apologise if i Available at http://ww. informationtribu nal. gov. u k/Documents/decisions/Dr%20 P%20Bowbrick%20v%201 nformation%20Comm issioner%20and%20Nottingham%20C ity%20Council%20(28%20Septe mber%202007)v7307. pdf Information Commissioner's Office, Wyclìffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: maillêico.gsì.gov.uk www.ico.gov.uk
  8. 8. - 8- &0/ ENF0201053 Informa'tion Commissioner's Office Promoting public access to official information and protecting your personal information this has been the case. I have ensured that Gerrard Tracey, the Assistant Commissioner for FOI Good Practice and Enforcement, is aware of the MPS' concerns in this respect. Consideration of Current Guidance and Case Law Against Old Cases We are grateful to you for taking this opportunity to raise the MPS' concerns on the application of current case law and guidance when considering relatively early requests. Regrettably, this is due in part '~c,'he backlog of FOI cases. As cases await allocation, case law and in pa~iff~t~r, Tribunal cases progress, resulting in new lines to take on the interRc~~~~ti'on of the Act. It is unfortunate that this can have the effect of consi9m~ijìg:i~Rauthority's response in the context of case law which wa~in~~iavaiiå~i~c¡to them at the time the request was made and we very mu(~~lregret that tf;¡ft¡,~as had a demoralising effect upon practitioners atJ~~ifPS. Where pOS$!,~!~, we do try to reflect the status of the CommissiOn~ri~!cguidanc~nft the time ofi~~e request and you may wish to view the Decision N1'~tjFe issLlteijiin case FS5011¡47679 for an example of this: '. . '.. http://ww. ico.gov. Uk/upload/ci8ÜWilents/d~ci~¡~~~otices/2008/fS 50147679 .p df ,,,cquot;Huu,, quot;quot;'quot;~ ., ..C,'k ,!;,t;quot;t1th, ¡'Hil,. quot;HP quot;'qfffH~.~.;~.,¡;~.'._:;: yquot;- Page 6 of this Deci~ìßm~li~i: exp;¡~lh~¡ni~~~MII~I~'~uthori did not conduct an internfHpeview wj~m,in the'ti~~frame stipulated by the Commissioner i~!lf9ood Pra5tt~e GUid~ijffe No 5' published in February 2007, that the delay occi¡ri¡ed befll¡q~itJ;lepublicÇltjpn of this guidance on the matter. ? ¡, :j' ì i:j l' ; J:; :( 'j .~, John-Pierre Lamb - FOI Enforcement MÇlmager Jo Stones - FOI Enforcement Officer Jo Pedder - Team Leader, Education Police and Justice If the meeting is to be held here in Wilmslów, we will also endeavour to introduce to the complaints officers handling MPS cases and to other member of the FOI Enforcement and Good Practice Team as appropriate. We would be grateful if you could indicate your preferences for the location and probable date of the meeting. We will then ensure that the necessary arrangements are Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mailêico.gsLgov.uk www.ico.gov.uk
  9. 9. - 9- &0/ ENF0201053 Information Cammissioner*s Office Promoting public access to official information and protecting your personal information made. A draft agenda is provided at annexe one. Please feel free to suggest further items as required. We would also be grateful if the MPS could p'rovide clarification on the breakdown of % of responses, as requested in page two of this letter (in advance of the meeting). In closing, we would like to reiterate our thanks for the has responded to our concerns so far. We very much with you and your colleagues to resolve our practice. If you should have any questions, please me. Yours sincerely Jo Stones (FOI) Enforcement Officer Good Practice and Enclosures the Cabinet Offce (1Al2006/0045) Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: maílêico.gsì.gov.uk ww.ico.gov.uk
  10. 10. - 10- &0/ ENF0201053 Informa1;ion Commissioner's Office Promoting public access to official information and protecting your personal information Annexe one Draft Agenda 1. Introductions 2. Outline of the Enforcement Strategy / Enforcement Team's role 3. Reasons for the Information Commissioner's intervention: limited or generic (a) Explanation of the application of course of the (b) Additional exemptions section 50 investigations (c) The timescale for review (d) 4. (b) 5. 6. Reviews (recent Tribunal Decisions) r-t Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mailêico.gsì.gov.uk ww.ico.gov.uk
  11. 11. &0/ ENF0201053 Informat:ion CommisaianerJs Office Promoting public access to official information and protecting your personal information Merilyne Davies Head of the Public Access Office Metropolitan Police Service Directorate of Information 20th Floor, West Wing Empress State Building Lillie Road London SW61TR 12 August 2008 Our Case Reference Number: ENF0201053 Dear Freedom of Information Act 2000 (FoIA): Audit of Complaints Thank you for your letter dated the 10 July 2008. We would like to start by acknowledging the positive tone of this response. We are very encouraged by the MPS' willingness to assist us in furthering our understanding of FolA within the authority. In terms of addressing each of the points in your correspondence, we have retained the headings used in the MPS' letter of the 10 July for your ease of reference. (a) Information for consideration Size of the organisation The information provided in respect of the scale of the MPS' operation is very helpful, and provides some useful context to the challenges the authority faces. In particular, the sheer number of staff employed (understood to be, in excess of 50,000), any of whom could receive a request for information, obviously presents some difficulties in ensuring consistency. FolA Processes and Practitioners. Given the scale of the organisation and the diversity of the operations it carries out; we can appreciate why a devolved approach to FolA has been adopted. However, we are pleased to learn that this approach is under review as in our experience; authorities in which all (or at least a significant portion of) requests are dealt with centrally will be better placed to achieve improvements in FolA compliance. Information Commissioner's Office, Wycliffe House,.yVater Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mailêico.gsí.gpv.uk www.ico.gov.uk
  12. 12. - 2- &0/ ENF0201053 Information CommissionerJa Office Promoting publíc access to official information and pl'oteeting your personal information Volume of requests Thank you for providing information on the number of requests received by the MPS. As you;¡ have pointed out, 9541 (total from January 2005 - June 2008) requests is a significant' number and it is possible that the rising profile of information rights will increase this figure further. % Responses Sent We would like to request some further clarification on the breakdown of figures provided, in order to ensure that we have properly understood the information provided so far. We ask as the percentage of response types appear to breakdown as demonstrated below, which leaves 9% of response types unaccounted for: 26% - s40 applied as the request is for the applicants own personal data 25% - Information provided in full 10% - Partial disclosures 9% - Exempted in full 8% - information not held 7% - information already publicly available 6% Withdrawn Total- 91% Reviews and Appeals As matters intrinsic to the section 50 complaints we receive usually form the Commissioner's basis for deciding whether to pursue enforcement action, we do not ordinarily consider their volume as a percentage onhe total number'of reqUests received by an authority. We do however recognise that the information the MPS has provided on internal reviews is encouraging as it suggests that the majority of requesters are satisfied with the initial response received. In terms of gauging the MPS' performance in this respect against other authorities, we do not routinely collect information of this type, although we wil invariably be provided with some indicative figures as part of our monitoring activities. The most comprehensive information on the number of internal reviews I section 50 complaints submitted in relation to the percentage of requests received is produced by the Ministry of Justice as part of their quarterly and annual reports on FOI within central government. The report for 2007 can be accessed on line at: Information Commissioner's Office, Wycliffe House, Water Lane, Wìlmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mail(§ico.gsi.gov.uk ww.ico.gov.uk . . .,
