Freedom of Information Act (FoIA), 2000 - MPS compliance

Report: 10b
Date: 29 April 2004
By: Commissioner

Summary

This report provides an overview of the requirements of the Freedom of Information Act (FOIA) 2000 and an assessment of its impact upon the MPS. It further outlines and explains the approach being taken by the MPS to meet the challenges and exploit the opportunities arising from this legislation.

A. Recommendation

That the Authority notes

1. the anticipated impact of the FOIA upon the MPS; and
2. the MPS approach towards compliance with the FOIA and its rationale

B. Supporting information

Introduction

1. The FOIA was passed in November 2000 and is part of the modernisation agenda for public services. The Department for Constitutional Affairs (DCA) has lead responsibility for implementing the FOIA. The Information Commissioner has responsibility for monitoring and enforcing compliance by public authorities. No additional funding has been provided by central government for FOIA implementation.

2. The MPS Directorate of Information established a Freedom of Information Act Compliance (FOIAC) Project in June 2002 to assess the impact of this legislation, and plan and co-ordinate necessary preparations across business groups. Whilst the detail of the legislation has been known since November 2000, guidance on the use of exemptions and finalised Fees Regulations are not anticipated until July 2004.

3. An ACPO FOIA Project exists to develop national FOIA Policy and co-ordinate preparations across Forces. A central objective of this Project is consistency in both the proactive publication of information and the application of exemptions. The MPS is represented on the national FOIA Project Board and also has regular dialogue with staff in the Office of the Information Commissioner. Activity to prepare the MPS for the FOIA continues to be closely aligned with that being pursued nationally.

4. In developing its approach to this legislation, the MPS has made use of an external, Independent Challenge Group comprising members from the media, central and local government, and the Campaign for Freedom of Information.

5. The FOIA is acknowledged to be a complex piece of legislation. A legislative summary covering its main features is provided for Members at Appendix 1. Further briefings can be provided to expand and/or clarify any areas as required.

6. The FOIA is intended to increase public accountability. The MPS recognises that this legislation will further support our efforts to engage with communities and partners in making London safer.

Impact assessment

7. The experience of law enforcement agencies in other jurisdictions has been used to assess the likely impact of this legislation upon the MPS. The MPS undertook a research visit to the US FBI in September 2003. This and other international research indicates that significant numbers of new, statutory requests for information can be anticipated from the media, academic bodies, researchers, campaign groups and organised criminal elements. In comparison with authorities in other sectors, law enforcement organisations are likely to hold significant amounts of information that may be subject to the use of exemptions to the general right of access.

8. Research suggests that the MPS is likely to receive new requests for information in year 1 (2005) in the range 5000 to 15,000. It is assessed that volume in excess of 10,000 new requests for information will impose administrative burdens that may have significant adverse impact upon the organisation. The FOIA may require costly allocations of time by senior managers who will determine the use of exemptions or be called upon to justify such exemptions when challenged.

9. The FBI has experience of FOIA and Privacy legislation from 1974. The national and international profile of the FBI together with the range of activity undertaken leads the Project Team to believe that their experience is most relevant for assessing impact of the UK FOIA on the MPS. The FBI report an immediate and substantial impact. The number of requests rose from 400 in 1974 to 13,000 in 1975. By May 1977 the FBI had deployed 300 agents from field offices to FBI HQ in order to cope with the demand. Criticism of FBI compliance with the legislation resulted in increasing resources being deployed to FOIA processing reaching a peak of 640 staff in the mid 1990s. The FBI currently employs 230 staff to process requests for information made under FOIA and privacy legislation. In 1977 FOIA in the FBI required some 800,000 staff hours at a cost of $10.6m. In 2003 the estimated cost of FOIA to the FBI was $48.6m.

10. The UK FOIA is far broader in scope than legislation in most other jurisdictions. It permits e-mail applications and effectively makes any written question of the MPS statutory. There is no requirement under the Act for the applicant to state the reasons for a request or provide any verification of name or address. This may provide opportunity for misuse of the legislation through requests that are intended to reveal exempt material and/or impose administrative burden on the MPS. It is notable that other jurisdictions have introduced FOIA prior to the recent substantial growth of e-mail usage. The UK legislation provides no requirement to state the Act or specify documents, and there is unlikely to be any application fee required.

11. The unique position and status of the MPS may also drive new written requests for information. This relates to our capital city status, national and international functions, the reputation of NSY and London as a centre of media, research and political institutions.

12. This assessment presents the following strategic risks for the MPS during 2005:

• That the resources required to process statutory requests for information impact on frontline service delivery.
• That policing methodology and tactics may be compromised by the release of information under FOIA.
• That the disclosure of information provided by the public, other agencies and contractors may impact the flow of intelligence and/or harm working relationships.
• That adverse publicity arises from a general failure to comply with the FOIA and/or the release or withholding of information in specific cases.
• That non-compliance leads to conflict with the Information Commissioner.

