Board Paper No (08) OBM 04 by luckboy


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									Board Paper No: (08) OBM 04 For meeting on: 31 January 2008 To: Board For information




The Commission’s approach to requests for information under the Freedom of Information Act 2000 (FOI).

Recommended Board actions The Board is asked to: note the provision of the legislation and the Commission’s practice in dealing with FOI requests; and in keeping with its duties to have regard to the principles of best regulatory practice and to comply with the principles of good corporate governance, reaffirm the Commission’s commitment to openness and transparency, including adherence to the letter and spirit of the FOI legislation.

Contacts: Kenneth Dibble, Executive Director Legal Services and Compliance James Kilby, Head of Legal Compliance

1. Background


The Freedom of Information Act 2000 represents the latest development in efforts to break down “the traditional culture of secrecy”1 of government. It replaced the existing non-statutory code of practice for central government introduced in 1994 and the existing statutory scheme for local government. The FoI White Paper set out to strike “a proper balance between extending people’s access to official information and preserving confidentiality where disclosure would be against the public interest. It is a new balance with the scales now weighted decisively in favour of openness.”2


The Freedom of Information Act 2000


Under the Act, the Commission, as a public authority, is bound to provide whatever information it holds to any member of the public who asks for it unless: • • • the cost of supplying the information would be excessive; the request is vexatious; or the information requested is “exempt information”.


Broadly speaking, information is exempt if disclosing it will prejudice: • • • the interests of third parties (for example, commercially sensitive information, personal data, information provided in confidence by third parties); or the wider interests of government (for example, information about national security, defence, international relations, the economy, law enforcement); or the work of the department (for example, information whose disclosure would have a detrimental effect on investigations and proceedings, law enforcement, the effective conduct of public affairs).


Our implementation of the 2000 Act

Procedure 3.1 A request for information must: • • • 3.2 be in writing (including e-mail); identify the applicant; and describe the information requested.

We have 20 working days in which to comply with the request (although if we need more time, we will write to the applicant to explain why and to say when the request will be complied with; we may provide such information as is immediately available and undertake to provide the rest subsequently). Charity Commission Direct records, allocates and monitors all FoI requests in the Commission. Requests arising in connection with casework are dealt with by the team working the case, in accordance

Freedom of Information White Paper, Preface by the Prime Minister, 11 December 1997. Foreword by the Chancellor of the Duchy of Lancaster.


with such legal advice as they require. (The process appears to work well: we consistently deal with over 90% of requests in time and occasionally we have achieved 100%). 3.3 In giving advice, Commission lawyers have the advantage of being able to consult the Ministry of Justice’s clearing house. The clearing house provides advice in difficult cases, and ensures consistency in the case of requests that are made to several departments, or are likely to establish precedents.

Applying the Act 3.4 Our approach to FOI has mirrored our long-standing commitment to openness and transparency and we aim to disclose wherever this is possible. In the year to 30 September 2007, our statistics show that we processed 333 requests. 33 requests were for information that we simply didn’t hold. We provided information in response to 224 requests (giving only part of the information requested in 76 cases). We refused 61 requests outright and provided advice and assistance in the remaining 15 cases. Most requests that we receive relate to charities, rather than to the operation of the Commission. The consequence is that, where we turn down requests for information, it is usually in order to protect the interests of third parties. In 2007, for example, most information that was not disclosed was withheld on the grounds that it constituted personal data (30% of cases) or that it had been provided in confidence (32% of cases). The principal grounds on which we withheld information in order to protect the work of the department in 2007 were: • • • • 3.7 prejudice to law enforcement; legal professional privilege; the information relates to investigations and proceedings which we are conducting; and prejudice to the conduct of public affairs.



We have hitherto only very rarely relied on the ground that the cost of compliance would be excessive, despite the fact that dealing with some requests is very time-consuming.