  13. 13. - 3- ~o/ ENF0201053 Informaeian CommiseionerJe Office Promoting public access to official information .~. and protecting your personal information http://ww . i ustice. gov. u k/docs/foi-report -2 007 ~fi na I-web. pdf quot; ); Although the Departments highlighted in the report are not directly comparable to the MPS in terms of size, scope, or the nature of their responsibilties, we have reproduced some examples (focusing on those with higher request numbers) of the number of internal reviews / section 50 complaints submitted in relation to the total number of requests overleaf. We hope these will be helpful to the MPS. NB: Figures in brackets express a percentage of the number of requests received. Cabinet Office 75 (12%) 641 27 (4%) Department for 1,878 18 (1%) Transport Department for 26 (2%) Work and Pensions 1,259 41 (3%) Department of 1,286 18 (1%) 54 (4%) Health HM Revenue and 1,154 10 (1%) 39 (3%) Customs National Archives 5,405 0(0%) 16 (:: 1 %) As we have touched upon earlier, we are pleased to learn that the internal review process is worked with, particularly those who have subject to review. Many of the authorities we have had limited formalised FolA processes prior to our intervention, have chosen to adopt a wholly centralised approach. Whilst this works well for many public bodies, the sheer size of the operation would undoubtedly present a challenge to implementing such a system at the MPS, unless significant additional resource was allocated to the Public Access Office for this purpose. In Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mailt£ico.gsi.gov.uk ww.ico.gov.uk
  14. 14. -4 - &0/ ENF0201053 Infarmat:ion CammisBionerJs Office Promoting public access to official information and protecting vour personal information light of this, we would suggest that the MPS- Qçmsiders centralising as much of the request handling as possible, but that primarily, it seeks tQ,build upon the existing modeL. In this context we refer to the existing model as retaining a central core of FolA practitioners to lead on request and review handling, whilst drawing upon support from relevant staff in the Borough Operational Command Units and the Operational Command Units. In our experience, the key to making such a model work lies in the quality of training afforded to staff and to the creation of clear escalation procedures. This is something we would like to discuss in person, and we would like to accept your kind offer of a meeting. Letter Response (2) We are encouraged by the extent to which the MPS has resourced FolA within the organisation. We are also encouraged by the authority's commitment to tackle any individual problems which may arise. (3) (3.1) (a) We recognise that the volume of requests r~ê~iv~d by the MPS makes it difficult to check (with the exception of those taken from the each of them individually before they are issued dip sampling). However, in light of the MPS' comments on refusal notices issued by BOCU officers who have yet to gain sufficient experience in FolA, if capacity allows we would like to suggest that draft responses from these officers are referred to the PAO for comment before they are issued. In respect of the Q&A measures, we consider the inclusion of this within the existing procedures to be a very positive development and very much hope that the Senior Management Team review will find in favour of adopting such an approach. Moving on to the application of exemptions, we would always expect an authority to consider the substance of the information requested before applying an exemption, but experience tells us that this is not always happening, as the recent practice recommendation issued to the Department of Health demonstrates. It is therefore reassuring to note that, with the exception of National Security cases, the MPS ensures that the actual information requested is considered before applying an exemption. We are also encouraged by the MPS' commitment to challenge the 'need to know' culture, and we recognise that this is something that will not be accomplished overnight. If there is anything the Good Practice arm of the Good Practice and Enforcement Team can dquot;Oito as.sist the MPS in this challenge, we would be pleased to offer our support. ¡'::, We have been interested to learn that the PAO does not always have access to information covered by the National Security exemption in order to conduct reviews or appeals. Clearly, this would have a detrimental impact upon the MPS' capacity to carry out reviews and appeals effectively, and would frustrate the authority's ability to demonstrate conformity with Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mail(Çico.gsLgov.uk ww.ico.gov.uk
  15. 15. - 5- &0/ ENF0201053 Informa'tion Commissioner's Office Promoting public: access to official information and protecting your personal intormatìon the provisions of the section 45 Code of Practice. Whilst we are encouraged by the recent increase in the PAO's ability to access to this information, we remain concerned that decisions may be taken without full access to the corresponding information. As we understand that this will be an area of great sensitivity, we wish to discuss this with the MPS in more detaiL. ., Thank you for confirming that the 'form of undertaking' approach is no longer in use. Thank you also for your clarification on why this approach was undertaken in the ase. In respect of the MPS' letter dated the 19 June 2007, having spoken to Carolyn Howes, (who has responsibility for investigating the case) i am advised that we do not hold a copy of correspondence dated 19 June 2007. Carolyn has however explained that we do hold correspondence dated the 20 June 2007, but that this does not appear to require a response. Would it be possible for the MPS to supply a copy of the letter dated 19 June 2007 so we are able to check this against the information in our case management system? In terms of a more general update on the status of the case, i am advised that a Decision Notice has been drafted and is with the signatory awaiting sign off. In view of the age of the case, Carolyn has requested that the signatory prioritises the case and we very much hope that we will be in a position to issue the Notice shortly. Thank you for your comments on the response issued to We recognise that 'question and answer' style requests can present some challenges, as they do not necessarily seek recorded information and often attempt to elicit thoughts and opinions. We are however pleased to see that the MPS recognises that the exemptions quoted inthis case should have been expanded upon. The MPS may find the recent Information Tribunai decision in the case of Fowler v The Information Commissioner and Brighton and Hove Council helpful in this regard. This can be viewed at: http://ww. informationtribu nal. gov. uk/Documents/decisions/fowlerWebDecision. pdf We are encouraged to learn that a reminder note will be issued to practitioners in respect of the application of sections 30 and 31 in tandem. ia Thank you for explaining the reasons why , request was not handled appropriately. We are pleased to note that a remiMder will be issued to staff which will advise Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mail(§ico,gsi.gov,uk www.ico,gov.uk
