Freedom of Information Botheration

One of my freedom of information requests to NCC has taken a slightly sinister turn. The original request was refused, ok, nothing unusual there and quite dealable with by asking for a review. If that request isn't successful and NCC still refuses to give you the info then you go to the Information. In this case however, NCC has not simply reviewed the case and stuck by its decision to refuse to provide the info, it has refused to carry out a review at all.

Some background. There are quite a lot of circumstances where information is exempt from disclosure under the Freedom of Information Act and these are set out in Part II of the Act. Many of them you wouldn't argue with and many require a weigh up of the public interest before information is witheld.

One that's caused me a few problems though is s.44 which says -

"44 Prohibitions on disclosure

(1) Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—

(a) is prohibited by or under any enactment,

(b) is incompatible with any Community obligation, or

(c) would constitute or be punishable as a contempt of court.

(2) The duty to confirm or deny does not arise if the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) fall within any of paragraphs (a) to (c) of subsection (1)."

and it pops up in this case. In particular para 1 (a) is what we're dealing with and it is what's known as an 'absolute' exemption in that such information is always exempt, there is no requirement to weigh up the public interest in releasing or withholding the info. The idea is that it prevents two bits of law being in conflict.

As far as councils are concerned there are various bits of legislation about the place requiring that the public are entitled to attend meetings and that agendas, minutes and decisions must be made available for inspection at council offices and stuff. For a decision made by an individual member of the executive the relevant law is in regulation 21 of The Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000. It refers to exceptions to these requirements known as 'exempt information' which is defined by Schedule 12A of the Local Government Act 1972. These requirements to make documents available are in addition to the FoIA and in some cases pre-date it.

Now NCC has been assuming that anything covered by the definitions in Sch 12A is effectively secret. Rather handily, the person who decides whether an executive portfolio holder's decision is covered by the 'exempt information' definition is the portfolio holder her/himself. I'm sure you don't need me to suggest ways in which that could be abused.

So, NCC believes that sch 12A prevents them from publishing the information and that this in turn invokes the absolute exemption of disclosure under s.41 of the Freedom of Information Act. I'm not sure where they got the idea that it meant that they didn't even have to carry out a review, as far as I know they do have to in all circumstances, even if they believe the outcome is a foregone conclusion. Which they clearly do cos they think an absolute exemption to the Freedom of Information disclosure requirements applies.

This where the wonderfulness of the 'What Do They Know?' website makes an appearance. The site allows you to leave annotations on other peoples requests and there is a growing community of people who use this facility to give you tips and that's what happened here. A helpful chap called Matt left me a note providing a link to an Information Commissioner's decision which said that sch 12A does not necessarily invoke the s.41 absolute exemption for disclosure so I quickly passed the reference on to NCC which should give them something to think about for tomorrow.

What's more it set me off researching the legislation behind all this. Essentially, sch 12A does not prevent disclosure at all, it just defines what is classed as 'exempt information'. Other legislation, such as regulation 21 mentioned above sets out what must or must not happen to information so defined. In the case of regulation 21 an executive decision classed as 'exempt information' is not actually prevented from disclosure, it just means that there is no requirement for the council to make it available for inspection and the like, which there would be normally. It's not saying you CAN'T publish, just that you don't have to and therefore there is no prohibition on publication at all. The upshot of that is that s.41 of the Freedom of Information Act doesn't apply after all so there is no absolute exemption.

I'll be interested to see where NCC goes with this. My guess is that they'll apply another FoIA exemption but that will likely involve a public interest test which can be challenged. It will certainly rattle a few cages because I strongly suspect they've been using this assumed FoIA exemption to hide all sorts of embarrassing info. The decision to end CEHRNN's funding was one such decision. If they stop using it it will be small increase in accountability which can only be a good thing.