The main exemptions: • Information accessible from other sources: Information which is reasonably accessible from another source is absolutely exempt from disclosure under the 2000 Act, even if it is available elsewhere only on payment. Court/inquiry records: confidential information which has been obtained in the course of an inquiry has been caught by this exemption (section 31). We have now been advised that this information falls within section 32, which provides an absolute exemption for information contained in documents given to, or created by, a person conducting an inquiry. The application of Section 32 in the future is likely to increase, therefore. Personal information: this exemption applies where disclosure of personal information about an individual other than the applicant would infringe the data protection principles. We invoke it to protect the identity of junior members of staff (we are willing to identify members of staff of grade PB6 and above on the basis that



these staff occupy “outward–looking” posts). • Information provided in confidence: this exemption is used primarily to protect the identity of informants.


Unlike the exemptions mentioned above, which are absolute exemptions, the following exemptions apply only where the public interest in disclosure is outweighed by the public interest in withholding the information in question. Information which is exempt from disclosure (either absolutely or as a result of this balancing exercise) cannot be disclosed under the Freedom of Information Act. Depending upon the reason for exemption, some exempt information may nonetheless be disclosable in furtherance of one of the Commission’s statutory functions. • • Prejudice to law enforcement: this exemption applies where disclosure would prejudice our purposes of protecting and recovering the property of charities. Legal professional privilege: we rely only occasionally on the legal professional privilege exemption. In part, that is because most legal advice is given in the context of casework and the substance of the advice usually finds its way into our correspondence with third parties. Formulation of government policy: information relating to the formulation or development of government policy is exempt under section 35. However, in balancing the public interests for and against disclosure, we are bound to have regard to the particular public interest in disclosure of the factual information used to brief decision-makers. Prejudice to the effective conduct of public affairs: the exemption relating to the effective conduct of public affairs (section 36) cannot be invoked to protect information which is exempt under section 35: these exemptions are alternatives. The section 36 exemption is unusual in that it works not by reference to a description of the information held, but by reference to the effects of disclosure. For our purposes, this exemption will apply where (in the reasonable opinion of the Board) disclosure would (or would be likely to): • • • inhibit the free and frank provision of advice; inhibit the free and frank exchange of views; or otherwise prejudice the effective conduct of public affairs.




The Board must go on to weigh the public interests for and against disclosure. Like other government departments, we are concerned to ensure that requests for information do not intrude on Ministers’ ‘thinking space’, in our case the Board’s.3


The rationale for relying on section 36 is that disclosure of the material in question will: • adversely affect the frankness and candour of discussion and of officials’ advice; • encourage decision in closed inner circles (government by cabal); • undermine effective record-keeping ; • discourage the exploration of radical policy options; • undermine the relationship between decision-makers and officials; • risk compromising civil service neutrality; or • expose decision-makers to the criticism that they have not followed (alternatively that they have blindly followed) civil servants’ advice.

4. 4.1

Challenges to our decisions Where we do not comply with a request, we offer applicants the opportunity of a review by a more senior member of staff, usually a lawyer. (In very high-profile cases, it may be appropriate for the initial request to be considered at Board level: in that event, there is, of course, no internal review). If an applicant is still dissatisfied, he or she may appeal our decision to the Information Commissioner. So far, only four of our decisions have been appealed. In each case, the Information Commissioner upheld our decision to: • • • • withhold the name of an informant on the basis that we owed him a duty of confidence (section 41); withhold legal advice on the ground of legal privilege (section 42); refuse to disclose the identity of an informant on the grounds that to do so would prejudice the Commission’s law enforcement function (section 31); and refuse to disclose a draft report of the Independent Complaints Reviewer on the basis that we had been given it in confidence (section 42).



These decisions provide some assurance that we are applying the exemptions and conducting the balancing of the public interests for and against disclosure correctly.


Risk assessment Risk We are perceived as secretive. We fail to comply with the requirements of the Act. We are successfully challenged before the Information Commissioner or the Information Tribunal. Likelihood Impact Mitigation Low High We continue to approach requests in the spirit of openness underlying the Act.


We continue to provide adequate legal resource for this work; we liaise Medium closely with the MoJ as appropriate; CCD continues to monitor requests. We continue to take a conscientious Medium approach to complying with the legislation.


James Kilby Head of Legal Compliance

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