HAIAF FOI – To what extent does it apply to RSLs?

HAIAF FOI – To what extent does it apply to RSLs? Thursday 1 July

Presentation outline • FOI – the basics • Publication schemes • The information RSLs provide to TSA • The HC decision notice • Commercial interests (s.43) • In confidence (s.41) • Investigations and proceeding (s.30) • The future……. • Conclusions

FOI…… • Provides a statutory right of access to all information held by a public authority (subject to exemptions) • ‘Held’ – therefore any information provided by an RSL to the TSA, will be ‘held’ by the TSA for the purposes of the Act.

Who is covered 100,000 Public Authorities in England (not Scotland or Ireland) Central Government, Local Government, Health, Education, Police, Armed Forces, House of Commons, House of Lords Miscellaneous: The Alcohol Education and Research Council The Apple and Pear Research Council The British Potato Council The Advisory Committee on Packaging The Know-How Fund Advisory Board The Poisons Board The Measurement Advisory Committee The United Kingdom Xenotransplantation Interim Regulatory Authority HOUSING ASSOCIATIONS ARE NOT LISTED AS PUBLIC AUTHORITIES

What is covered • All recorded information held by a public authority is covered by the right of access Information not documents • Where is information found? • PC and central IT systems • CCTV and audio-tape, photographs and video clips • Mobile phones • Word processed documents • E-mails • Contact lists • Paper Based files • Filing cabinets • Cupboards • Interview notes • Notebooks • Diaries • Post-it notes

According to the Act Must be in writing Must include name and address (can just be an email address) Must include information required Don’t have to quote the Act In practice Automatically think can I give this information out Request associated with a complaint Hot topic Request from an action group Request from the media Request asks for a lot of information Request may cover more than one business area Quote the Act How to recognise a request….

When can a request be refused…. • The Act favours disclosure, however the following are circumstances where requests may be refused. • Vexatious - requests aimed at disrupting the work of the authority or harassing individuals rather than accessing the information requested NB the request is vexatious not the individual) • Repeated - If a public authority has previously complied with a request for information it does not need to comply with a repeated request from the same person (i.e. an identical or substantially similar request) unless a reasonable period of time has elapsed between compliance with the first request and receipt ofthe second. • If the request exceeds the appropriate cost limit (currently 2 ½ days) it can be refused • Aggregated requests – 2 or more requests from the same person or part of a campaign that relate to similar information received within 60 days, this prevents the submission of a number of small requests that would exceed the appropriate limit. • Requests can also be refused if an exemption applies

ABSOLUTE Already accessible Information supplied or relating to bodies dealing with security matters Court Records Parliamentary Privilege Prejudice to effective conduct of public affairs Personal Data In confidence Statute barred QUALIFIED Future publication National security Certificates under ss23 and ss24 Defence International relations Relations within the UK Economy Investigation and proceedings conducted by Public Authorities Law enforcement Audit Government Policy Communications with her Majesty Health and Safety Environmental Information Legal privilege Commercial interests The Exemptions There is no exemption for embarrassment!

Other key facts… • The Act is applicant blind and purpose blind – the motive behind the request or what the information will be used for should not form part of the decision making process • The Act is fully retrospective • The Act places an obligation on the authority to provide advice and assistance • There are 2 codes of practice; 45 and 46 which relate to request handling and records management. • Requests should be replied to promptly and in any event within 20 working days. • Applicants can request an internal review and if they remain dissatisfied review by the Commissioner’s Office. • The Information Commissioner (ICO) overseas and enforces the Act. The ICO can issue Information, Decision and Enforcement notices. • Appropriate limit – 2.5 days. Time taken to determine whether the information is held, locating, retrieving and extracting the information. • It is an offence to destroy, block, amend, conceal or destroy information held for the intention of preventing disclosure.

Publication schemes • Requirement in the Act to adopt and maintain a publication scheme • A publication scheme is a commitment to proactively publish certain types of information • The ICO has produced a model publication scheme which sets out what information the ICO thinks should be published • The main vehicle for publication is the organisation’s website • The categories of information to be published include: • Who we are and what we do (inc. structures and salaries) • What we spend and how we spend it (inc. contracts and expenses) • What are priorities are and how we are doing • How we make decisions (minutes of meetings) • Policies and procedures (inc. internal policies and procedures) • Lists and registers • The services we offer

Information provided to the TSA….. • In its role as a regulator the TSA will require RSLs to provide information to the TSA which may be of a sensitive/confidential nature. • This information will be held by the TSA for the purposes of the Act. • The TSA will often receive requests for information where the requestor has approached the RSL and they have not provided the information requested. • One of the biggest categories of request is in relation to allegations. • When someone has made an allegation to the RSL/TSA they will want to know that it is has been acted upon and will often want to see copies of reports etc. • When the TSA receives a request of this kind it will (in accordance with the code of conduct) consult with the RSL about what information can be given out. • It is important to consider how those making allegations can be kept up to date without the need to resort to FOI.