  16. 16. - 6- &0/ ENF0201053 Information CommiseionerJa Office Promoting public access to official information and protecting your personal information how requests must be handled by the organisation. Turning to your answers to the separate questions (1-4): 1. We are grateful for the clarification on the issue of letter templates 2. In respect of the training options offered to IM and DM's (specifically ACPO Decision Maker Training and ISEB training), we wonder whether there is scope to make this compulsory, particularly in respect of.the ACPO Decision Maker Training? Again, this is something we would be happy to discuss' in person so we are able to fully understand the implications of such an approach 3. We are encouraged to learn that dip sampling is conducted by the PAO and would be interested to learn what percentage of correspondence is routinely checked in this way, and of those the percentage of responses which the PAO considers to be unsatisfactory or similar. As above, we could discuss this in person if it would be more appropriate The Duty to Confirm or Deny We are grateful for the clarification provided on the MPS' approach to neither confirm nor deny cases. We would not expect the MPS to search through previous requests in order to ascertain beyond doubt whether there had been any incidences of information being erroneously provided, and are satisfied with the explanations already provided. We recognise that the duty to confirm or denycan'present some unique challenges to authorities holding sensitive data, particulari~ïifthptdata relates to matters of national security or similar. . .; This is something that we would like to discuss in person, but in the meantime the decision of the Information Tribunal in the case of Baker v the Information Commissioner and the Cabinet Office (lAl2006/0045) may be helpful in this regard, a copy of which is enclosed for your convenience. Thank you for yoù'r comments of the 7 & case, which I will ensure are added to the relevant case files (as with the other information relating to open cases). As the case is yet to be investigated fully, we do not wish to prematurely indicate whether or not the MPS was correct to neither confirm nor deny whether the information was held. However, we recognise that it would be helpful to explain why this refusal was included as an example in our last letter to you. Essentially, this was an illustration of a refusal which caused us concern as it invoked numerous exemptions with very little explanation as to why they applied. Information Commissioner's Office, Wycliffe Housg, Wat1ir Lane, Wilmslow, Cheshire, SK8 5AF t: 01625 545700 f: 01625 524510 e: maìll§ico.gsi.gov.uk ww.ico.gov.uk
  17. 17. -7 - &0/ . 'b~-. ENF0201053 Information Commissioner's Office Promoting public access to official information end pi~oteetjng your personal information (3.1)(b) Our previous letter to the MPS made reference to the decision of the Information Tribunal in 80wbrick v Nottngham City Council. This reference was included in order to explain that the fact that an exemption is introduced after the initial refusal does not in itself disentitle an authority from relying upon it. However, we went on to explain that the Commissioner would inevitably find that the authority had breached the requirements of section 17 by failing to inform the applicant of the exemption it sought to rely on within the appropriate timescale. More recent Tribunal decisions (specifically King v Information Commissioner & the Department for Work and Pensions (2008) and Mclntyre v Information Commissioner & Ministry of Defence (2008)) have resulted in further clarification on the issue of refusal notices (section 17) and internal reviews. As there are a number of developing policy lines in in person. this respect we would like to discuss these issues ¡ In the meantime and in response to your requestTor clarification on the ICO's final guidance on how PA's should be conducting reviews and appeals, I can confirm that we expect reviews to be carried out in accordance with the section 45 Code of Practice. In terms of the confusion arising from the advice provided by members of the Commissioner's staff appearing on public platforms, I can only apologise if this has been the case. I have ensured that Gerrard Tracey, the Assistant Commissioner for FOI Good Practice and Enforcement, is aware of the MPS' concerns in this respect. Consideration of Current Guidance and Case Law Against Old Cases We are grateful to you for taking this opportunity to raise the MPS' concerns on the application of current case law and guidance when considering relatively early requests. Regrettably, this is due in part to the backlog of FOI cases. As cases await allocation, case law and in particular, Tribunal cases progress, resulting in new lines to take on the interpretation of the Act. It is unfortunate that this can have the effect of considering an authority's response in the context of case law whi.ch was not available to them at the time this has had a demoralising effect upon the request was made and we very much regret that practitioners at the MPS. Where possible, we do ti to highlight new approaches resulting from Tribunal decisions and similar during investigations. We also try to reflect the status of the Commissioner's guidance at the time of the request in our Decision Notices and you may wish to view the Decision Notice issued in case FS50147679 for an example of this: http://ww. ico. gov. uk/upload/documents/decisionnotices/2008/fs 50147679. pdf not conduct an internElI . Page 6 of this Decision Notice explains that whilst the authority did review within the timeframe stipulated by the Commissioner in 'Good Practice Guidance No 5' published in February 2007, that the delay occurred before the publication of this guidance 1 Available at http://ww . informationtribu nal. gov. u k/Documents/decisions/Dr%20P%2 0 Bowbrick%20v%201 nformation %20Co mmissioner%20and%20Nottng ham%20City%20Council%20(28%20September%202007)v7307. pdf Information Commissioner's Office, Wyclìffe House, Water Lane, Wìlmslow, Cheshire, SK8 5AF t: 01625 545700 f: 01625 524510 e: mail(§ico.gsi.gov.uk www.ico.gov.uk quot; ~ :..-,
  18. 18. - 8- &0/ ENF0201053 on the matter. Informat;ion CommissionerJe Office ~.t:; Pròmoting public access to official information and protecting your personal ínformation Meeting We would be pleased to invite you and your colleagues to our offices to discuss the issues raised in our correspondence to date. Alternatively, we would be pleased to visit the MPS' offices, particularly if this could be combined with any meetings / exchange of information which would progress current cases. We would like to suggest that the following ICO staff members attend such a meeting: John-Pierre Lamb - FOI Enforcement Manager Jo Stones - FOI Enforcement Officer Jo Pedder - Team Leader, Education Police and Justice If the meeting is to be held here in Wilmslow, we will also endeavour to introduce the complaints officers handling MPS cases and to other member of the FOI Enforcement and Good Practice Team as appropriate. We would be grateful if you could indicate your preferences for the location and probable date of the meeting. We will then ensure that the necessary arrangements are made. A draft agenda is provided at annexe one. Please feel free to suggest further items as required. . We would also be grateful if the MPS could provide clarification on the breakdown of % of responses, as requested in page two of this letter (in advance of the meeting). In closing, we would like to reiterate our thanks for the positive way the MPS has responded to our concerns so far. We very much look forward to working with you and your colleagues to resolve our concerns, and promote good practice. If you should have any questions, please do not hesitate to contact me. Yours sincerely Jo Stones (FOI) Enforcement Officer Good Practice and Enforcement Enclosures Baker v the Information Commissioner and the Cabinet Offce (£A/2006/0045) Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mailC?ico.gsi.gov.uk ww.ico.gov.uk
