Providing FOI Performance Insights

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ENF0201053

Information CommissionerJa Office
Promoting public access to official information
and protecting your personal information
Merilyne Davies
Head of the Public Access Office
Metropolian Police Service
Directorate of Information
20th Floor, West Wing
Empress State Building
Lillie Road
London
SW61TR

** August 2008

Our Case Reference Number: ENF0201053

Dear

Freedom of Information Act 2000
you for your letter dated the 10
Thank

acknowledging the positive ton¡i¡m~~i'his
the MPS' willingness to assist Q~Uh!~~ntl;ering
within the authority. 'I!:: ¡n¡UIIII,.I.!.I.!..'.,.'t.; quot;,
iTq :'.'
:,f;;;f'i... .~;!:iTquot; .,1At0~'i:!' quot;-'f~~~';::;!;lt;;quot;
In terms of addressiO~i!~a~mj~f the p~li!n¡tftn~¡'yoûr¡cg~respondence, we have
retained the headi;i;9t;,quot;ùsedliiinthe MR~:Wètter of the 10 July for your ease of
reference. rt:?

(a) inforniation'f(m~qfisildéråt~()~;,,:;
,1::;.1;;':1
:1 ~ iquot; quot;. . t -) '.
Size .o~itH~~rg~m~atio~ Hlulh
quot;,3,quot;')quot;quot;; S;:lquot;,t¡¡
'njU~;~~:;, ' -quot;t~ni~&~, quot; quot;.ttUH1J+

The ih~~r!ration proviä~~. in rè'~pect of the 8,pale of the MPS' operation is very
helpfui,'åi~~!;provides s~fue useful confext to the challenges the authority
faces. In på~i~~iar, th~i~f;eer number of staff employed (understood to be in
excess of 50,O~R~.,¡~mW()f whom could receive a request for information,
obviously present~¡is:øme difficulties in ensuring consistently.

FolA Processes and Practitioners.

Given the scale of the organisation and the diversity of the operations it
carries out; we can appreciate why a devolved approach to FolA has been
adopted.

However, we are pleased to learn that this approach is under review as in our
experience; authorities in which all (or at least a significant portion of)
requests are dealt with centrally will be better placed to achieve improvements
in FolA compliance.

Information Commissioner's Office, Wyclìffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
t; 01625545700 f; 01625 524510 ~qirajl~jco.gsi.gov.uk ww.ìco.gov.uk
r .'..... '
:quot;t.:~

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Information Commissioneris Office
Volume of requests

Thank you for providing information on the number of requests received by
the MPS. As you have pointed out, 9541 (total from January 2005 - June
2008) requests is a significant number and it is possible that the rising profile
of information rights will increase this figure further.

% Responses Sent

We would like to request some further clarification on thE1¡preakdown of
figures provided, in order to ensure that we have proPrr¡1lWunderstood the
information provided so far. We ask as the percent~~rr¡¡~f response types
appear to breakdown as demonstrated below, w~j~ll¡ílèflN'jes 9% of response
types unaccounted for: i1¡¡W'ìH!Iquot;
own ~~fs~oai data
26% - s40 applied as the request is for
trft'i;;;;

25% - Information provided in full

10% - Partial disclosures

9% - Exempted in full

8% - information

7% -

6% Withdrawn
,i;jlblii¡;;
Total..;91 Yo

'¡;tÎii:lquot;

As matter~l'~tr¡rsic to~m# section 50 complaints we receive usually form the
CommissionêTilfll~!a,~i~!f&r deciding whether to pursue enforcement action, we
do not ordinarii,ìia~msjåer their volume as apercentage of the total number of
requests received'oy an authority.

We do however recognise that the information the MPS has provided on
internal reviews is encouraging as it suggests that the majority of requesters
are satisfied with the initial response received.

In terms of gauging the MPS' performance in this respect against other
authorities, we do not routinely collect information of this type, although we
wil invariably be provided with some indicative figures as part of our
monitoring activities. The most comprehensive information on the number of
internal reviews I section 50 complaints submitted in relation to the

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow. Cheshire, SK9 5AF
t: 01625 545700 f: 01625 524510 e: maílêico.gsi.gov,uk www.ico.gov.uk

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Information Commissioner's Office

percentage of requests received is proauced by the Ministry of Justice as part
of their quarterly and annual reports qrlFQI within central government. The
report for 2007 can be accessed on ifne af

http://ww. justice .gov. uk/docs/foi-report -2007 -final-web. pdf

Although the Department's highlighted in the report are not directly
comparable to the MPS in terms of size, scope, or the nature of their
responsibilities, we have reproduced some examples (fo,9¡~sing on those with
higher request numbers) of the number of internal revitJl'rfisH section 50
complaints submitted in relation to the total number;~~¡(equests overleaf. We
hope these will be helpful to the MPS. ,,¡fiiiiHU

received. . t ~ ~ t if- t

NB: Figures in brackets express a percenta,~~I~fthe num'ß~Hi¡gt requests

Cabinet Office 27 (4%)

18 (1%)

26 (2%)
41 (3%)

Department of 18 (1%)
54 (4%)
Health

1,154
HM Revenue and 10 (1%)
39 (3%)
Customs

0(0%)
5,405 16 (~ 1 %)
National Archives

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
t: 01625545700 f: 01625 524510 e: mailêico.gsi.gov.uk www.ico.gov.uk

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Promoting publíc access to official information

As we have touched upon earlier, we are pleased to learn that the internal
review process is subject to review. Many of the authorities we have worked
with, particularly those who have had Iipiited formalised FolA processes prior
to our intervention, have chosen to adopt awholly centralised approach.
,
Whilst this works well for many public bodies, the sheer size of the operation
would undoubtedly present a challenge to implementing such a system at the
MPS, unless significant additional resource was allocated to the Public
Access Office for this purpose. In light of this, we would ~LJggest that the MPS
considers centralising as much of the request handlin~i;~~¡possible, but
that primarily, it seeks to build upon the existing m?R;~!illl1 this context we
refer to the existing model as retaining a centraIG~n~I~~I~~IA practitioners to
lead on request and review handling, whilst drft~il~g upd~I~~Pport from
relevant staff in the Borough Operational CQ,immrand Unitsäijp)¡quot;the Operational
Command Uni'ts. ;wiitquot; 'qlS~L

.~ f ¡; .~ ,t ti
quot;; quot;'-

Letter Response ¡;ili;'1;t,

(2)

are the MPS has resourced FolA
We

within the by the authority's
commitment to which may arise.
ntH
quot;J'

';,,;:/; r,'.
(3)j¡il¡¡¡¡:i'quot; quot;quot;f.'

(3.1Ha) 'I:ìHh
idl:jIli :i;'k:tquot;

We re~Ó~I~¡~~ that ther~lume of requests received by the MPS makes it
difficult tod~ffrr¡k each,j~f!~hem individually before they are issued (with the
exception of tlfg~~,t~~~'fi from the dip sampling). However, in light of the MPS'
comments on reT4~~I;inotices issued by BOCU officers who have yet to gain
sufficient experierìC:é in FoIA, if capacity allows we would like to suggest that
draft responses from these officers are referred to the PAO for comment
before they are issued.

In respect of the Q&A measures, we consider the inclusion of this within the
existing procedures to be a very positive development and very much hope
that the Senior Management Team review will find in favour of adopting such
an approach.

Moving on to the application of exemptio~s, we would always expect an
authority to consider the substance of the information requested before
applying an exemption, but experience tells us that this is not always

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Informa'tion Commissioner's Office
Promoting public access to official ínformatìon

happening, as the recent practice recommendation issued to the Department
of Health demonstrates. It is therefore reassuring to note that, with the
exception of National Security cases, the MPS ensures that the actual
information requested is considered before applying a section 17 (4)
exemption. We are also encouraged by the MPS' commitment to challenge
the 'need to know' culture, and we recognise that this is something that wil
not be accomplished overnight. If there, is anything the Good Practice arm of
the Good Practice and Enforcement Têam can do to assist the MPS in this
challenge, we would be pleased to offer ouf support.
!
,N;;,:¡t;;'i

We have been interested to learn that the PAO do~~!~Wi¡~lwayS have access
to information covered by the National Security ~nmi¡p~ì~iain order to conduct
reviews or appeals. Clearly, this would have ~d9e'~rìh1entå'l'¡il~1Pact upon the
MPS' capacity to carry out reviews and app,n~,~¡effectively:¡a~~would
frustrate the authority's ability to demonsw~~eiconformity with~~~iprovisions of
the section 45 Code of Practice. Whilst¡w~iåre enco~raged by tneì¡~n~ent
increase in the PAO's ability to access td¡~litf info~m~tion, we renìäi~'
concerned that decisions may be taken wit~~Htl¡1~I¡i~'ccess to the
corresponding information. As 'Yr~¡Mnderstand¡tquot;~~tthiS will be an area of great
sensitivity, we wish to discuss t~i~i~it~hthe MPS¡¡r~lli;ore detaiL.

