in this section

• Countdown to the right to know
• Promoting access rights
• Working with others
• Publication Schemes
• Timetable for adoption of publication schemes
• Freedom of Information: Your Right To Know

There have been two main strands to this year’s work on freedom of information: preparation for the full statutory right of access to publicly held information which begins on 1 January 2005; and approval of public authorities’ publication schemes.

Countdown to the right to know
The Freedom of Information Act 2000 does not give an absolute right of access to all information held by public authorities. It contains a number of specific exemptions, most of which are subject to an over-riding test of whether the disclosure of information would be in the public interest. The application of the public interest test is clearly going to be crucial to many decisions about disclosure. It is clear from contact with public authorities that there is a widely felt need for guidance in this area. We have responded to this and, in addition to the guidance already published, more is being developed.

The Information Commissioner’s Office, and to a large extent the Freedom of Information Act itself, is likely to be judged by the effectiveness with which complaints about failures to comply with requests for information are dealt. There has been considerable interest from journalists and others in the Ministerial veto that the Freedom of Information Act contains. It has been suggested that this will make the law a ‘damp squib’ that will have no real effect in terms of giving greater access to the information that public authorities hold. The Ministerial override is not something which can be exercised in secret. When a certificate is issued, Ministers are under a duty to lay a copy of the certificate before both Houses of Parliament. It is the Information Commissioner’s intention, on each occasion that a certificate is issued, to make a Special Report to Parliament giving our view of whether it we think it appropriate for a certificate to have been issued.

We anticipate receiving complaints about failure to give access soon after 1 January 2005. The proper handling of complaints will depend primarily upon the development of policy around the application of the exemptions in the Freedom of Information Act, and upon thorough understanding and application of the public interest test. It is envisaged that the bulk of our policy development work will be completed by the end of July 2004. This will allow a reasonable period of time for training case officers and disseminating relevant advice to public authorities.

In November 2003, we commissioned the Constitution Unit to carry out research into the likely volumes, complexity and sensitivity of freedom of information casework. This work studied the experience of Australia, Canada, New Zealand and the Republic of Ireland, most of which have legislation similar to that in the UK. The research will help us to judge the resources we are likely to need once the right of access to information commences in January 2005, but substantial uncertainty remains about the volumes we will receive in practice.

It is also important for us to know how well the various bodies covered by the Freedom of Information Act are preparing for its full implementation. So, over the summer of 2003 questionnaires were sent to some 200 authorities falling within waves 1 - 3. The survey suggested a good level of preparedness by central government and Northern Ireland departments. The response from police forces suggested similarly high levels of preparedness. There appeared to be a greater appreciation of the opportunities presented by freedom of information among the Northern Ireland responses. So far as local government was concerned it was clear that preparations were not as advanced as in the other sectors surveyed. Local authorities were also more likely to complain about the lack of additional resources for compliance. The survey gave some interesting indicators of the sorts of information the public are interested in. For example, local authorities detected particular interest in planning committee agendas and reports. In fact these are already available under existing legislation.

We have also been preparing for our responsibilities in respect of the Environmental Information Regulations. These Regulations will give the public a right of access to a wide range of information relating to environmental issues such as land use, air quality, water quality and pollution. These give effect to a recent EU Directive and are due to be introduced at the same time as access rights under the Freedom of Information Act. As far as possible the two access regimes will be brought together into a single regime to be enforced by the Information Commissioner. However, there are some significant practical differences, for example the manner in which requests can be made and the charges that can be levied for giving access.

Guidance has been issued on several of the exemptions in the Act, and work is well advanced on developing our thinking around its other exemptions. In several cases we have had extensive discussions with those who will be affected by the exemptions. These include relevant public authorities, representative bodies, and, wherever possible, representatives of those who are likely to use the Act’s statutory right of access. In July 2003 we published our ‘Introduction to the Freedom of Information Act 2000’. We have also published ‘awareness guidance’ on the following topics:

• personal information;
• information received in confidence;
• the public interest;
• legal professional privilege;
• commercial interests;
• information accessible by other means;
• information intended for future publication; and
• frequently asked questions on records management.

A considerable amount of detailed work has been done on the procedural and technical issues arising from the Freedom of Information Act. These include:

• issues relating to fees and refusal notices;
• questions of how to communicate information;
• the identification of vexatious and repetitious requests;
• the development of policy around disability and other access issues; and
• the Act’s provisions relating to records held by the National Archives.

This stream of work has been coupled with work around the statutory codes of practice on access to information and records management provided for in the Act. We have also issued advice to public authorities on the process involved in handling a request for information.

It is important, as the independent regulator, that we take our own view of the meaning of the exemptions and the circumstances in which the public interest may or may not require disclosure. At the same time we have been happy to work with others on the development of guidance on the exemptions and on other aspects of freedom of information. We have worked, for example, with the Local Government Association, the Association of Chief Police Officers and the Department for Constitutional Affairs (DCA). We are awaiting final draft guidance from the DCA working groups before deciding what additional work we may need to carry out ourselves. We are also awaiting Government regulations on access to environmental information and on fees before we can offer advice to public authorities on these matters.

Promoting access rights
We have promoted freedom of information in various ways, including numerous face to face meetings with public authorities, seminars and conferences. We have addressed audiences at events organised by the DCA, umbrella organisations such as the Local Government Association, professional associations, universities and private sector conference organisers. We have addressed awareness raising seminars for several central government departments, for instance the MoD and DEFRA. We have spoken at a large number of events aimed at other authorities including local government, higher education and the NHS. Our Northern Ireland office was launched at a major conference with freedom of information as its theme. This was attended by some 250 delegates from public authorities in Northern Ireland. The interest in freedom of information has been constant and is certainly increasing further as we move towards 2005.