  19. 19. - 9- &0/ ENF0201053 Information Commissioner's Office Promoting public access to official information and pr'oteeting your personal information Annexe one Draft Agenda 1. Introductions 2. Outline of the Enforcement Strategy I Enforcement Team's role 3. Reasons for the Information Commissioner's intervention: (a) Explanation of the application of exemptions limited or generic (b) Additional exemptions introduced during the course of the section 50 investigations (c) The timescale for internal reviews (d) The reconsideration of issues at internal review 4. Centralisation of request handling, toinGlude: (a) Training of staff (b) Escalation points 5. DIP sampling 6. Access to sensitive information (national security) 7. The duty to confirm or deny 8. Refusal Notices and Internal Reviews (recent Tribunal Decisions) Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF t: 01625 545700 f: 01625 524510 e: mailêico.gsi.gov.uk www.ico.gov.uk
  20. 20. File Note - ENF0201053 New Case - 213444 Request dated - 25_07 _08 Refusal- undated IR request - undated IR result - undated. IR outcome (does not conform to Part Vi of the s45 Code): Dea~ has been forwarded to the Sex offender Unit who Thank you for your email below. This will deaL. As you have requested for a review, this email is not been treated as a fresh request. I will communicate with you as soon as I have a response back from the unit dealing. Many Thanks, Abbey Adeboye TPHQ Information Manager. Dearquot; I have today receive a response back from Operation Jigsaw team and they still maintained their previous decision as shown beiow: 'We do not disclose data to borough leveL. So the answer stil remains the same. As for the SOPs, no we don't have to disclose that either. So we have re-considered and the answer is stìl no.quot; Many Thanks, Abbey Adeboye TPHQ Information Manager. ,.h
  21. 21. Agenda - ICO I MPS meeting 6 November 2008 Wycliffe House, Wilmslow :t~'quot; Attendees: ICO - John-Pierre Lamb (Enforcement Manager), Jo Stones (Enforcement Officer), Carolyn Howes (Senior Complaints Officer), Ben Tomes (Senior Complaints Officer) MPS - Merilyne Davies (Head of Public Access Office), Bob Farley (Head of Information Compliance), Steve Farquharson (Group Director of Information Management) 1. Introductions 2. Outline of the Enforcement Strategy / Enforcement Team's role 3. Reasons for the Information Commissioner's intervention: a. Explanation of the application of exemptions limited or generic b. The duty to confirm or deny c. Additional exemptions introduced during the course of the section 50 investigations d. Timescale for internal reviews quot; internal review e. Reconsideration of issues at 4. Centralisation of request handling, to include: a. Training of staff b. Escalation points c. DIP sampling 5. Access to sensitive information (including national security) (f 6. Refusal Notices and Internal Reviews 7. 'What do they know' examples 8. Transfer of requests (section 45 Code of Practice) if
  22. 22. u 9. Information held (ascertaining the extent of before a refusal notice is issued) 10. Section 44 (1) and the Human Rights Act 11. ieo's expectations in respect of information provision during the course of investigation
  23. 23. Date: 6 November 2008 Metropolitan Police Service (MPS) Public Authority: Location: Wycliffe House, Wilmslow Attendees John-Pierre Lamb (Enforcement Manager) JPL, Jo Stones JS (Enforcement Officer), Carolyn Howes (Senior ICO: Complaints Officer) CH, Ben Tomes (Senior Complaints Officer) BT of Public Access Office) MD, Bob Other organisation: Merilyne Davies (Head Farley (Head of Information Compliance) BF, Steve Farquharson (Group Oirector of Information Management) SF Reason for meeting: Enforcement meeting concerning compliance with the Freedom of Information Act and conformity with the section 45 Code of Practice. Contribution to Monitoring of public authorities' performance in relation to business plan: FOIA and EIR Structured intervention e.g. advice, assessments, special reports 4 persons (2 from GPE + 2 from FOI Operations) x 4 hours KPI information Associated file CMEH: ENF0201053 number -n SF provided background to MPS' approach to FOI. He explained that information management as a whole had many varied, competing demands above and beyond FOI. In addition to the core FOI practitioners within information mana ement, there are between 70 and 80 staff members who
  24. 24. have responsibilities linked to FOIA across the authority. The information management team are tasked, amongst other things, with managing the tensions between information sharing, FOI and Data Protection. In addition to satisfying the requirements of FOI IDP, tne reliability of data is clearly important for operational reasons such as statisfical reporting. It was acknowledged that any police force has its roots within confidentiality and that many traditionally operate from a 'need to know' basis. Recognition of the need for change is there but it may take time for the new culture to embed. The MPS is committed to tackling this issue. SF explained that compliance with section 10 is around 80% on average. JPL noted that this figure was similar to the rate of compliance within central government bodies of comparable size. Further information can be found on the Ministry of Justice's (MoJ's) website at: http://ww.justice.gov.uk/publications/freedomofinformationquarterly.htm SF explained that the MPS wants to achieve 100% compliance in respect of section 10, but there was recognition that this may not always be possible. Adherence to the time for compliance is a corporate performance measure which is reported to the senior management of the,¡MPS on a quarterly basis. It i' was also explained that FOI generally has visibility'at board leveL. Getting recognition of FOI at board level and making it a 60rpprate priority is seen as a real achievement for information management staff, and is welcomed by the ICO. All parties agreed that the MPS and the ICO could build a positive relationship, and the ICO will provide advice and support as appropriate. JS - Contact from the Good Practice arm of the team to be The ICO also agreed to attend FOI seminars or similar within the MPS to provide advice. provided to the MPS. The ICO also agreed to inform the MPS of any trends or patterns in non- JS - review of MPS compliance / conformity emerging. cases to be carried out at the end of the current financial year. Results to be A general discussion on the following topics followed: communicated to application of limited or generic exemptions'j MPS MD explained that this was largely a historic issue,altQ:Øugh CH pointed to CH- List of unallocated cases to some examples from 2007 / 08. BT explained that exemptions should only be applied to the actual information in question in order to avoid reliance on be provided to MD in general principles. JS added that in order to help avoid Decision Notices which order that the relevant paper work for each ... find against the authority on a procedural basis, they should ensure that full section numbers, including the sub-sections are cited iìi refusals and internal can be collated review responses. This is particularly important when relying upon part of section 30 or 31. CH explained that it would also be helpful if full section numbers were quoted when corresponding with the ICO during investigations. hc' o I ~ .,.