Thank you for CO~ñ~ig~::m~n~ei:;~~w~¡l:~:~kl~g, approach is no longer
in use. Thank YÇ?,l¡'¡ålso for ya~~ clarificå:~i~n on why this approach was
un e a en in e~ft~~..' im¡ f 1:;'
d rt k . th'i.t_ :1

1 t~¡ :¡j ¡''It Yquot; f Lt J f n,:'~'i:;:¡;¡'

In res~l1ff~i~tl~~~IOOPSq¡*quot;~r dated thtl¡~9 J,~ne2007, having spoken to
Car9l~~¡IHowes,Nl~;ß ha~í~~~ponsibility for investigating the case) I am
advi~*~.that we do!Hi¡~tirOld;¡~IRepy of correspondence dated 19 June 2007.
CarolY~IUfls however'i~hplained:¡that we do hold correspondence dated the 20
June 20Ø¡lll¡put that thi~l~oes not appear to require a response. Would it be
possible f¿p~nrr MPS te!~Upply a copy of the letter dated 19 June 2007 so we
are able to dl~Qkthi§'l~g;ainst the information in our case management
system? ':';;111/1P;
In terms of a more general update on the status of the~ase, I am
advised that a Decision Notice has been drafted and is with the signatory
awaiting sign off. In view of the age of the case, Carolyn has requested that
the signatory prioritises the case and we very much hope that we will be in a
position to issue the Notice shortly.

Thank you for your comments on the response issued to We
recognise that 'question and answer'style requests can present some
,l~
seek recorded information and often
challenges, as they do not necessarily

Information Commissioner's Office. Wycliffe House, Water Lane, Wìlmslow, Cheshire, SK9 5AF
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Informa'tian CommiesionerJs Office
and pr-otecting your personal Information

attempt to elicit thoughts and opinions. We are however pleased to see that
the MPS recognises that the exemptions quoted in this case should have
been expanded upon.

We are encouraged to learn that a reminder note will be issued to
practitioners in respect of the application of sections 30 ClOd 31 in tandem.

,¡ilíiiiiii::::'
Thank you for explaining the reasons why::: .ê~t¡)tst was not
handled appropriately. We are pleased to nfl~~ithat a remii1ll;ffr:;Jill be issued
to staff which will advise how requests mM;~tib'ê handled by thel~~ganisation.
-';;; t t: i ~
¡fiji'

, ¡: l' _~ :¡ ~. ): ::. _'i;;r I: i ~-

1. We are grateful for the G!ani;f.ication on;t~~H~sue of letter templates
f ;: ~,
riquot;
~p

We recognise that the duty to confirm or deny can present some unique
challenges to authorities holding sensitive data, particularly if that data relates
to matters of national security or similar.

Information Commissioner's Office, WycliffedHouse, Water Lane, Wilmslow, Cheshire, SK9 5AF
t: 01625 545700 f: 01625 524510 è: maí~~ico.gsi.gov.uk ww.ico.gov.uk

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~:,-

Information CommisalonerJe Office
and pr-oteeting your personal information

This is something that we would like to discuss in person, but in the meantime
the decision of the Information Tribunal in the case of Baker v the Information
Commissioner and the Cabinet Office (£Al2006/0045) may be helpful in this
regard, a copy of which is enclosed for your convenience.

Thank you for your comments of th~case, which I will ensure are
added to the relevant case files (as with the other informc¡,tion relating to open
cases). As the case is yet to be investigated proper, quot;:m!fl~' not wish to
prematurely indicate whether or not the MPS was ~Rn~W.(t to neither confirm
nor deny whether the information was held. Hoquot;quot;~~~rhtl~;fecognise that it
would be helpful to explain why this refusal fihciude¿h~,s!;~n example in our
last letter to you. Essentially, this was an of a re~U~~J which caused
us concern as it invoked numerous with very Iittieiertplanation as
to why they applied. Peek
(3.1)(b)
Our previous letter to the MPS !~#Me¡¡n~t~rence decision of the
Information Tribunal in Bowbrickq~I'Ndltitii.~Ú~~ . This reference
was included in order tR¡~~plain thatii~he f~~t!~~flt1~~ is introduced
after the initial refus~Il~~e~m!~t in itš~lt,~i~~ntitléé;~lauthority from relying
upon it. However/¡'M~¡went ~~¡to exp1aini'that the Commissioner would
inevitably find tlW~¡the authori~~ had bre;~flhed the requirements of section 17
by failing to inforrllt¡~,r aPPli~~¡n;t1Rithe e~~rnption it sought to rely on within
the approp~i,c¡te time~mc¡t~!li¡¡;'¡i:;h!n¡L . '.
¡¡iUIUIlIUUllIlli¡ P¡lll!!!: I;'l¡;'.
MOf~¡~~4Jent TrilJlí~¡'i~;:dedi~i¡~~s (specifically King v Information Commissioner
& tf~lr:epartment fdi¡iWork''a1td Pensions (2008) and Mclntyre v Information
comWJ~~~~oner & MinJ~l~ of iJlJj¡mce (2008)) have resulted in further
c1arificafi~~¡Rn the issu;~ipf refusal notices (section 17) and internal reviews.
As there i~rå¡I~Hmber ~nWeveloping policy lines in this respect we would like to
discuss thesetis:sLle,sdi,i;íperson.

't In the meantime arid in response to your request for clarification on the ICO's
I final guidance on how PA's should be condUcting reviews and appeals, I can
I confirm that we expect reviews to be carried out in accordance with the
¡ section 45 Code of Practice.

In terms of the confusion arising from the advice provided by members of the
Commissioner's staff appearing on public platforms, I can only apologise if

i Available at
http://ww. informationtribu nal. gov. u k/Documents/decisions/Dr%20 P%20Bowbrick%20v%201
nformation%20Comm issioner%20and%20Nottingham%20C ity%20Council%20(28%20Septe
mber%202007)v7307. pdf

Information Commissioner's Office, Wyclìffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
t: 01625 545700 f: 01625 524510 e: maillêico.gsì.gov.uk www.ico.gov.uk

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this has been the case. I have ensured that Gerrard Tracey, the Assistant
Commissioner for FOI Good Practice and Enforcement, is aware of the MPS'
concerns in this respect.

Consideration of Current Guidance and Case Law Against Old Cases
We are grateful to you for taking this opportunity to raise the MPS' concerns
on the application of current case law and guidance when considering
relatively early requests. Regrettably, this is due in part '~c,'he backlog of FOI
cases. As cases await allocation, case law and in pa~iff~t~r, Tribunal cases
progress, resulting in new lines to take on the interRc~~~~ti'on of the Act. It is
unfortunate that this can have the effect of consi9m~ijìg:i~Rauthority's
response in the context of case law which wa~in~~iavaiiå~i~c¡to them at the
time the request was made and we very mu(~~lregret that tf;¡ft¡,~as had a
demoralising effect upon practitioners atJ~~ifPS. Where pOS$!,~!~, we do try
to reflect the status of the CommissiOn~ri~!cguidanc~nft the time ofi~~e request
and you may wish to view the Decision N1'~tjFe issLlteijiin case FS5011¡47679 for
an example of this: '. . '..
http://ww. ico.gov. Uk/upload/ci8ÜWilents/d~ci~¡~~~otices/2008/fS 50147679 .p
df ,,,cquot;Huu,, quot;quot;'quot;~ ., ..C,'k ,!;,t;quot;t1th,
¡'Hil,. quot;HP quot;'qfffH~.~.;~.,¡;~.'._:;: yquot;-

Page 6 of this Deci~ìßm~li~i: exp;¡~lh~¡ni~~~MII~I~'~uthori did not
conduct an internfHpeview wj~m,in the'ti~~frame stipulated by the
Commissioner i~!lf9ood Pra5tt~e GUid~ijffe No 5' published in February 2007,
that the delay occi¡ri¡ed befll¡q~itJ;lepublicÇltjpn of this guidance on the matter.