13. There remains significant uncertainty as to the initial level and rate of growth of new requests for information made to the MPS under the FOIA from 1 January 2005.

14. In the longer term (to 2010) it is assessed that the FOIA will impact the MPS through:

• Increased openness and accountability, continuing the trend of increasing public confidence and internal staff satisfaction.
• Further and closer engagement with communities and partners.
• Increased public understanding of policing challenges and achievements.
• Further promotion of ethical behaviour and reduced risk of corrupt practice.
• Challenges and changes to internal policy and operating procedures.

Approach to compliance

15. The MPS approach to compliance recognises that there remains a high degree of uncertainty as to how, and how quickly, the public will wish to make use of this legislation. The approach seeks to achieve a proportionate response that will make more information about the MPS accessible whilst managing any short-term pressures imposed by processing new, statutory requests.

16. The MPS Compliance Plan further ensures that information of public interest is released pro-actively whilst protecting information to which a legal exemption should be applied in the public interest.

Proactive publication

17. Increasing the information provided through the MPS Publication Scheme is likely to reduce demands from repetitive requests and provide a key opportunity to understand and address public requirements for information concerning the MPS. The content of the MPS Scheme is increasing by some 15 documents each month. The MPS Publication Scheme on the MPS website currently includes 140 documents and receives some 4000 website visits and 2000 downloads of documents each week. Support staff have been recruited to develop the content of the Scheme in line with current requests for information and guidance from ACPO on the content of the Model Scheme.

18. Activity is now focused on developing consistent, core document sets for publication through the Scheme. Monitoring of the e-mail requests to the MPS website is also being used to develop the content of the Scheme in line with public requirements. A number of questions in the current Public Attitude Survey (PAS) are being used to better assess the types information that should be made available proactively.

Processing requests

19. The supply of information through normal business processes will be unaffected by the requirements of the FOIA. Where there is a requirement to refuse or limit access to information, then the MPS will rely upon the exemptions included in the FOIA.

20. A Public Access Office (PAO) will operate in the Directorate of Information. The staffing of the PAO (11 new staff 2004/05) is based upon a risk assessment that reflects both international comparisons, the nature of the UK legislation and the particular circumstances of the MPS. This expands the office that currently processes requests under the Data Protection Act. Processes in the PAO are being designed to ensure that police staff can be deployed at short notice if demands exceed those predicted.

21. The PAO will operate to process requests for information that require co-ordination, may be chargeable or relate to corporate issues. In all other cases, managers in OCUs and Branches will be trained to apply necessary exemptions as required. Staff in the PAO will provide expert support to OCUs and Branches whilst maintaining and developing corporate policy on the use of exemptions. The PAO will monitor MPS compliance with the legislation, provide central co-ordination with external agencies and maintain the relationship with the Office of the Information Commissioner.

FOIA case management system

22 The identification, tracking and analysis of requests for information designated FOIA requests will be achieved through the provision of the FOIA Case Management System (under-development). This provides the capability to monitor applications and identify those that may be designated vexatious or part of a campaign intended to disrupt the organisation. The system will ensure co-ordination and consistency in the response to statutory requests for information across MPS OCUs and Branches. It will also support the improved processing of ‘subject access’ requests made under the Data Protection Act, 1998 and provide corporate system for the receipt and tracking of correspondence.

Training

23 The FOIA Training Strategy has been designed to allow requests to be handled centrally and/or distributed to OCUs and Branches across the MPS. This flexibility will allow the MPS to better cope with unanticipated volumes of requests that require the use of exemptions.

24 All MPS staff will require a general awareness of the FOIA. This is being achieved through ongoing briefings supplemented by awareness material (leaflets, posters). The required levels of awareness will be achieved without staff abstraction from the workplace.

25 A smaller group of MPS staff require sufficient training to enable the application of exemptions where information is to be withheld. The FOIA Training Plan includes a 1-day training course delivered to 1200-1500 managers in two phases between September 2004 and March 2005. The delivery of FOIA training is co-ordinated with that of other major corporate change initiatives.

Information management improvement

26. Compliance with the FOIA at lowest cost requires the MPS to understand what recorded information it holds and to be able to retrieve it quickly when required. A range of activity in this area is current and included within a programme of work under the Information Management Workstream Board. It includes a survey of all MPS information holdings, a review of retention policy and work to aid the retention and retrieval of electronic records. An Information Directory has been developed and is currently being rolled-out to OCUs and Branches.

27. Significant current work includes the development of an MPS File Plan, aligned with national work, to provide for the standard categorisation of records for the police service. The training and deployment of Information Managers in OCUs and Branches is continuing. This role supports improvements in information management and provides a contingency for additional processing capacity should demand exceed that predicted.

C. Race and equality impact

1. The FOIA requires that information held by the MPS should, subject to any exemptions, be made accessible to any individual or organisation anywhere in the world. There are a number of equality and diversity issues that must be considered in relation both to the proactive publication of information and its release following statutory request.