Confidence and Commercial Interests • S41 – Confidence • Have to satisfy a 3 part test…… • Must be provided by a third party • Actionable breech • Attracts necessary quality of confidence • BUT – can be disclosed: • With consent • Required by law • Overwhelming public interest • S43 – Commercial Interests • Would or would be likely to, prejudice the commercial • interests of any person (including the public authority holding • it) • Have to satisfy a 2 part test • Demonstrate prejudice ‘harm’ – ‘more likely than not’ • Public Interest test

Tribunal – Derry City Council • The request: • A Copy of the contract between Ryan Air and Derry City Council in relation to their use of the airport • Verdict • “How the airport is operated and financed is a matter or significant public interest” • “the correct position is that a concluded contract between a Public authority and a third party does not fall within section 41 of the Act” • “the effect of our conclusion is that the whole of any contract with a public authority may be available to the public, no matter how confidential the content or clearly expressed the confidentiality provisions incorporated into it, unless another exemption applies” • Depending on circumstances, technical information, e.g. in a schedule “could still be characterised as confidential information ‘obtained’ by the public authority from the other party” • `

HC Decision Notice • Request: copies of our correspondence with an RSL, relating to the applicant, including correspondence from their lawyers • HC refused – Confidentiality, court records and prejudice to conduct of public affairs • ICO – satisfied that information meets the test for confidence and actionable breech (NB did not make reference to the other exemptions applied) • ICO draws reference to the Derry Case in his examination of confidence and states that there is no overriding public interest to disclose in this case

ICO Findings • “Disclosure could be damaging to the reputation of the HC as a trusted regulator” • “The ICO recognises that there is a strong public interest in maintaining trust and in the free flow of information between regulators and the bodies they regulate and is satisfied that this presumption may, on occasion, extend to information received from the legal advisers of regulated bodies”

Section 30 – Investigations and ProceedingsRochdale Met. Council • The Request: • A copy of a report detailing the findings of an audit carried out by the Council on the Rochdale Centre of Diversity (RCD), a charitable organisation based in Rochdale. The Council carried out the audit due to allegations that funds were being mismanaged. • The Council’s response • The information was exempt under s30 – investigations and proceedings and s36, prejudice to effective conduct of public affairs. • The ICO’s response • Section 30 did not apply because the authority did not hold the information because of a legal duty to conduct the investigations. The authority had a power to investigate but not a duty to do so. The report was therefore disclosed with some redaction for personal data.

The future…..Scotland • On 17 November 2008, Minister for Parliamentary Business Bruce Crawford launched a discussion paper, calling for views on the extension of the FOI Act to cover: • Registered social landlords; • Contractors who provide public services that are a function of a public authority (e.g. contractors providing prison services); • Local authority trusts or bodies set up by local authorities (for example, bodies set up by local authorities as limited companies to run leisure facilities). • “When council housing is transferred to a housing association or when a charitable trust is established to run local authority leisure and recreation services, local people and employees may find that they have lost freedom of information rights at a stroke, as these bodies are not regarded as public authorities." • The deadline for responses was 12 January 2009. The Government has yet to advise what will be its next steps following this exercise • 69% of people in Scotland are in favour of the act being extended to cover Housing Associations.

The future…. Public Authorities • October 2008 • UK information commissioner rules that two Northern Irish housing associations are public authorities for the purposes of the Environmental Information Regulations (EIR), forcing them to disclose information about housing sites • Weaver • To what extent are RSLs public authorities…..

Conclusions…. • Openness and transparency demonstrates accountability and improves trust and confidence in decision making • Growing public support for principles of FOI e.g. MPs expense claims • If an RSL does not respond to a request for information the applicant may approach the TSA, who will have a statutory duty to consider the request and disclose the information unless an exemption applies. • Scotland have made some clear statements that FOISA should apply to Housing Associations, will the UK follow suit…. • The ICO’s ruling in respect of EIR and the Weaver judgement may lend support to arguments that RSLs should be included under FOI… • What can your organisation do to get ahead of the game…

Final comment • “If you are recording information in any form………………SOMEDAY, SOMEONE, SOMEWHERE may ask to look at it…”

HAIAF FOI – To what extent does it apply to RSLs?