? ¡, :j' ì i:j l' ; J:; :( 'j .~,

John-Pierre Lamb - FOI Enforcement MÇlmager
Jo Stones - FOI Enforcement Officer
Jo Pedder - Team Leader, Education Police and Justice

If the meeting is to be held here in Wilmslów, we will also endeavour to
introduce to the complaints officers handling MPS cases and to other member
of the FOI Enforcement and Good Practice Team as appropriate. We would
be grateful if you could indicate your preferences for the location and probable
date of the meeting. We will then ensure that the necessary arrangements are

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Information Cammissioner*s Office

made. A draft agenda is provided at annexe one. Please feel free to suggest
further items as required.

We would also be grateful if the MPS could p'rovide clarification on the
breakdown of % of responses, as requested in page two of this letter (in
advance of the meeting).

In closing, we would like to reiterate our thanks for the
has responded to our concerns so far. We very much
with you and your colleagues to resolve our
practice.

If you should have any questions, please me.

Yours sincerely

Jo Stones

(FOI) Enforcement Officer

Good Practice and

Enclosures
the Cabinet Offce (1Al2006/0045)

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Informa1;ion Commissioner's Office
Annexe one
Draft Agenda

1. Introductions

2. Outline of the Enforcement Strategy / Enforcement Team's role

3. Reasons for the Information Commissioner's intervention:

limited or generic
(a) Explanation of the application of

course of the
(b) Additional exemptions
section 50 investigations

(c) The timescale for

review
(d)

4.

(b)

5.

6.

Reviews (recent Tribunal Decisions)

r-t

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Informat:ion CommisaianerJs Office
Merilyne Davies
Head of the Public Access Office
Metropolitan Police Service
Directorate of Information
20th Floor, West Wing
Empress State Building
Lillie Road
London
SW61TR
12 August 2008

Our Case Reference Number: ENF0201053

Dear

Freedom of Information Act 2000 (FoIA): Audit of Complaints

Thank you for your letter dated the 10 July 2008. We would like to start by acknowledging the
positive tone of this response. We are very encouraged by the MPS' willingness to assist us
in furthering our understanding of FolA within the authority.

In terms of addressing each of the points in your correspondence, we have retained the
headings used in the MPS' letter of the 10 July for your ease of reference.

(a) Information for consideration
Size of the organisation

The information provided in respect of the scale of the MPS' operation is very helpful, and
provides some useful context to the challenges the authority faces. In particular, the sheer
number of staff employed (understood to be, in excess of 50,000), any of whom could receive
a request for information, obviously presents some difficulties in ensuring consistency.

FolA Processes and Practitioners.

Given the scale of the organisation and the diversity of the operations it carries out; we can
appreciate why a devolved approach to FolA has been adopted.

However, we are pleased to learn that this approach is under review as in our experience;
authorities in which all (or at least a significant portion of) requests are dealt with centrally will
be better placed to achieve improvements
in FolA compliance.

Information Commissioner's Office, Wycliffe House,.yVater Lane, Wilmslow, Cheshire, SK9 5AF
t: 01625 545700 f: 01625 524510 e: mailêico.gsí.gpv.uk www.ico.gov.uk

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Information CommissionerJa Office
Promoting publíc access to official information
and pl'oteeting your personal information
Volume of requests

Thank you for providing information on the number of requests received by the MPS. As you;¡
have pointed out, 9541 (total from January 2005 - June 2008) requests is a significant'
number and it is possible that the rising profile of information rights will increase this figure
further.

% Responses Sent

We would like to request some further clarification on the breakdown of figures provided, in
order to ensure that we have properly understood the information provided so far. We ask as
the percentage of response types appear to breakdown as demonstrated below, which
leaves 9% of response types unaccounted for:

26% - s40 applied as the request is for the applicants own personal data

25% - Information provided in full

10% - Partial disclosures

9% - Exempted in full

8% - information not held

7% - information already publicly available

6% Withdrawn

Total- 91%
Reviews and Appeals

As matters intrinsic to the section 50 complaints we receive usually form the Commissioner's
basis for deciding whether to pursue enforcement action, we do not ordinarily consider their
volume as a percentage onhe total number'of reqUests received by an authority.

We do however recognise that the information the MPS has provided on internal reviews is
encouraging as it suggests that the majority of requesters are satisfied with the initial
response received.

In terms of gauging the MPS' performance in this respect against other authorities, we do not
routinely collect information of this type, although we wil invariably be provided with some
indicative figures as part of our monitoring activities. The most comprehensive information on
the number of internal reviews I section 50 complaints submitted in relation to the
percentage of requests received is produced by the Ministry of Justice as part of their
quarterly and annual reports on FOI within central government. The report for 2007 can be
accessed on line at:

Information Commissioner's Office, Wycliffe House, Water Lane, Wìlmslow, Cheshire, SK9 5AF
t: 01625 545700 f: 01625 524510 e: mail(§ico.gsi.gov.uk ww.ico.gov.uk
. . .,

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Informaeian CommiseionerJe Office
.~. and protecting your personal information

http://ww . i ustice. gov. u k/docs/foi-report -2 007 ~fi na I-web. pdf
quot; );

Although the Departments highlighted in the report are not directly comparable to the MPS in
terms of size, scope, or the nature of their responsibilties, we have reproduced some
examples (focusing on those with higher request numbers) of the number of internal reviews
/ section 50 complaints submitted in relation to the total number of requests overleaf. We
hope these will be helpful to the MPS.

NB: Figures in brackets express a percentage of the number of requests received.

Cabinet Office 75 (12%)
641 27 (4%)

Department for 1,878 18 (1%)
Transport

Department for
26 (2%)
Work and Pensions 1,259 41 (3%)

Department of 1,286 18 (1%)
54 (4%)
Health

HM Revenue and 1,154 10 (1%)
39 (3%)
Customs

National Archives 5,405 0(0%)
16 (:: 1 %)

As we have touched upon earlier, we are pleased to learn that the internal review process is
worked with, particularly those who have
subject to review. Many of the authorities we have

had limited formalised FolA processes prior to our intervention, have chosen to adopt a
wholly centralised approach.

Whilst this works well for many public bodies, the sheer size of the operation would
undoubtedly present a challenge to implementing such a system at the MPS, unless
significant additional resource was allocated to the Public Access Office for this purpose. In

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Infarmat:ion CammisBionerJs Office
and protecting vour personal information

light of this, we would suggest that the MPS- Qçmsiders centralising as much of the request
handling as possible, but that primarily, it seeks tQ,build upon the existing modeL. In this
context we refer to the existing model as retaining a central core of FolA practitioners to lead
on request and review handling, whilst drawing upon support from relevant staff in the
Borough Operational Command Units and the Operational Command Units.

In our experience, the key to making such a model work lies in the quality of training afforded
to staff and to the creation of clear escalation procedures. This is something we would like to
discuss in person, and we would like to accept your kind offer of a meeting.

Letter Response
(2)

We are encouraged by the extent to which the MPS has resourced FolA within the
organisation. We are also encouraged by the authority's commitment to tackle any individual
problems which may arise.

(3)
(3.1) (a)

We recognise that the volume of requests r~ê~iv~d by the MPS makes it difficult to check
(with the exception of those taken from the
each of them individually before they are issued

dip sampling). However, in light of the MPS' comments on refusal notices issued by BOCU
officers who have yet to gain sufficient experience in FolA, if capacity allows we would like to
suggest that draft responses from these officers are referred to the PAO for comment before
they are issued.

In respect of the Q&A measures, we consider the inclusion of this within the existing
procedures to be a very positive development and very much hope that the Senior
Management Team review will find in favour of adopting such an approach.