  25. 25. JPL added that quoting full section numbers should help the MPS to distil the reasons for non-disclosure more clearly. - the duty to confirm or deny It was recognised that NCND cases present some unique challenges. JS explained that the MPS was not alone in finding this difficult, but that care needed to be taken to ensure that NCND refusals were only issued where it is appropriate to do so. investigations quot; c'..¡ - exemptions introduced during the course of :theaection 50 It is accepted that information is fluid and that circumstances may change qt during the course of investigation. However, as JS explained, the ICO would have concerns if the introduction of exemptions during the course of investigation suggested that the refusal or the internal review had not been dealt with correctly. MD noted that there are numerous examples of the Public Access Office (PAO) overturning decisions at review stage, which helps to demonstrate that reviews are being handled thoroughly. - timescale for internal reviews The text used in some MPS refusal notices reads as follows: 'In all possible circumstances the MPS wil aim to respond to your complaint MPS - to approach within three months'. ACPO with regard to . , t internal review reviews which states that the timescales. If This conflicts with the ICO's guidance on internal Commissioner expects reviews to be conducted in20 working days, or 40 in appropriate, or if the be. exceptional cases. MD explained that the 3 months citè'din MPS refusals ' approach should ice originates from ACPO guidance. Discussion on how besrto approach this unsuccessful, the, issue then followed, with SF explaining that he thought it unlikely that ACPO (JPL) may appro~:ch ,i I; would change its existing guidance in this regard. Following the discussion, it ACPO direct. Action vv.as decided that the MPS would purse the matter with ACPO direct - the ICO no longer required. may approach ACPO separately about this issue. ICO - Review of JPL explained what may happen if delays with internal reviews occur. cases at the end of Essentially, an authority which repeatedly fails to adhere to the the financial year ,(JS) Commissioner's guidance (and by virtue of this the section 45 Code of will consider internal Practice), will receive a practice recommendation. The ICO has recently review delays as issued a recommendation to a central government department on this basis appropriate. and this can be viewed at: http://www . ico.gov. uk/upload/documents library/freedom of information/notices/dclg pr 03 11 08.pdf UPDATE - MD explained in a phone-call to JS on thç 7 November 08 that the latest ACPO guidance appears to have beeii.amEmded to reflect the ICO's guidance. The MPS has amended its approaC¡J~accordingly.
  26. 26. ';,i. - reconsideration of issues at internal review Please see comments made under '- exemptions introduced during the course of the section 50 investigations' above. In addition, MD explained that a Review Officer has been appointed recently and that work on a review begins on the day it is received. The ieo felt that there is some room for improvement with the content and scope of reviews and understands that the MPS will be looking into this. - Centralisation of request handling ;, . a. Training of staff MD explained that geographical diversity of staff can present a problem. SF added that it can be difficult to attract employees to the relevant posts. MD went on to explain that Decision Maker training will take place next year and that internal review training was to be offered to Information Managers. In terms of more general information dissemination, Decision Notices and Information Tribunal Decisions are distilled and sent to Information Managers learning. Furthermore, Information Manger in order to support continual conferences are held on a 6 monthly basis and relevant FOI articles are placed on the staff intranet. SF recognised that there was scope for wider FOI training, with particular reference to new starters and long term staff that may not be familiar with the requirements of FOI. It was also recognised that there was scope to include FOI in induction training and to make some elements of FOI training mandatory. It was also suggested that it might be appropriate!to run intranet articles and produce posters to boost staff awareness. b. Escalation points JS explained that clear escalation points, by which staff can clearly see the point at which they are required to escalate matters (and conversely so that the PAO can see the point at which matters need to be chased) are vital to operating an effective decentralised system. MD assured the iea that these are in place and provided some examples, such as the policy team chasing overdue requests and referring the matter up as appropriate. SF explained that one potential bottleneck between the drafting of the refusal notice and sign off by the relevant officer had been identified as a result of this. c. DIP sampling MPS - to consider The MPS carry out DIP sampling of responses, and JS enquired whether it whether it would be would be possible to provide statistics on the number of responses sampled, possible to provide and the problems identified as a result to the ieo. ieo with statistics
  27. 27. - Access to sensitive information (including national security) from DIP sampling. All of the MPS representatives gave their assurance that this matter is close to being resolved. It is hoped that the appropriate security clearance will be arranged to allow the appropriate MPS staff to view information of this nature. BT and CH noted that access to sensitive information (but not necessarily that covered by sections 23 or 24) has been a problem in the past. MD and SF explained that this should no longer be an issue moving forward. - 'What do they know' examples JS introduced two examples of requests to the MPS made via the 'what do they know' website. These can be viewed at: http://ww.whatdotheyknow.com/requestlcctv footage of stolen van brixt and http://www.whatdotheyknow.com/requestlanti terror campaignsuspicious p The reputational risk of mishandling requests made via this site (and more generally) was discussed. JPL explained the problems experienced by Rother District Council in order to put the risk into context. An example of some of the associated media coverage can be found at: http://ww.bbc.co.uk/blogs/opensecrets/2008/04/rotherbother.htm I - Transfer of requests (section 45 Code of Practice) A brief discussion on the transfer of requests and the recommendations of the section 45 Code took place. As the MPS has received very few transferred requests (and has transferred only a small number on) this was not thought to present a problem at present. - Information held (ascertaining the extent of before a refusal notice is issued) SF commented that the MPS often hold information from third parties. JS queried whether this had ever presented a problem. MD reassured the ICO that should a request for information held on behalfof be received, consultation in line with the section 45 Code of Practice would be undertaken. - Section 44 (1) and the Human Rights Act CH explained that the right to privacy afforded by the Human Rights Act does provide a statutory bar in respect of section 44 (1). MD queried the basis of this approach as the MoJ appears to suggest the opposite. JS - to provide a copy of relevant A copy of the Tribunal decision which informed the ICO's approach was Information Tribunal decision. Action requested and this can be found below (EA/2006/0090 - see para 31): Completed. J.~ ,
