Monday, 8 November 2010

More NCC Incompetence on Freedom of Information - Or Stonewalling?

NCC is proper taking the piss on a couple of my Freedom of Info cases, in particular this one.

I requested information about a bunch of portfolio holder decisions because there was a slew of them that were claimed to be 'exempt' from publication under Schedule 12A of the Local Government Act 1972. I've been suspicious for a while that NCC is abusing this provision in order to hide things which would be politically embarrassing as opposed to being genuinely against the public interest to publish. The outrageous attempt to cover up the attempt to commission political advice paid for from public funds is an example of this.

Uncharacteristically quickly, albeit unsurprisingly, I received a response refusing my request. I therefore requested a review, so far, so routine.

Then it got a bit weird because Information Governance wrote back saying that they would not be 'actioning' my request. This was a flagrant breach of the Freedom of Information Act and I wrote back saying that I was treating their response as a refusal of my review, at which point they wrote back, grudgingly agreeing to provide a response.

The issue resolves around the interaction between the Freedom of Information Act and the myriad other bits of legislation designed to keep us in the dark. The FoIA has a number of exemptions, some of which involve a 'public interest' test, some of which are absolute. One, under s.44 says that if publication is prevented by other legislation then it is absolutely exempted under FoIA, the idea being to prevent two bits of law conflicting.

The Information Commissioner has previously ruled on whether s.44 FoIA applies when Sch 12 LGA has previously applied and has decided that it doesn't, saying -

"50. The public authority has argued that schedule 12A of the Local Government Act 1972 operates as a statutory bar to disclosure and therefore the exemption at section 44 of the Act is engaged.
Schedule 12A sets out categories of information considered to be “exempt information” – i.e. information that is exempt from the duty to disclose under the Local Government Acts. It has been
replaced by Schedule 12A of the Local Government (Access to Information) (variation) Order 2006 (SI 2006/88).

51. It is the Commissioner’s belief that schedule 12A operates only
to exempt information from being disclosed for the purpose of the formal decision-making process and other local government
proceedings. The Commissioner does not accept that information which is exempt under those provisions for those specific purposes is necessarily exempt from disclosure under the Freedom of
Information Act. When a request to which the Freedom of Information Act applies is received, the relevance of any exemptions under that Act must be considered as at the time the request is received.

52. Accordingly, it is the Commissioner’s view that schedule 12A
does not operate as a statutory prohibition to disclosure under the Act and therefore the exemption at section 44 of the Act does not
apply in this instance."

In other words Sch 12A doesn't automatically trigger an exemption under s.44 but it is still possible that one of the other exemptions may apply and a public authority is obliged to consider the request under those terms.

Anyway, it all went quiet for a bit and I wrote again to check they were still intending to respond and they said that they would do so by 27 October. This date passed, another reminder from me and a promise that yes, a response will now be provided by 1 November. It will not surprise you to hear that I am still waiting so I have sent it off to the Information Commissioner.

In the meantime I received a final response on another case which turned on a similar point and gives a clue as to their thinking. They said -

"Firstly, it is the current position of this Authority that Schedule 12A can provide a prohibition on disclosure and that as a result, section 44 of the Freedom of Information Act 2000 may be engaged as the Schedule 12A prohibition, if remaining relevant, could act as a prohibition under another enactment. Further, and as has been previously stated to you, section 44 of this Act is absolute and no test of public interest is required in order to apply this exemption and withhold the information, although it is accepted that in the case of Schedule 12A applications, the Schedule 12A must be re-assessed to see if it is still relevant, and in making this re-assessment a public interest test has to be applied."

Rather looks to me that they have (deliberately?) misinterpreted the Information Commissioner's ruling. They think that all they have to do is to have another think about the public interest element of their original Sch 12A decision and, if they consider it to apply, s.44 of the FoIA is automatically invoked which provides an absolute exemption. I think that the Information Commissioner is saying that Sch 12A doesn't provide a bar to publication and FoIA refusals must be based around the exemptions specifically set out in that Act.

If you're still with me you're probably wondering what's the difference, you're still not getting the information?

Well, I'm betting that NCC will be arguing that only they have the right to decide whether information is exempt from publication under Sch 12A LGA and that an absolute exemption is triggered under s.44 FoIA, meaning the Information Commissioner has no right to intervene. Ergo, no external scrutiny of how they decide which information they decide to keep secret and no external scrutiny of their idea of a public interest test.

If, on the other hand the alternative interpretation holds the Information Commissioner will have the opportunity to assess whether a current FoIA exemption applies, including considering a public interest test. This holds out the possibility of ending what I suspect is a practice of abusing the provisions in the LGA to hide politically embarrassing information.

The unnecessary delays and initial attempt to persuade me that they didn't even have to carry out an internal review suggests a desperation to keep the matter out of the hands of the Information Commissioner. This may give an indication of their optimism that their argument will sway the day.

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