Moving on to the application of exemptions, we would always expect an authority to consider
the substance of the information requested before applying an exemption, but experience
tells us that this is not always happening, as the recent practice recommendation issued to
the Department of Health demonstrates. It is therefore reassuring to note that, with the
exception of National Security cases, the MPS ensures that the actual information requested
is considered before applying an exemption. We are also encouraged by the MPS'
commitment to challenge the 'need to know' culture, and we recognise that this is something
that will not be accomplished overnight. If there is anything the Good Practice arm of the
Good Practice and Enforcement Team can dquot;Oito as.sist the MPS in this challenge, we would
be pleased to offer our support. ¡'::,

We have been interested to learn that the PAO does not always have access to information
covered by the National Security exemption in order to conduct reviews or appeals. Clearly,
this would have a detrimental impact upon the MPS' capacity to carry out reviews and
appeals effectively, and would frustrate the authority's ability to demonstrate conformity with

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ENF0201053

Promoting public: access to official information
and protecting your personal intormatìon

the provisions of the section 45 Code of Practice. Whilst we are encouraged by the recent
increase in the PAO's ability to access to this information, we remain concerned that
decisions may be taken without full access to the corresponding information. As we
understand that this will be an area of great sensitivity, we wish to discuss this with the MPS
in more detaiL. .,

Thank you for confirming that the 'form of undertaking' approach is no longer in use. Thank
you also for your clarification on why this approach was undertaken in the ase.
In respect of the MPS' letter dated the 19 June 2007, having spoken to Carolyn Howes, (who
has responsibility for investigating the case) i am advised that we do not hold a copy of
correspondence dated 19 June 2007. Carolyn has however explained that we do hold
correspondence dated the 20 June 2007, but that this does not appear to require a response.
Would it be possible for the MPS to supply a copy of the letter dated 19 June 2007 so we are
able to check this against the information in our case management system?

In terms of a more general update on the status of the case, i am advised that a
Decision Notice has been drafted and is with the signatory awaiting sign off. In view of the
age of the case, Carolyn has requested that the signatory prioritises the case and we very
much hope that we will be in a position to issue the Notice shortly.

Thank you for your comments on the response issued to We recognise that
'question and answer' style requests can present some challenges, as they do not
necessarily seek recorded information and often attempt to elicit thoughts and opinions. We
are however pleased to see that the MPS recognises that the exemptions quoted inthis case
should have been expanded upon.

The MPS may find the recent Information Tribunai decision in the case of Fowler v The
Information Commissioner and Brighton and Hove Council helpful in this regard. This can be
viewed at:

http://ww. informationtribu nal. gov. uk/Documents/decisions/fowlerWebDecision. pdf

We are encouraged to learn that a reminder note will be issued to practitioners in respect of
the application of sections 30 and 31 in tandem.

ia
Thank you for explaining the reasons why , request was not handled
appropriately. We are pleased to note that a remiMder will be issued to staff which will advise

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ENF0201053

Information CommiseionerJa Office

how requests must be handled by the organisation.

Turning to your answers to the separate questions (1-4):

1. We are grateful for the clarification on the issue of letter templates

2. In respect of the training options offered to IM and DM's (specifically ACPO Decision
Maker Training and ISEB training), we wonder whether there is scope to make this
compulsory, particularly in respect of.the ACPO Decision Maker Training? Again, this
is something we would be happy to discuss' in person so we are able to fully
understand the implications of such an approach

3. We are encouraged to learn that dip sampling is conducted by the PAO and would be
interested to learn what percentage of correspondence is routinely checked in this
way, and of those the percentage of responses which the PAO considers to be
unsatisfactory or similar. As above, we could discuss this in person if it would be more
appropriate

The Duty to Confirm or Deny
We are grateful for the clarification provided on the MPS' approach to neither confirm nor
deny cases. We would not expect the MPS to search through previous requests in order to
ascertain beyond doubt whether there had been any incidences of information being
erroneously provided, and are satisfied with the explanations already provided.

We recognise that the duty to confirm or denycan'present some unique challenges to
authorities holding sensitive data, particulari~ïifthptdata relates to matters of national
security or similar. . .;
This is something that we would like to discuss in person, but in the meantime
the decision of the Information Tribunal in the case of Baker v the Information Commissioner
and the Cabinet Office (lAl2006/0045) may be helpful in this regard, a copy of which is
enclosed for your convenience.

Thank you for yoù'r comments of the 7 & case, which I will ensure are added to the
relevant case files (as with the other information relating to open cases). As the case is yet to
be investigated fully, we do not wish to prematurely indicate whether or not the MPS was
correct to neither confirm nor deny whether the information was held. However, we recognise
that it would be helpful to explain why this refusal was included as an example in our last
letter to you. Essentially, this was an illustration of a refusal which caused us concern as it
invoked numerous exemptions with very little explanation as to why they applied.

Information Commissioner's Office, Wycliffe Housg, Wat1ir Lane, Wilmslow, Cheshire, SK8 5AF
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ENF0201053

end pi~oteetjng your personal information
(3.1)(b)
Our previous letter to the MPS made reference to the decision of the Information Tribunal in
80wbrick v Nottngham City Council. This reference was included in order to explain that the
fact that an exemption is introduced after the initial refusal does not in itself disentitle an
authority from relying upon it. However, we went on to explain that the Commissioner would
inevitably find that the authority had breached the requirements of section 17 by failing to
inform the applicant of the exemption it sought to rely on within the appropriate timescale.

More recent Tribunal decisions (specifically King v Information Commissioner & the
Department for Work and Pensions (2008) and Mclntyre v Information Commissioner &
Ministry of Defence (2008)) have resulted in further clarification on the issue of refusal
notices (section 17) and internal reviews. As there are a number of developing policy lines in
in person.
this respect we would like to discuss these issues

¡
In the meantime and in response to your requestTor clarification on the ICO's final guidance
on how PA's should be conducting reviews and appeals, I can confirm that we expect
reviews to be carried out in accordance with the section 45 Code of Practice.

In terms of the confusion arising from the advice provided by members of the
Commissioner's staff appearing on public platforms, I can only apologise if
this has been the case. I have ensured that Gerrard Tracey, the Assistant
Commissioner for FOI Good Practice and Enforcement, is aware of the MPS' concerns in this
respect.

Consideration of Current Guidance and Case Law Against Old Cases

We are grateful to you for taking this opportunity to raise the MPS' concerns on the
application of current case law and guidance when considering relatively early requests.
Regrettably, this is due in part to the backlog of FOI cases. As cases await allocation, case
law and in particular, Tribunal cases progress, resulting in new lines to take on the
interpretation of the Act. It is unfortunate that this can have the effect of considering an
authority's response in the context of case law whi.ch was not available to them at the time
this has had a demoralising effect upon
the request was made and we very much regret that

practitioners at the MPS. Where possible, we do ti to highlight new approaches resulting
from Tribunal decisions and similar during investigations. We also try to reflect the status of
the Commissioner's guidance at the time of the request in our Decision Notices and you may
wish to view the Decision Notice issued in case FS50147679 for an example of this:

http://ww. ico. gov. uk/upload/documents/decisionnotices/2008/fs 50147679. pdf

not conduct an internElI .
Page 6 of this Decision Notice explains that whilst the authority did

review within the timeframe stipulated by the Commissioner in 'Good Practice Guidance No
5' published in February 2007, that the delay occurred before the publication of this guidance

1 Available at
http://ww . informationtribu nal. gov. u k/Documents/decisions/Dr%20P%2 0 Bowbrick%20v%201 nformation %20Co
mmissioner%20and%20Nottng ham%20City%20Council%20(28%20September%202007)v7307. pdf

Information Commissioner's Office, Wyclìffe House, Water Lane, Wìlmslow, Cheshire, SK8 5AF
t: 01625 545700 f: 01625 524510 e: mail(§ico.gsi.gov.uk www.ico.gov.uk
quot;
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ENF0201053

on the matter.
Informat;ion CommissionerJe Office
~.t:; Pròmoting public access to official information
and protecting your personal ínformation
Meeting

We would be pleased to invite you and your colleagues to our offices to discuss the issues
raised in our correspondence to date. Alternatively, we would be pleased to visit the MPS'
offices, particularly if this could be combined with any meetings / exchange of information
which would progress current cases.

We would like to suggest that the following ICO staff members attend such a meeting:

John-Pierre Lamb - FOI Enforcement Manager
Jo Stones - FOI Enforcement Officer
Jo Pedder - Team Leader, Education Police and Justice

If the meeting is to be held here in Wilmslow, we will also endeavour to introduce the
complaints officers handling MPS cases and to other member of the FOI Enforcement and
Good Practice Team as appropriate. We would be grateful if you could indicate your
preferences for the location and probable date of the meeting. We will then ensure that the
necessary arrangements are made. A draft agenda is provided at annexe one. Please feel
free to suggest further items as required. .