2. Whilst public authorities are being encouraged to utilise the internet to increase access to information, there remains a risk that those groups without such access may be disadvantaged. The MPS have taken steps to ensure its Publication Scheme is accessible through leaflets produced for local authority central libraries and Citizens Advice Bureaux. It has also committed to providing copies of the Scheme in the main minority languages and in appropriate formats for groups with special requirements. Currently, activity is being undertaken to ensure that the format of the Publication Scheme on the internet is fully compliant with the Disability Discrimination Act, 1995.

3. The MPS Policy and Standard Operating Procedures for FOIA are scheduled for publication in October 2004. This work is being conducted within the MPS policy development process and will incorporate the requirements of all relevant legislation including the Race Relations (Amendment) Act, 2000 and the Disability Discrimination Act, 1995.

4. Whilst applicants for information are only required to provide a name and address, current work is examining the feasibility of requesting further (optional) information in order to assess any discriminatory impact.

D. Financial implications

1. Revenue growth totalling £1.09m has been approved from 2004/05 to support FOIA processing and associated information management improvements. Phased recruitment to fill growth posts required for FOIA commenced in May 2003 and will complete by July 2004. In addition to new posts, priority has been given to FOIA preparation activities from within existing budgets.

2. All activity to prepare the MPS for the requirements of the FOIA is therefore taking place using previously approved budget allocations.

E. Background papers

• Meeting notes

F. Contact details

Report author: Superintendent David Chinchen, MPS.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Legislative summary

Application

1. The Act applies to 120,000 public authorities including all police forces and police authorities and the National Crime Squad. The NCIS, M15, M16 and GCHQ are not subject to the Act.

General right of access

2. From 1 January 2005 the FOIA provides a general right of access to all recorded information held by the MPS, subject to certain exemptions. The Act applies to all recorded information of any age (fully retrospective) and in any format (paper, digital, audio, maps, plans, images etc).

3. Applications for information must be made in writing (e-mail, facsimiles or letter) and the applicant must supply a name and address for correspondence. Applications can be made by individuals and organisations, and are not restricted to UK residents or nationals. Applicants do not have to refer to the Act or pay a fee. In most cases the information requested must be provided within 20 working days. The existing Data Protection Act, 1998 will continue to operate, meaning that applicants will still have a right of access to personal information held about themselves, but, in most cases, personal data about other people is protected from disclosure under FOIA. The Information Commissioner intends to publicise this new right of access from early 2005.

Exemptions to the right of access

4. The FOIA provides exemptions that may applied to prevent the release of information where this is in the public interest. There is a presumption that information will be disclosed unless an exemption exists. Any use of an exemption can be challenged through the external and external complaints procedures under the Act and its Code of Practice. The exemptions under the FOIA are discretionary. All information that is not exempt must be provided and documents edited (redacted) where appropriate to remove exempt material.

5. Substantial exemptions exist for criminal proceedings and investigations, the protection of confidential sources and any other information that, if released, would be likely to prejudice the prevention or detection of crime. Law enforcement exemptions will, in general, require the application of a public interest test to assess harm arising from disclosure or non-disclosure. Exempt information may still be disclosed where the public interest in disclosure outweighs that of non-disclosure.

Charging

6. The Act allows for the limited imposition of fees for costs that arise in the retrieval of information. The Fees Regulations remain in draft but are unlikely, when approved, to offer significant scope for cost recovery. The current Fees Regulations (draft) will allow the recovery of 10% of the marginal costs arising from activity to retrieve information requested plus any disbursements (postage, copying etc). This charging mechanism will operate to a level where the cost of retrieval reaches £600.00. Where the cost of retrieval exceeds this upper limit, then the MPS will be under no obligation to undertake further retrieval activity. Where it chooses to do so in the public interest, the full cost of retrieval will be recoverable from the applicant.

7. Current charges for the supply of information (video tapes, collision reports, statements, etc) can continue to be made but must be reasonable and included in the MPS Publication Scheme. All other charges made for information must be in accordance with the Fees Regulations to be issued under the FOIA.

Monitoring and enforcement

8. The Information Commissioner is charged with monitoring and enforcing compliance with the FOIA by public authorities. The Act requires that the MPS establish an independent, internal procedure for complaints. Applicants thereafter have rights of appeal to the Information Commissioner and the Information Tribunal. Non-compliance with Enforcement Notices directing the disclosure of information will be treated as a civil contempt in the High Court. Systemic failures leading to public complaint are likely to be addressed by the Information Commissioner through the issue of Practice Recommendations and references in his Annual Report on the FOIA to Parliament.

Publication scheme

9. The UK FOIA provides for new information of public interest to be released proactively as part of a publication scheme. Public authorities must state in a Publication Scheme what classes of information they publish or intend to publish. The MPS Scheme has operated since July 2003 and follows an ACPO Model for all Forces. This includes the publication of policy, performance and the minutes of senior level meetings. Schemes must be approved by the Information Commissioner. Schemes should be reviewed regularly and their content developed to reflect the public’s requirements and interest in the activities of the public authority.

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