  28. 28. http://ww.informationtribunal.gov.uk/Documents/; : decisions/mrspbluckvi nformationcomm issioner( 17 sept2007). pdf JS - to check content of DCA site in respect JS explained that much of the MoJ's website material is contained on the of advice on s44 (1). archived Department for Constitutional Affairs site and that it may be out of Action Completed - date as a result. referred to good practice. ICO's expectations in respect of information provision during the course of investigation BT explained that the ICO expects to be provided with the exempt information it requires to consider a case as a matter of course. The MPS representatives JPL - to provide asked for details of the security arrangements here at the ICO so that they are details on the ICO's able to reassure colleagues that information will be held securely. security arrangements in JPL undertook to provide a copy of the ICO's security arrangements in this respect of holding regard. These details were extracted from the ICO's FOI procedures manuaL. If information. Action an electronic copy of this extract would be helpful, it can be provided. Completed - paper copy provided to SF Any other comments: SF has, requested that a follow up meeting be heldin ,9 monthS time. JPL and JS have agreed and will GRiita~t the MPS to arrange this in due course. u;..... . .¡,,:' '
  29. 29. ENF0201053 - Metropolitan Police Service Updated audit: Complaints received between 06,November 2008 (date of last meeting) and 2 March 2009 (date of audit) .. 21 July FS5022206 - With Team 2- S 10 - unable to provide 2008 some of info requested awaiting allocation. within timescale S17 - Use of s40 not directly linked to DPA principle when communicating refusal to applicant quot;'015- 2008010005435 22 January NCND on refusaL. IR Open - awaiting 2008 explains that info is not allocation held. - Request to Chinford Police Closed FS50226781 - 25 & 17 October Station - issues unclear 2008 - 2008070007391 25 July Request for cost of Open - awaiting FS50227776 - 2008 informants - s30 & s31 allocation applied in refusal .227933- 2009010006680 12 S 10 - 44 working days to Closed November respond (no PIT extension 2008 ~ought) - 2008110005346 17 No immediate issues Closed FS50229063 - apparent November 2008
  30. 30. 2008100003763 14 October NCND response. Open - awaiting 2008 allocation IR delay - 42 working days tp respond 2008110002689 Unclear Possible s 10 delay Open - awaiting allocation IR delay - 53 working days 2008110000087 IR request of 26 Jan 2009 Open - with CST appears to be outstanding II
  31. 31. MPS INFORMATION MANAGEMENT CONFERENCE ON FOIA Presentation Brief Conference Date: 9th March 20Q9 9am -13:0Q am (Lunch from 12:30) Time: Location: Briefing Room, 5th Floor, New Scotland Yard (Nearest tube: St James's Park) Number of Delegates: Approximately 85+ Room Style: Lecture Theatre Presenter: John-Pierre Lamb -FOI Enforcement Manager: Information Commissioner's Office 09:45am -10:45 - 50 plus 10 minutes question time. Presentation Time: PowerPoint Provided? Yes Presentation Topic: FolA in the Police Sector: Common Mistakes and Mishandling The Presentation Aims: The aims and objectives of the presentation is to provide the MPS FolA Practitioner (otherwise known as Information Manager or IMs) an understanding of the incidences of poor compliance in which the ICO Enforcement Team is taking action on. The specific areas to cover, which would be of benefit to the audience, are: . The role of the ICO Enforcement Team: What does poor compliance ultimately lead to? . Public Interest Tests: What does the IÇO consider as best practice when applying PITs? (It will be useful to refer what t,hé ICOconsider to be bad examples of PITs). . Applying Exemptions: When does the application of exemptions become blanket I overused? . Common legislation application errors, which the ICO will take issue with. . How the role of the FolA Practitioner has an important part to play in terms of organisation compliance To ensure accessibility of the above topics it would be useful if the presenter refers to case examples, so that the subject is tangible. Equally, any materials, which can be later referred to by the audience members as reference guides will be very welcome. Merilyne Davies (Head of Public Access Office) For Further Information: 0207161 3554 ¡,
  32. 32. Information Commissioner's Office John-Pierre Lamb ~' . FOI Enforcement Manager MPS Information Management Seminar 09 March 2009 FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -1-
  33. 33. . iJ Statutory definition of Enforcement Part IV of the Act & Reg 18 of the EIR · Decision Notices · I nformation Notices · Enforcement Notices · Provisions for non-compliance with notices · Powers of entry and inspection Decision Notices: (section 50 (3) (b)): This details the Commissioner's findings and in cases where information has been withheld, and explains whether the authority concerned is required to provide the requested information to the applicant. A Decision Notice may also detail procedural breaches of the Act. To date, six Decision Notices have been issued to MPS and these can be found at: http://ww.ico.gov.uk/tools and resources/decision notices.aspx Information Notices: (section 51 (1)):These enable the Commissioner to acquire the information he needs to investigate a section 50 (1) complaint thoroughly. Typically, they are reserved only for those cases in which an authority will not voluntarily provide the information required. can be issued in Enforcement Notices: (section 52 (1)): These satisfied that an authority has circumstances where the Commissioner is failed to comply with any of the requirements of Part i. In reality, the issue of such a Notice is rare and is most likely to be used in the case of systemic or repeated breaches of sections 10 (time for compliance) or 17 (refusal notices). To date, only one Enforcement Notice has been issued and its intention was to resolve the issues arising from a number of similar complaints relating to disclosure of advice given by the Attorney General on the legality of military intervention in Iraq in 2003. FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -2-
  34. 34. :;,í;¡ The Notice can be viewed at: http://ww.ico.gov.uk/what we cover/freedom of information/enforcement.a spx Provisions for non-compliance with notices: All of the above Notices can be appealed to the Information Tribunal (section 57). Non-compliance with a Notice may be dealt with as contempt of court (section 54). Powers of entry and inspection: (section 55 & schedule 3) If a circuit judge is satisfied that (by information on oath supplied by the Commissioner) there are reasonable grounds for suspecting that a public authority has failed or is failng to comply with: · Part I of the Act; · a Decision Notice which requires steps to be taken; · an Information or Enforcement Notice or that an offence under section 77 has been or is being committed, ~': i, he may grant a warrant. Such a warrant wói.ld authorise the Commissioner or any of his officers to enter and search the premises, to inspect and seize documentation and to inspect, examine, test or operate any equipment on which information held by the authority may be recorded. disclosure. . NB: Section 77 is the offence of altering records with intent to prevent . FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -3-
  35. 35. Enforcement duties and powers · Section 45 - FOI (quot;Accessquot;) Code · Section 46 - Records Management Code · Section 47 - general dutyto promote good practice and observance of the Act and the Codes · Section 48 - power to issue Practice Recommendations in relation to s45 and s46 (and EIR) Codes · Section 49 - reports to Parliament . ., í~ , ,,,.,.., The section 45 Code can be viewed 'at: http://ww.dca.gov.uk/foi/reference/imprep/codepafunc.htm The section 46 Code can be viewed at: http://ww.dca.gov.uk/foi/reference/imprep/codemanrec.htm FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -4-