We would also be grateful if the MPS could provide clarification on the breakdown of % of
responses, as requested in page two of this letter (in advance of the meeting).

In closing, we would like to reiterate our thanks for the positive way the MPS has responded
to our concerns so far. We very much look forward to working with you and your colleagues
to resolve our concerns, and promote good practice.

If you should have any questions, please do not hesitate to contact me.

Yours sincerely

Jo Stones

(FOI) Enforcement Officer

Good Practice and Enforcement

Enclosures
Baker v the Information Commissioner and the Cabinet Offce (£A/2006/0045)

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ENF0201053

and pr'oteeting your personal information

Annexe one

Draft Agenda

1. Introductions

2. Outline of the Enforcement Strategy I Enforcement Team's role


(a) Explanation of the application of exemptions limited or generic

(b) Additional exemptions introduced during the course of the section 50
investigations

(c) The timescale for internal reviews

(d) The reconsideration of issues at internal review
4. Centralisation of request handling, toinGlude:

(a) Training of staff

(b) Escalation points

5. DIP sampling

6. Access to sensitive information (national security)

7. The duty to confirm or deny

8. Refusal Notices and Internal Reviews (recent Tribunal Decisions)

t: 01625 545700 f: 01625 524510 e: mailêico.gsi.gov.uk www.ico.gov.uk

File Note - ENF0201053

New Case - 213444

Request dated - 25_07 _08

Refusal- undated

IR request - undated

IR result - undated.

IR outcome (does not conform to Part Vi of the s45 Code):

Dea~
has been forwarded to the Sex offender Unit who
Thank you for your email below. This

will deaL. As you have requested for a review, this email is not been treated as a fresh
request. I will communicate with you as soon as I have a response back from the unit
dealing.
Many Thanks,
Abbey Adeboye
TPHQ Information Manager.

Dearquot;
I have today receive a response back from Operation Jigsaw team and they still
maintained their previous decision as shown beiow:

'We do not disclose data to borough leveL. So the answer stil remains the same. As for the
SOPs, no we don't have to disclose that either. So we have re-considered and the answer is
stìl no.quot;

Many Thanks,
Abbey Adeboye
TPHQ Information Manager.

,.h

Agenda - ICO I MPS meeting 6 November 2008

Wycliffe House, Wilmslow
:t~'quot;

Attendees:
ICO - John-Pierre Lamb (Enforcement Manager), Jo Stones (Enforcement
Officer), Carolyn Howes (Senior Complaints Officer), Ben Tomes (Senior
Complaints Officer)

MPS - Merilyne Davies (Head of Public Access Office), Bob Farley (Head of
Information Compliance), Steve Farquharson (Group Director of Information
Management)

1. Introductions

2. Outline of the Enforcement Strategy / Enforcement Team's role


a. Explanation of the application of exemptions limited or generic

b. The duty to confirm or deny

c. Additional exemptions introduced during the course of the
section 50 investigations

d. Timescale for internal reviews
quot;

internal review
e. Reconsideration of issues at

4. Centralisation of request handling, to include:

a. Training of staff

b. Escalation points

c. DIP sampling

5. Access to sensitive information (including national security)

(f 6. Refusal Notices and Internal Reviews
7. 'What do they know' examples

8. Transfer of requests (section 45 Code of Practice)

if

u

9. Information held (ascertaining the extent of before a refusal notice is
issued)

10. Section 44 (1) and the Human Rights Act

11. ieo's expectations in respect of information provision during the
course of investigation

Date: 6 November 2008

Metropolitan Police Service (MPS)
Public Authority:

Location: Wycliffe House, Wilmslow

Attendees John-Pierre Lamb (Enforcement Manager) JPL, Jo Stones
JS (Enforcement Officer), Carolyn Howes (Senior
ICO:
Complaints Officer) CH, Ben Tomes (Senior Complaints
Officer) BT

of Public Access Office) MD, Bob
Other organisation: Merilyne Davies (Head

Farley (Head of Information Compliance) BF, Steve
Farquharson (Group Oirector of Information Management)
SF

Reason for meeting: Enforcement meeting concerning compliance with the
Freedom of Information Act and conformity with the section
45 Code of Practice.

Contribution to Monitoring of public authorities' performance in relation to
business plan: FOIA and EIR

Structured intervention e.g. advice, assessments, special
reports

4 persons (2 from GPE + 2 from FOI Operations) x 4 hours
KPI information

Associated file CMEH: ENF0201053
number
-n

SF provided background to MPS' approach to FOI. He explained that
information management as a whole had many varied, competing demands
above and beyond FOI. In addition to the core FOI practitioners within
information mana ement, there are between 70 and 80 staff members who

have responsibilities linked to FOIA across the authority.

The information management team are tasked, amongst other things, with
managing the tensions between information sharing, FOI and Data Protection.
In addition to satisfying the requirements of FOI IDP, tne reliability of data is
clearly important for operational reasons such as statisfical reporting.

It was acknowledged that any police force has its roots within confidentiality
and that many traditionally operate from a 'need to know' basis. Recognition of
the need for change is there but it may take time for the new culture to embed.
The MPS is committed to tackling this issue.

SF explained that compliance with section 10 is around 80% on average. JPL
noted that this figure was similar to the rate of compliance within central
government bodies of comparable size. Further information can be found on
the Ministry of Justice's (MoJ's) website at:

http://ww.justice.gov.uk/publications/freedomofinformationquarterly.htm

SF explained that the MPS wants to achieve 100% compliance in respect of
section 10, but there was recognition that this may not always be possible.
Adherence to the time for compliance is a corporate performance measure
which is reported to the senior management of the,¡MPS on a quarterly basis. It
i'
was also explained that FOI generally has visibility'at board leveL. Getting
recognition of FOI at board level and making it a 60rpprate priority is seen as a
real achievement for information management staff, and is welcomed by the
ICO.

All parties agreed that the MPS and the ICO could build a positive relationship,
and the ICO will provide advice and support as appropriate. JS - Contact from the
Good Practice arm of
the team to be
The ICO also agreed to attend FOI seminars or similar within the MPS to
provide advice. provided to the MPS.

The ICO also agreed to inform the MPS of any trends or patterns in non- JS - review of MPS
compliance / conformity emerging. cases to be carried
out at the end of the
current financial year.
Results to be
A general discussion on the following topics followed:
communicated to
application of limited or generic exemptions'j MPS

MD explained that this was largely a historic issue,altQ:Øugh CH pointed to CH- List of
unallocated cases to
some examples from 2007 / 08. BT explained that exemptions should only be
applied to the actual information in question in order to avoid reliance on be provided to MD in
general principles. JS added that in order to help avoid Decision Notices which order that the relevant
paper work for each ...
find against the authority on a procedural basis, they should ensure that full
section numbers, including the sub-sections are cited iìi refusals and internal can be collated
review responses. This is particularly important when relying upon part of
section 30 or 31. CH explained that it would also be helpful if full section
numbers were quoted when corresponding with the ICO during investigations. hc'
o I ~ .,.

JPL added that quoting full section numbers should help the MPS to distil the
reasons for non-disclosure more clearly.

- the duty to confirm or deny
It was recognised that NCND cases present some unique challenges. JS
explained that the MPS was not alone in finding this difficult, but that care
needed to be taken to ensure that NCND refusals were only issued where it is
appropriate to do so.

investigations quot;
c'..¡

- exemptions introduced during the course of :theaection 50

It is accepted that information is fluid and that circumstances may change qt
during the course of investigation. However, as JS explained, the ICO would
have concerns if the introduction of exemptions during the course of
investigation suggested that the refusal or the internal review had not been
dealt with correctly. MD noted that there are numerous examples of the Public
Access Office (PAO) overturning decisions at review stage, which helps to
demonstrate that reviews are being handled thoroughly.

