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Written evidence from Leeds City Council Executive Summary The Council believes that overall the Act does work effectively, but that it has a number of significant weaknesses. The Council believes that in the main the Act is working in the way that it was intended to, and that it has led to more information being put into the public domain. Evidence on • • • Does the Freedom of Information Act work effectively? What are the strengths and weaknesses of the Freedom of Information Act? Is the Freedom of Information Act operating in the way that it was intended to?

1. The Council believes that overall the Act does work effectively, as between the Council and FOI applicants, and helps the Council fulfil its value of being open and honest. It is well-used by citizens, the press and media with the Council receiving over 1200 requests in financial year 2010-2011, and with an increase of approximately 60% in request numbers in the current financial year. The Act contains key exemptions designed to protect private information, and commercially valuable information, so that information in the Council’s hands is protected where this is necessary. In the vast majority of cases - approximately 90% - the Council discloses the information requested or directs the applicant to the source of that information if it is already in the public domain. The key exemptions appear to be well understood and accepted by applicants. The Council receives complaints/appeals in only a very small proportion of cases – approximately 1%, and applications are made to the Information Commissioner’s Office (ICO) in only about 0.5% of cases. 2. We believe the Act has the following strengths and weaknesses 1. The Act provides an applicant with the right to have “information” communicated to him (Section 1(1)(b)), and provides that a request for information is one which “describes the information requested”. However, the ICO has interpreted these provisions so broadly that a request for all the information in a specific file, or database would be a valid request. Likewise a request for “all the information in X’s e-mails between 1 January and 31 December” would be regarded by the ICO as a valid request. Please see Decision Notice Reference FS50298572, dated 2 December 2010. This places a very significant resource burden on public authorities. Under the Freedom of Information and Data Protection (Appropriate Limits and Fees) Regulations 2004, authorities are only able to put the cost of certain defined activities towards the “appropriate limit”, such as locating, retrieving and extracting information. They cannot include the cost of time spent considering exemptions. If a request for “all the information” in a file, or database or e-mail account is a valid one, authorities are obliged to consider potentially thousands of items of information to see whether an

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exemption could, or should be applied, and are not be able to count any of the cost of so doing towards the appropriate limit. We do not consider it was intended to place such a burden on public authorities. In addition, we consider it must be appropriate that an applicant has a particular subject or issue in mind when they seek information, and that this must be described sufficiently in the request. In our view, it should not be sufficient for an applicant to describe the particular medium in which information might be held, such as a file or e-mail account, but rather a valid request should be a request for information about a particular subject or issue. 2. We believe the Act does not enable authorities to reject what are patently frivolous requests. For example, the Council has received a number of requests about ghost sightings and paranormal activity in its buildings. In this respect we believe that in addition to a public authority not being obliged to comply with a “vexatious” request, Section 14(1) should be extended to provide that an authority is not obliged to comply with an obviously frivolous request, in the same way that the Commissioner is entitled not to make a decision on an application which is “frivolous or vexatious” under Section 50(2)(c). In addition, we believe that the threshold set by the ICO and by the First-tier Tribunal for what amounts to a “vexatious” request is too high, and that the guidance issued by the ICO in this respect should be revised. 3. We believe that the appropriate limit of £450 specified by the Regulations mentioned above should not stand in isolation from the number of requests a public authority receives, and that this limit should be linked in some way to the volume of requests received, possibly with a limit by individual applicant or by subject matter. 4. We believe that insofar as the appropriate limit is calculated by reference to staff time, the upper limit of £25 per hour is wholly unrealistic and outdated and should be revised so that authorities can make this calculation by reference to the actual cost of staff time. 5. We consider that the time for compliance with requests, “promptly and in any event not later than the twentieth working day following the date of receipt”, in Section 10(1) takes no account of the volume of requests a public authority might receive at any particular time, or the resources available to it. We think this time limit should be more flexible and should be linked to numbers of requests in some way, or should be revised to extend the time available. 6. We consider the exemptions in Section 41 (information provided in confidence), and Section 43 (commercial interests) have not been applied in a way which acknowledges the potential prejudice to authorities and to bidders for public contracts. In particular, we would refer to Decision Notice Reference FS50265157 dated 27 May 2010 where the Commissioner took the view that disclosing an administration fee payable under a contract “may increase competition and drive

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prices down”, and rejected the argument that there was a strong public interest in prospective bidders not being discouraged by the fear they would not be on a level playing field with their competitors by reason of disclosures made in response to information requests. We would respectfully suggest that the Information Commissioner lacks the necessary expertise and experience to form a view as to effects of particular disclosures on public procurement exercises, and that greater weight should be place on the views of the public authority concerned. 7. Generally, we believe the Act prevents authorities and the ICO from distinguishing those requests where there is a clear public interest in disclosure from those requests which serve the private interests of the applicant either entirely or primarily. Authorities and the ICO are bound to give weight to a number of general public interests in disclosure such as openness, transparency, and accountability for the spending of public money, even where applicant’s request is patently self-interested and cites none of those interests, and where there is no actual evidence that those purposes will be served by the particular disclosure. In our view, the Act should make it clear that where the public interest test is applied, the requirement to apply the test taking account of “all the circumstances of the case”, means that an authority is entitled to take account of such factors as the number of similar requests for the same information, the number of individuals likely to benefit from disclosure, and whether the applicant or other individuals will derive some personal financial or other benefit from the disclosure. By way of evidence we would refer to the Decision Notice specified in paragraph 6 above. 8. We believe that the ICO’s investigation and decision-making process places an unnecessary burden on public authorities. In our view, the ICO’s screening process for rejecting applications which are “frivolous or vexatious” under Section 50(2) is inadequate. In addition, although the ICO places strict time limits on authorities for responses to the ICO’s investigations about how an FOI request has been handled, authorities are given no overall indication of how long an investigation will take or how long it will take the ICO to issue a Decision Notice. 9. We believe that most of the exemptions contained in the Act are clear, and are well understood by public authorities and FOI applicants. However, one or two exemptions are overly complex and technical, and difficult to apply – in particular, the exemption in Section 30 (investigations and proceedings conducted by public authorities), and the exemption in Section 40 (personal information). 3. We believe that overall, the Act is operating in the way it was intended to. Although local authorities have long been required to publish significant amounts of information relating to their formal decisions, the Act has increased the amount of information published both routinely by the Council, and in response to individual requests. However, we do not believe it was intended that the Act should enable information with a commercial value to be exploited by an applicant. At present, it is unclear to what extent an authority can charge

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for information in accordance with its publication scheme, before that information is no longer “reasonably accessible” to an applicant under Section 21. In our view, where an authority has reasonable grounds for believing an applicant intends to exploit information commercially, there should be an exemption which requires their request to be dealt with under the Re-use of Public Sector Information Regulations 2005 which permit charges covering certain costs and a reasonable return on investment. February 2012