  36. 36. Enforcement duties. and powers · Regulation 16 - the EIR Code · Regulation 18 - Enforcement & appeal provisions of the Act The EIR Code can be viewed at: http://ww . ico .gov. uk/upload/documerits/library/environmental info reg/detail e.pdf ' ed specialist guides/environmental information regulations code of practic FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -5-
  37. 37. Enforcement milestones FOIA came into force and was · Jan 05 effective retrospectively Commissioner created good · Jul06 practice & enforcement function Enforcement Strategy published · Oct 06 First practice recommendation · Feb 07 Enforcement officer appointed · May 07 Two further appointments · May 08 Publication of Monitoring Strategy · Mar 09 t:'~ . .. FolA in the Police Sector: CommolJ mistakes and mishandling 2009 09 March -6-
  38. 38. Functions of the Enforcement Team · Promotion of good practice · Monitoring and providing guidance · Informal resolution · Practice Recommeridations · Enforcement Notices · Reports to Parliament a small percentage of the Enforcement Team's work is 'public facing' in Only as far as the majority of issues are resolved informally. Aside from information which may be published as a result of an FOI request, Practice Recommendations, Enforcement Notices and the 'Other Matters' sections of Decision Notices are considered to be ,the only publicly available documents which detail action taken by the Team.; 1: FolA in the Police Sector: Common mistakes and mishandling 09 March 2Ò09 1-.7-
  39. 39. FOI Enforcement Strategy framework · Promoting good practice - open government, maximise disclosure, benefits for citizens and public authorities · Sources - complaints, wider monitoring, including proactive · Selective approach - targeted, responsible and proportionate · Structured intervention · Regulatory intervention · Publication of activities Full details of the FOI Enforcement Strategy can be found at: http://ww . ico. gov. u k/u pload/docu ments/libra rv/freedom of i nformation/deta il ed specialist guides/enforcement strategy including moj update 30 05 07 .pdf We have also published a Practice Recommendation Policy Statement which is available at: http://ww . ¡co. gov. uk/upload/documehts/librarv/freedom of information/practi cal application/practice recommendations policy statement 10 aug 20065. QQ FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -8-
  40. 40. i-!, FOI Enforcement Strategy triggers · Systemic, repeated or serious non-compliance with the FOIA I EIR (especially delay) or the associated Codes of Practice · Evidence that obligations are being deliberately or persistently ignored or not taken sufficiently seriously · Examples or precedents need to be created · Issues need to be clarified or tested · As a means of grouping together several similar complaints against the same public authority · Failure to adopt a publicationquot;scheme · Failure to make information available in accordance with the authority's publication scheme Example: The Department for Communities and Local Government (DCLG) repeatedly failed to conduct internal reviews within an appropriate timescale. We made them aware of our concerns and asked that steps be taken to improve matters. However, the Department failed to make sufficient progress in a timely manner and a section 45 practice recommendation was issued as a result. This can be viewed at: http://ww . ico. gov. uk/upload/documents/library/freedom of information/notic es/dclg pr 03 11 08.pdf 2,( FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -9-
  41. 41. Enforcement Activity · Cases considered by enforcement 654 · Practice Recommendations s45 5 · Practice Recommendations s46 2 · Enforcement concerns raised in DNs 101 · Enforcement quot;warningquot; letters 62 · Referred to TNA for advice 13 · Report to Parliament warning letters 2 · Meetings with public authorities 19 *running total as calculated at the end of the third quarler of 2008/09. Cases considered by enforcement: This includes referrals from complaints officers, issues picked up from published Decision Notices and complaints considered as part of an audit. We also record problems we may pick up on from external sources such as the 'whatdotheknow' website,or media articles. Example: In January of this year, the Enforcement Team were made aware of an article that suggested that a Police Force were failing to respond to dozens of FOI requests within the statutory timescale. This prompted the team to carry out an audit of section 50 (1) complaints made about the authority. The audit lent credence to the articles' claim that the authority was experiencing difficulties in responding to requests in a timely manner, and uncovered a raft of other problems with the Force's approach. The Enforcement Team is currently in dialogue with the authority in the hope that these issues can be resolved informally. In terms of MPS, we audited 41 sectiQri' 50 (1) complaints, which equates to approximately two thirds of the total rlumbêr of complaints received about the authority since the Act's implementation. Practice Recommendations s45: Recommendations have been issued to the Department for Communities and Local Government (DCLG), the FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -10-
  42. 42. Department of Health (DoH), the National Offenders Management Service (NOMS), and to Liverpool and Nottingham City Councils. The recommendations can be viewed at: http://ww.ico.gov.uk/what we cover/freedom of information/enforcement.a spx Practice Recommendation s46: Following a records management assessment of the authority by The Nâlional Archives, the ICO has just served a section 46 Practice RecomlTendåtion on the Department of Health. In 2007, the Commissioner's first section 46 recommendation was issued to Nottingham City CounciL. TNA and the ICO continue to work with the Council to improve its performance in this area. Enforcement concerns raised in DNs: Predominately, this refers to examples of non-conformity with any of the Codes of Practice or to more general good practice issues arising from a case. Enforcement concerns tend to be detailed in the 'other matters' section of a Decision Notice. Example: In January of this year, a Decision Notice was issued to Northumbria Police. The 'other matters' section of this Notice described some of the Commissioner's concerns about the Force's refusal notices, specifically that the public interest arguments were not clearly linked to the exemptions claimed. In addition the Commissioner was concerned that the Force had stated that the fact that multiple exemptions had been applied constituted a valid public interest argument in favour of the maintenance of the exemptions claimed. f. ~ The Commissioner noted that this pròblemi!pppeared to be replicated in refusals issued by other Police Forces. The notice can be viewed at: http://ww . ico .gov. uk/upload/documents/decisionnotices/2009/fs 50123912. P df Enforcement 'warning' letters: These are issued in cases where the Enforcement Team has concerns about an authority's compliance with the Act or conformity with the Codes of Practice. A 'warning' letter will typically set out our concerns (supported by evidence), and advise the authority of the enforcement powers at our disposaL. In most cases we will seek to informally resolve the issues arising by asking the authority to agree to a period of active monitoring. Typically, this consists of an authority providing regular updates on what we consider to be key indicators of performance such as compliance with section 10 (1), or the time taken to conduct internal reviews. We may also ask for copies of FOI policies and procedures held by the authority, and provide advice on how these can be improved. As demonstrated by the ratio of 'warning letters' issued to the number of practice recommendations served, the overwhelming majority of cases are resolved informally. FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -11- ,