- timescale for internal reviews

The text used in some MPS refusal notices reads as follows:

'In all possible circumstances the MPS wil aim to respond to your complaint MPS - to approach
within three months'. ACPO with regard to
. , t internal review
reviews which states that the timescales. If
This conflicts with the ICO's guidance on internal

Commissioner expects reviews to be conducted in20 working days, or 40 in appropriate, or if the
be.
exceptional cases. MD explained that the 3 months citè'din MPS refusals ' approach should

ice
originates from ACPO guidance. Discussion on how besrto approach this unsuccessful, the,

issue then followed, with SF explaining that he thought it unlikely that ACPO (JPL) may appro~:ch ,i
I;
would change its existing guidance in this regard. Following the discussion, it ACPO direct. Action

vv.as decided that the MPS would purse the matter with ACPO direct - the ICO no longer required.
may approach ACPO separately about this issue.
ICO - Review of
JPL explained what may happen if delays with internal reviews occur. cases at the end of
Essentially, an authority which repeatedly fails to adhere to the the financial year ,(JS)
Commissioner's guidance (and by virtue of this the section 45 Code of will consider internal
Practice), will receive a practice recommendation. The ICO has recently review delays as
issued a recommendation to a central government department on this basis appropriate.
and this can be viewed at:

http://www . ico.gov. uk/upload/documents
library/freedom of information/notices/dclg pr 03 11 08.pdf
UPDATE - MD explained in a phone-call to JS on thç 7 November 08 that
the latest ACPO guidance appears to have beeii.amEmded to reflect the
ICO's guidance. The MPS has amended its approaC¡J~accordingly.

';,i.

- reconsideration of issues at internal review

Please see comments made under '- exemptions introduced during the course
of the section 50 investigations' above. In addition, MD explained that a
Review Officer has been appointed recently and that work on a review begins
on the day it is received.

The ieo felt that there is some room for improvement with the content and
scope of reviews and understands that the MPS will be looking into this.

- Centralisation of request handling ;, .

a. Training of staff

MD explained that geographical diversity of staff can present a problem. SF
added that it can be difficult to attract employees to the relevant posts. MD
went on to explain that Decision Maker training will take place next year and
that internal review training was to be offered to Information Managers.

In terms of more general information dissemination, Decision Notices and
Information Tribunal Decisions are distilled and sent to Information Managers
learning. Furthermore, Information Manger
in order to support continual

conferences are held on a 6 monthly basis and relevant FOI articles are
placed on the staff intranet.

SF recognised that there was scope for wider FOI training, with particular
reference to new starters and long term staff that may not be familiar with the
requirements of FOI. It was also recognised that there was scope to include
FOI in induction training and to make some elements of FOI training
mandatory.

It was also suggested that it might be appropriate!to run intranet articles and
produce posters to boost staff awareness.
b. Escalation points

JS explained that clear escalation points, by which staff can clearly see the
point at which they are required to escalate matters (and conversely so that
the PAO can see the point at which matters need to be chased) are vital to
operating an effective decentralised system. MD assured the iea that these
are in place and provided some examples, such as the policy team chasing
overdue requests and referring the matter up as appropriate. SF explained
that one potential bottleneck between the drafting of the refusal notice and
sign off by the relevant officer had been identified as a result of this.

c. DIP sampling

MPS - to consider
The MPS carry out DIP sampling of responses, and JS enquired whether it
whether it would be
would be possible to provide statistics on the number of responses sampled,
possible to provide
and the problems identified as a result to the ieo.
ieo with statistics

- Access to sensitive information (including national security) from DIP sampling.

All of the MPS representatives gave their assurance that this matter is close to
being resolved. It is hoped that the appropriate security clearance will be
arranged to allow the appropriate MPS staff to view information of this nature.
BT and CH noted that access to sensitive information (but not necessarily that
covered by sections 23 or 24) has been a problem in the past. MD and SF
explained that this should no longer be an issue moving forward.

- 'What do they know' examples

JS introduced two examples of requests to the MPS made via the 'what do
they know' website. These can be viewed at:

http://ww.whatdotheyknow.com/requestlcctv footage of stolen van brixt

and

http://www.whatdotheyknow.com/requestlanti terror campaignsuspicious p

The reputational risk of mishandling requests made via this site (and more
generally) was discussed. JPL explained the problems experienced by Rother
District Council in order to put the risk into context. An example of some of the
associated media coverage can be found at:

http://ww.bbc.co.uk/blogs/opensecrets/2008/04/rotherbother.htm I

- Transfer of requests (section 45 Code of Practice)

A brief discussion on the transfer of requests and the recommendations of the
section 45 Code took place. As the MPS has received very few transferred
requests (and has transferred only a small number on) this was not thought to
present a problem at present.

- Information held (ascertaining the extent of before a refusal notice is
issued)
SF commented that the MPS often hold information from third parties. JS
queried whether this had ever presented a problem. MD reassured the ICO
that should a request for information held on behalfof be received,
consultation in line with the section 45 Code of Practice would be undertaken.

- Section 44 (1) and the Human Rights Act
CH explained that the right to privacy afforded by the Human Rights Act does
provide a statutory bar in respect of section 44 (1). MD queried the basis of
this approach as the MoJ appears to suggest the opposite. JS - to provide a
copy of relevant
A copy of the Tribunal decision which informed the ICO's approach was Information Tribunal
decision. Action
requested and this can be found below (EA/2006/0090 - see para 31):
Completed.

J.~ ,

http://ww.informationtribunal.gov.uk/Documents/; :
decisions/mrspbluckvi nformationcomm issioner( 17 sept2007). pdf JS - to check content
of DCA site in respect
JS explained that much of the MoJ's website material is contained on the of advice on s44 (1).
archived Department for Constitutional Affairs site and that it may be out of Action Completed -
date as a result. referred to good
practice.
ICO's expectations in respect of information provision during the course
of investigation

BT explained that the ICO expects to be provided with the exempt information
it requires to consider a case as a matter of course. The MPS representatives JPL - to provide
asked for details of the security arrangements here at the ICO so that they are details on the ICO's
able to reassure colleagues that information will be held securely. security
arrangements in
JPL undertook to provide a copy of the ICO's security arrangements in this respect of holding
regard. These details were extracted from the ICO's FOI procedures manuaL. If information. Action
an electronic copy of this extract would be helpful, it can be provided. Completed - paper
copy provided to SF
Any other comments: SF has, requested that a follow up meeting be heldin ,9
monthS time. JPL and JS have agreed and will GRiita~t
the MPS to arrange this in due course. u;.....
.
.¡,,:' '

ENF0201053 - Metropolitan Police Service
Updated audit: Complaints received between 06,November 2008 (date of last meeting) and 2
March 2009 (date of audit)

.. 21 July
FS5022206 - With Team 2-
S 10 - unable to provide
2008 some of info requested awaiting allocation.
within timescale

S17 - Use of s40 not
directly linked to DPA
principle when
communicating refusal to
applicant

quot;'015- 2008010005435 22 January NCND on refusaL. IR Open - awaiting
2008 explains that info is not allocation
held.

- Request to Chinford Police Closed
FS50226781 - 25 & 17
October Station - issues unclear
2008

- 2008070007391 25 July Request for cost of Open - awaiting
FS50227776 -
2008 informants - s30 & s31 allocation
applied in refusal

.227933- 2009010006680 12 S 10 - 44 working days to Closed
November respond (no PIT extension
2008 ~ought)

- 2008110005346 17 No immediate issues Closed
FS50229063 -
apparent
November
2008

2008100003763 14 October NCND response. Open - awaiting
2008 allocation
IR delay - 42 working days
tp respond

2008110002689 Unclear Possible s 10 delay Open - awaiting
allocation
IR delay - 53 working days

2008110000087 IR request of 26 Jan 2009 Open - with CST
appears to be outstanding

II

MPS INFORMATION
MANAGEMENT CONFERENCE ON
FOIA

Presentation Brief

Conference Date: 9th March 20Q9
9am -13:0Q am (Lunch from 12:30)
Time:
Location: Briefing Room, 5th Floor, New Scotland Yard
(Nearest tube: St James's Park)
Number of Delegates: Approximately 85+
Room Style: Lecture Theatre

Presenter: John-Pierre Lamb -FOI Enforcement Manager:
09:45am -10:45 - 50 plus 10 minutes question time.
Presentation Time:
PowerPoint Provided? Yes
Presentation Topic: FolA in the Police Sector: Common Mistakes and
Mishandling

The Presentation Aims:
The aims and objectives of the presentation is to provide the MPS FolA Practitioner
(otherwise known as Information Manager or IMs) an understanding of the incidences of poor
compliance in which the ICO Enforcement Team is taking action on.