In general we intend to promote the Act to the public once the ‘Right to Know’ has been implemented. However, we have published a short information leaflet for the public, ‘Read All About It – A Guide to Information Available from Public Authorities.’ The leaflet has been distributed through libraries and Citizens Advice Bureaux. We will be issuing further advice for the public later in the year.

Working with others
There are various bodies who are either given specific roles by the Freedom of Information Act itself or with whom it is important to have a particularly close working relationship. These include:

• The Department for Constitutional Affairs: we continue to have a close relationship with the DCA both as our sponsoring department and as the lead department for FOI in central government. The Commissioner continues to co-chair with the relevant Minister the Lord Chancellor’s Advisory Group on the Implementation of Freedom of Information. The group has members from across the public sector and from the DCA and our own office. It also has independent members, including an academic, a journalist and others with a specific interest in freedom of information.
• The National Archives/Public Records Office of Northern Ireland: we have held regular meetings with the Keeper of the Public Record. Work on the development of formal Memoranda of Understanding to do with records management is well underway.
• The Parliamentary Commissioner for Administration (the Ombudsman): the relationship between the Ombudsman and Commissioner is particularly important as requests for information under the Open Government Code give way to requests under the Act. The Ombudsman and her staff have proved to be invaluable sources of advice and experience of dealing with access to information issues. A formal memorandum of understanding between our offices is expected to be agreed shortly.
• The Scottish Information Commissioner: Scotland has its own Freedom of Information Act and a Commissioner responsible for implementing it. It is very important to have a good working relationship with our Scottish counterpart. The development of this relationship will be facilitated by meetings involving the DCA, the Information Commissioner, Scottish Executive and Scottish Information Commissioner. Again, a formal memorandum of understanding is also under development.

Publication Schemes
There is a requirement under the Freedom of Information Act 2000 for public authorities falling within the scope of the legislation to adopt and publish a ‘publication scheme’. A publication scheme is in essence a guide to the information that an authority commits to make readily available to the public when requested to do so. In order to ensure that a scheme provides for an appropriate level of public access to official information, an authority’s publication scheme must be approved by the Information Commissioner.
It is estimated that over 100,000 public authorities fall within the scope of the Freedom of Information Act 2000. These range from individual NHS practitioners to the largest government departments. The scrutiny and approval of publication schemes is a major administrative task for us. Therefore we have set up a specialist unit that is entirely devoted to the approval of public authorities’ publication schemes.

The development and approval of publication schemes takes place in six “waves”. The first wave consisted of central government departments and some non-departmental public bodies, including the Information Commissioner’s Office. These organisations were required to adopt a publication scheme and publish information in accordance with it from 30 November 2002. By June 2004 all public authorities subject to the Freedom of Information Act 2000 should have adopted an approved scheme.

Timetable for adoption of publication schemes


All but a handful of the schemes in Waves 1-4 were submitted on time and all of those were approved on time. This has been a considerable achievement, both for my Office and for the large number of public authorities concerned. Regrettably, one District Council has failed to submit a scheme for approval and is currently the subject of enforcement proceedings. However, we have been generally encouraged by the positive attitude adopted by the vast majority of public bodies. Although some have done little more than include information which they were already making available, others took the opportunity to publish much more. We hope the message continues to get through that the more material is included in a publication scheme on a voluntary basis, the less onerous it will be to deal with requests for access to publicly held information once full individual access rights go live in January 2005.

The Information Commissioner’s Office approves both ‘bespoke’ and ‘model’ publication schemes. A bespoke scheme is one designed by a particular public authority for its own use. A model scheme is a generic one that may be adopted by particular categories of public authority, who are likely to hold and make available similar types of information. For example, model schemes have been designed and approved for use by general practitioners, schools and parish councils. Schemes are approved for a limited period of time, usually four years, after which new approval must be sought. There is however a duty to review schemes regularly.

For the first round of approvals, we have not set particularly high thresholds for approval. At this stage, our most important objective has been to ensure that schemes are adopted and that processes are established for scheme development, review and renewal. This does not mean, however, that we are under-estimating the importance of publication schemes as a means of promoting public openness. We have initiated a wide-ranging review of schemes, looking at their content, the effectiveness of particular schemes, the efficiency of our approvals systems and, importantly, the use that the public makes of publication schemes. This work will lead to revised approval criteria for the second round of approvals and to a review of our own systems and procedures.

Initially, aIl public authorities were asked to submit either their bespoke scheme to us for approval or to advise us of their adoption of a model. Many smaller organisations found model schemes suitable. For example, there are about 10,000 parish councils and parish meetings. Virtually all of these have adopted a model scheme. Those doing so were required to notify us that they had adopted the model and we had to record that fact. However, there are no comprehensive lists of some of the types of authority caught by the Freedom of Information Act, typically smaller ones such as NHS dentists and community pharmacists. This made it impossible to tell whether there were any public authorities that had failed to adopt a scheme when required to do so.

Therefore, in order to simplify the process for all concerned, for some of the later waves of public authorities for whom model schemes have been approved, we have publicised the existence of the model and the obligation to adopt a scheme but have not required a formal return. Once the first round of approvals has been completed, we intend to carry out a check of a representative sample of those authorities who should have adopted a model scheme to ascertain whether this “light touch” approach has been effective.