  43. 43. Referred to TNA for advice: If we have concerns about whether an authority's records management is in accordance with the section 46 Code, we may refer them to The National Archives in order that they can take advantage of the specialist advice they provide. In serious cases this may result in an assessment being undertaken by TNA and/or a Practice Recommendation by the Commissioner. Report to Parliament warning letters: Section 49 of the Act compels the Commissioner to lay an annual report on the exercise of his functions before each House of Parliament. Should he wish, this report can include details of those authorities for whom he considers compliance with the Act or conformity with the Codes to be a matter of concern. We regard this as a powerful sanction which may result in adverse'publi.Gity for the authority concerned and it is, therefore, reserved for the most serious cases of poor practice. To date, the Commissioner has advised two authorities that they would be included in such a report if their compliance / conformity did not improve. Meetings with public authorities: Where appropriate, we will meet with authorities to discuss the problems they arefacing and to provide advice on how matters can be improved. We are increasingly being asked to attend such meetings and will continue to support this approach as far as resources allow. FolA in the Police Sector: Com'mon mistakes and mishandling 09 March 2CJ09 -12-
  44. 44. , 'l:if7 MPS & the iea · 2007/08 - iea case officers notice that complaints about the MPS are beginning to form a pattern of poor practice · February 2008 - MPS are advised that the Enforcement Team have been made aware of the issues arising · May 2008 - the Enforcement Team carry MPS. .quot; out an audit of complaint,s concerning the FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -13-
  45. 45. MPS & iea Main issues with MPS compliance / conformity identified as a result of the audit are: · section 10 (delays in responding) · section 17 (poor explanation of exemptions, poor public interest arguments, use of blanket exemptions, application of additional exemptions during course of ieo's investigation) · section 45 (poor internal reviews, and delays) . section 46 (records management -protective marking) · relationship with ieo (delays in responding to letters and perceived reluctance to provide exempt information) Examples: Section 10 In case FS50106800 2007020001775), the complainant submitted a series of new requests alongside his request for internal review. In the Decision Notice accompanying this complaint, the Commissioner found that by failing to respond to these additional requests, MPS had breached the Act and section 10(1). sections 1(1)(a) and (b) of The Decision Notice is available at: http://ww. ico .gov. uk/upload/documents/decisionnotices/2008/fs 50106800. P df Section 17 .,:~~~, 2007060003631), the refusal notice In case FS50170294 contained the following text: 'I previously prepared the following generic passages, focussing on the issues you raise, that appear to be the catalyst for this request. I could explain these further if necessary but you should presume that Sections 24,30,31,38,40,44 wil inevitably apply to the 'intellgence source' issues you raise. Other Sections could also apply subject to the actual intellgence product that the request refers to'. FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -14-
  46. 46. We considered this to be far too generic, and lacking an adequate explanation of the relevance and applicability of each exemption. We were also concerned that this and similar cases, in which MPS relied upon inadequate explanations as to why exemptions applied, or contained only generic arguments to support eXßmptiçms, may leave the authority open to the suggestion that they are being appi¡êd in a 'blanket' fashion. In case FS50129227 (2007010002228,_ the refusal notice issued relied on section 30 (investigations and proceedings conducted by public authorities), section 38 (health and safety) and section 44 (prohibitions on disclosure). During the course of the Commissioner's investigations, MPS sought to rely on various additional exemptions including section 23 (information relating to enforcement), security matters), section 24 (national security), section 31 (law and section 40 (personal data). Whilst the introduction of an exemption at a later stage does not disentitle an authority from relying upon it, it is likely that we would find an authority in breach of section 17 if it is not contained in the original refusal or rectified on review. Section 45 - internal reviews The Commissioner has issued guidance inwhich his recommendations for internal review timescales are set out: http://ww . ¡co. gov. uk/upload/documents/library/freedom of information/detail ed specialist guides/foi good practice guidance 5.pdf In brief, we expect all reviews to be completed in 20 working days. In exceptional circumstances it may be appropriate to take longer, but in no case should the review take more than 40 working days. We had concerns as the text contained in refusals sent out by MPS (for example in the and__ cases FS50153447, 2006110010906 and FS50188116, 200711007281 respectively) stated the following: 'in all possible circumstances the MPS wil aim to respond to your complaint within three months' We were also concerned that MPS may not be communicating the outcome of internal reviews in a way which demonstrates that they took a fresh look at matters in accordance with paragraph 39:Öt the Code. FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -15-
  47. 47. Section 46 - records management In case FS50129227 (_ 2006020001612), the complainant noted a number of apparent contradictions in the protective markings recorded on one of the documents he had been provided with as a result of his request. He alleged that this was evidence that the public authority had deliberately withheld information which should have been disclosed to him upon request. In addition to the ongoing ICO section ,50 (~) investigation, a complaint was made to the IPCC. .... The section 46 Code (part 8, paragraph 8.6) states that: 'the record-keeping system, whether paper or electronic, should include a set of rules for referencing, titlng, indexing and if appropriate, security marking of records. These should be easily understood and should enable the efficient retrieval of information' This case demonstrates how important accuracy in this respect is and we understand that the approach has since been reviewed and updated to ensure that information is now correctively marked. Relationship with ICO Initially we were concerned that MPS were reluctant to provide the information we needed to conduct our investigations. It was explained that this was due to numerous concerns about the movelTent of sensitive data outside of MPS. , ',: ',~ We are pleased to note that this, and Jmany::of the other issues identified in this section appear to have been resolved. , ~- . :,;l,:,: FolA in the Police Sector: Common mistakes and mishandling 09 March 2009 -16-
  48. 48. Engagement with MPS · 04 June 08 - Enforcement Team write to MPS to outline concerns · 10 July 08 - follQMliAg some interim telephone contact, MPS respond. ICO encouraged by positive tone and willingness to aqdress issues highlighted · 12 August 08 - EnforcefnenfTeam agree to meet with MPS representatives · 06 Nov 08 - Meeting held - considered positive and productive by both parties. · May 09 - Follow up meeting scheduled FolA in the Police Sector: Commoi¡ mistakes and mishandling 09 March 2009 -17-

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