The specific areas to cover, which would be of benefit to the audience, are:
. The role of the ICO Enforcement Team: What does poor compliance ultimately lead
to?
. Public Interest Tests: What does the IÇO consider as best practice when applying
PITs? (It will be useful to refer what t,hé ICOconsider to be bad examples of PITs).
. Applying Exemptions: When does the application of exemptions become blanket I
overused?
. Common legislation application errors, which the ICO will take issue with.
. How the role of the FolA Practitioner has an important part to play in terms of
organisation compliance

To ensure accessibility of the above topics it would be useful if the presenter refers to case
examples, so that the subject is tangible. Equally, any materials, which can be later referred
to by the audience members as reference guides will be very welcome.

Merilyne Davies (Head of Public Access Office)
For Further Information:
0207161 3554

¡,


John-Pierre Lamb
~' .

FOI Enforcement Manager

MPS Information Management Seminar
09 March 2009

FolA in the Police Sector: Common mistakes and mishandling
09 March 2009
-1-

. iJ

Statutory definition of Enforcement
Part IV of the Act & Reg 18 of the EIR
· Decision Notices
· I nformation Notices
· Enforcement Notices
· Provisions for non-compliance with notices
· Powers of entry and inspection

Decision Notices: (section 50 (3) (b)): This details the Commissioner's
findings and in cases where information has been withheld, and explains
whether the authority concerned is required to provide the requested
information to the applicant. A Decision Notice may also detail procedural
breaches of the Act. To date, six Decision Notices have been issued to MPS
and these can be found at:

http://ww.ico.gov.uk/tools and resources/decision notices.aspx
Information Notices: (section 51 (1)):These enable the Commissioner to
acquire the information he needs to investigate a section 50 (1) complaint
thoroughly. Typically, they are reserved only for those cases in which an
authority will not voluntarily provide the information required.

can be issued in
Enforcement Notices: (section 52 (1)): These

satisfied that an authority has
circumstances where the Commissioner is

failed to comply with any of the requirements of Part i. In reality, the issue of
such a Notice is rare and is most likely to be used in the case of systemic or
repeated breaches of sections 10 (time for compliance) or 17 (refusal
notices). To date, only one Enforcement Notice has been issued and its
intention was to resolve the issues arising from a number of similar complaints
relating to disclosure of advice given by the Attorney General on the legality of
military intervention in Iraq in 2003.

09 March 2009
-2-

:;,í;¡

The Notice can be viewed at:

http://ww.ico.gov.uk/what we cover/freedom of information/enforcement.a
spx

Provisions for non-compliance with notices: All of the above Notices can
be appealed to the Information Tribunal (section 57). Non-compliance with a
Notice may be dealt with as contempt of court (section 54).

Powers of entry and inspection: (section 55 & schedule 3) If a circuit judge
is satisfied that (by information on oath supplied by the Commissioner) there
are reasonable grounds for suspecting that a public authority has failed or is
failng to comply with:

· Part I of the Act;
· a Decision Notice which requires steps to be taken;
· an Information or Enforcement Notice or that an offence under section
77 has been or is being committed,
~': i,

he may grant a warrant. Such a warrant wói.ld authorise the Commissioner or
any of his officers to enter and search the premises, to inspect and seize
documentation and to inspect, examine, test or operate any equipment on
which information held by the authority may be recorded.

disclosure. .
NB: Section 77 is the offence of altering records with intent to prevent

.

09 March 2009
-3-

Enforcement duties and powers
· Section 45 - FOI (quot;Accessquot;) Code
· Section 46 - Records Management Code
· Section 47 - general dutyto promote good
practice and observance of the Act
and the Codes
· Section 48 - power to issue Practice
Recommendations in relation to s45
and s46 (and EIR) Codes
· Section 49 - reports to Parliament

. ., í~
, ,,,.,..,
The section 45 Code can be viewed 'at:

http://ww.dca.gov.uk/foi/reference/imprep/codepafunc.htm

The section 46 Code can be viewed at:

http://ww.dca.gov.uk/foi/reference/imprep/codemanrec.htm

09 March 2009
-4-

Enforcement duties. and powers
· Regulation 16 - the EIR Code
· Regulation 18 - Enforcement & appeal
provisions of the Act

The EIR Code can be viewed at:

http://ww . ico .gov. uk/upload/documerits/library/environmental info reg/detail

e.pdf '
ed specialist guides/environmental information regulations code of practic

09 March 2009
-5-

Enforcement milestones
FOIA came into force and was
· Jan 05
effective retrospectively
Commissioner created good
· Jul06
practice & enforcement function
Enforcement Strategy published
· Oct 06
First practice recommendation
· Feb 07
Enforcement officer appointed
· May 07
Two further appointments
· May 08
Publication of Monitoring Strategy
· Mar 09

t:'~ .
..

FolA in the Police Sector: CommolJ mistakes and mishandling
2009
09 March

-6-

Functions of the Enforcement Team
· Promotion of good practice
· Monitoring and providing guidance
· Informal resolution
· Practice Recommeridations
· Enforcement Notices
· Reports to Parliament

a small percentage of the Enforcement Team's work is 'public facing' in
Only

as far as the majority of issues are resolved informally. Aside from information
which may be published as a result of an FOI request, Practice
Recommendations, Enforcement Notices and the 'Other Matters' sections of
Decision Notices are considered to be ,the only publicly available documents
which detail action taken by the Team.;
1:

09 March 2Ò09
1-.7-

FOI Enforcement Strategy framework
· Promoting good practice - open government,
maximise disclosure, benefits for citizens and
public authorities
· Sources - complaints, wider monitoring,
including proactive
· Selective approach - targeted, responsible and
proportionate
· Structured intervention
· Regulatory intervention
· Publication of activities

Full details of the FOI Enforcement Strategy can be found at:

http://ww . ico. gov. u k/u pload/docu ments/libra rv/freedom of i nformation/deta il
ed specialist guides/enforcement strategy including moj update 30 05 07
.pdf

We have also published a Practice Recommendation Policy Statement which
is available at:

http://ww . ¡co. gov. uk/upload/documehts/librarv/freedom of information/practi
cal application/practice recommendations policy statement 10 aug 20065.
QQ

09 March 2009
-8-

i-!,

FOI Enforcement Strategy triggers
· Systemic, repeated or serious non-compliance with the
FOIA I EIR (especially delay) or the associated Codes of
Practice
· Evidence that obligations are being deliberately or
persistently ignored or not taken sufficiently seriously
· Examples or precedents need to be created
· Issues need to be clarified or tested
· As a means of grouping together several similar
complaints against the same public authority
· Failure to adopt a publicationquot;scheme
· Failure to make information available in accordance with
the authority's publication scheme

Example: The Department for Communities and Local Government (DCLG)
repeatedly failed to conduct internal reviews within an appropriate timescale.
We made them aware of our concerns and asked that steps be taken to
improve matters. However, the Department failed to make sufficient progress
in a timely manner and a section 45 practice recommendation was issued as
a result. This can be viewed at:

http://ww . ico. gov. uk/upload/documents/library/freedom of information/notic
es/dclg pr 03 11 08.pdf

2,(

09 March 2009
-9-

Enforcement Activity
· Cases considered by enforcement 654
· Practice Recommendations s45 5
· Practice Recommendations s46 2
· Enforcement concerns raised in DNs 101
· Enforcement quot;warningquot; letters 62
· Referred to TNA for advice 13
· Report to Parliament warning letters 2
· Meetings with public authorities 19

*running total as calculated at the end of the third quarler of 2008/09.

Cases considered by enforcement: This includes referrals from complaints
officers, issues picked up from published Decision Notices and complaints
considered as part of an audit. We also record problems we may pick up on
from external sources such as the 'whatdotheknow' website,or media articles.

Example: In January of this year, the Enforcement Team were made aware
of an article that suggested that a Police Force were failing to respond to
dozens of FOI requests within the statutory timescale. This prompted the
team to carry out an audit of section 50 (1) complaints made about the
authority. The audit lent credence to the articles' claim that the authority was
experiencing difficulties in responding to requests in a timely manner, and
uncovered a raft of other problems with the Force's approach. The
Enforcement Team is currently in dialogue with the authority in the hope that
these issues can be resolved informally.

In terms of MPS, we audited 41 sectiQri' 50 (1) complaints, which equates to
approximately two thirds of the total rlumbêr of complaints received about the
authority since the Act's implementation.

Practice Recommendations s45: Recommendations have been issued to
the Department for Communities and Local Government (DCLG), the

09 March 2009
-10-

Department of Health (DoH), the National Offenders Management Service
(NOMS), and to Liverpool and Nottingham City Councils.

The recommendations can be viewed at:
http://ww.ico.gov.uk/what we cover/freedom of information/enforcement.a
spx

Practice Recommendation s46: Following a records management
assessment of the authority by The Nâlional Archives, the ICO has just
served a section 46 Practice RecomlTendåtion on the Department of Health.
In 2007, the Commissioner's first section 46 recommendation was issued to
Nottingham City CounciL. TNA and the ICO continue to work with the Council
to improve its performance in this area.

Enforcement concerns raised in DNs: Predominately, this refers to
examples of non-conformity with any of the Codes of Practice or to more
general good practice issues arising from a case. Enforcement concerns tend
to be detailed in the 'other matters' section of a Decision Notice.

Example: In January of this year, a Decision Notice was issued to
Northumbria Police. The 'other matters' section of this Notice described some
of the Commissioner's concerns about the Force's refusal notices, specifically
that the public interest arguments were not clearly linked to the exemptions
claimed. In addition the Commissioner was concerned that the Force had
stated that the fact that multiple exemptions had been applied constituted a
valid public interest argument in favour of the maintenance of the exemptions
claimed.
f. ~

The Commissioner noted that this pròblemi!pppeared to be replicated in
refusals issued by other Police Forces. The notice can be viewed at:
http://ww . ico .gov. uk/upload/documents/decisionnotices/2009/fs 50123912. P
df

Enforcement 'warning' letters: These are issued in cases where the
Enforcement Team has concerns about an authority's compliance with the Act
or conformity with the Codes of Practice. A 'warning' letter will typically set out
our concerns (supported by evidence), and advise the authority of the
enforcement powers at our disposaL. In most cases we will seek to informally
resolve the issues arising by asking the authority to agree to a period of active
monitoring. Typically, this consists of an authority providing regular updates
on what we consider to be key indicators of performance such as compliance
with section 10 (1), or the time taken to conduct internal reviews. We may also
ask for copies of FOI policies and procedures held by the authority, and
provide advice on how these can be improved. As demonstrated by the ratio
of 'warning letters' issued to the number of practice recommendations served,
the overwhelming majority of cases are resolved informally.

09 March 2009
-11- ,

Referred to TNA for advice: If we have concerns about whether an
authority's records management is in accordance with the section 46 Code,
we may refer them to The National Archives in order that they can take
advantage of the specialist advice they provide. In serious cases this may
result in an assessment being undertaken by TNA and/or a Practice
Recommendation by the Commissioner.

Report to Parliament warning letters: Section 49 of the Act compels the
Commissioner to lay an annual report on the exercise of his functions before
each House of Parliament. Should he wish, this report can include details of
those authorities for whom he considers compliance with the Act or conformity
with the Codes to be a matter of concern. We regard this as a powerful
sanction which may result in adverse'publi.Gity for the authority concerned and
it is, therefore, reserved for the most serious cases of poor practice. To date,
the Commissioner has advised two authorities that they would be included in
such a report if their compliance / conformity did not improve.

Meetings with public authorities: Where appropriate, we will meet with
authorities to discuss the problems they arefacing and to provide advice on
how matters can be improved. We are increasingly being asked to attend
such meetings and will continue to support this approach as far as resources
allow.

FolA in the Police Sector: Com'mon mistakes and mishandling
09 March 2CJ09
-12-

, 'l:if7

MPS & the iea
· 2007/08 - iea case officers notice that
complaints about the MPS are beginning
to form a pattern of poor practice
· February 2008 - MPS are advised that the
Enforcement Team have been made
aware of the issues arising
· May 2008 - the Enforcement Team carry
MPS. .quot;
out an audit of complaint,s concerning the

09 March 2009
-13-

MPS & iea
Main issues with MPS compliance / conformity identified as a result
of the audit are:
· section 10 (delays in responding)
· section 17 (poor explanation of exemptions, poor public interest
arguments, use of blanket exemptions, application of additional
exemptions during course of ieo's investigation)
· section 45 (poor internal reviews, and delays)

. section 46 (records management -protective marking)

· relationship with ieo (delays in responding to letters and
perceived reluctance to provide exempt information)

Examples:
Section 10

In case FS50106800 2007020001775), the complainant
submitted a series of new requests alongside his request for internal review.
In the Decision Notice accompanying this complaint, the Commissioner found
that by failing to respond to these additional requests, MPS had breached
the Act and section 10(1).
sections 1(1)(a) and (b) of

The Decision Notice is available at:

http://ww. ico .gov. uk/upload/documents/decisionnotices/2008/fs 50106800. P
df

Section 17
.,:~~~,

2007060003631), the refusal notice
In case FS50170294
contained the following text:

'I previously prepared the following generic passages, focussing on the issues
you raise, that appear to be the catalyst for this request. I could explain these
further if necessary but you should presume that Sections 24,30,31,38,40,44
wil inevitably apply to the 'intellgence source' issues you raise. Other
Sections could also apply subject to the actual intellgence product that the
request refers to'.

09 March 2009
-14-

We considered this to be far too generic, and lacking an adequate explanation
of the relevance and applicability of each exemption.

We were also concerned that this and similar cases, in which MPS relied
upon inadequate explanations as to why exemptions applied, or contained
only generic arguments to support eXßmptiçms, may leave the authority open
to the suggestion that they are being appi¡êd in a 'blanket' fashion.

In case FS50129227 (2007010002228,_ the refusal notice issued
relied on section 30 (investigations and proceedings conducted by public
authorities), section 38 (health and safety) and section 44 (prohibitions on
disclosure).

During the course of the Commissioner's investigations, MPS sought to rely
on various additional exemptions including section 23 (information relating to
enforcement),
security matters), section 24 (national security), section 31 (law

and section 40 (personal data).

Whilst the introduction of an exemption at a later stage does not disentitle an
authority from relying upon it, it is likely that we would find an authority in
breach of section 17 if it is not contained in the original refusal or rectified on
review.

Section 45 - internal reviews
The Commissioner has issued guidance inwhich his recommendations for
internal review timescales are set out:

http://ww . ¡co. gov. uk/upload/documents/library/freedom of information/detail
ed specialist guides/foi good practice guidance 5.pdf

In brief, we expect all reviews to be completed in 20 working days. In
exceptional circumstances it may be appropriate to take longer, but in no case
should the review take more than 40 working days.

We had concerns as the text contained in refusals sent out by MPS (for
example in the and__ cases FS50153447,
2006110010906 and FS50188116, 200711007281 respectively) stated the
following:

'in all possible circumstances the MPS wil aim to respond to your complaint
within three months'

We were also concerned that MPS may not be communicating the outcome of
internal reviews in a way which demonstrates that they took a fresh look at
matters in accordance with paragraph 39:Öt the Code.

09 March 2009
-15-

Section 46 - records management

In case FS50129227 (_ 2006020001612), the complainant noted a
number of apparent contradictions in the protective markings recorded on one
of the documents he had been provided with as a result of his request. He
alleged that this was evidence that the public authority had deliberately
withheld information which should have been disclosed to him upon request.
In addition to the ongoing ICO section ,50 (~) investigation, a complaint was
made to the IPCC. ....
The section 46 Code (part 8, paragraph 8.6) states that:

'the record-keeping system, whether paper or electronic, should include a set
of rules for referencing, titlng, indexing and if appropriate, security marking of
records. These should be easily understood and should enable the efficient
retrieval of information'

This case demonstrates how important accuracy in this respect is and we
understand that the approach has since been reviewed and updated to
ensure that information is now correctively marked.

Relationship with ICO

Initially we were concerned that MPS were reluctant to provide the information
we needed to conduct our investigations. It was explained that this was due to
numerous concerns about the movelTent of sensitive data outside of MPS.
, ',: ',~

We are pleased to note that this, and Jmany::of the other issues identified in
this section appear to have been resolved.

, ~-

. :,;l,:,:

09 March 2009
-16-

Engagement with MPS
· 04 June 08 - Enforcement Team write to MPS to
outline concerns
· 10 July 08 - follQMliAg some interim telephone
contact, MPS respond. ICO encouraged by positive
tone and willingness to aqdress issues highlighted
· 12 August 08 - EnforcefnenfTeam agree to meet
with MPS representatives
· 06 Nov 08 - Meeting held - considered positive and
productive by both parties.
· May 09 - Follow up meeting scheduled

FolA in the Police Sector: Commoi¡ mistakes and mishandling
09 March 2009
-17-

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