Contact: Kevin Gardner, ext 7381

Nick Gibbins, ext 7544

1 Summary

1.1 This report summarises the preparations that have been undertaken by the County Council for full implementation of the Freedom of Information Act from 1^st January 2005, and seeks endorsement of a general statement of policy. The report also gives a summary of the position with regard to charging for complying with requests for information.

2 Background

2.1 The Act introduces a general right of access to information held by a wide range of public authorities. The principles embodied in the Act are consistent with other policies dealing with the modernisation of government, with the objective of ensuring that decision making by public bodies is more open and accountable. The Act will enable people to access more information held by the County Council than before, and requires a change in the way information and records are managed and in the way that requests for information are handled.

2.2 The Act has been implemented in stages. In the case of local authorities, the duty to adopt and maintain a "publication scheme" came into force in February 2003. The right of individual access comes into force on 1^st January 2005.

2.3 The general right of access to information applies to any person , which includes an individual, or a legal entity such as a company. The right includes both a right to be told whether the information exists and the right to receive it. Normally, a request for access should be responded to within 20 working days.

2.4 The right of access to information is subject to a range of exemptions. Some of the exemptions are absolute eg: information accessible by other means; court records. Where an absolute exemption applies to information requested, the information does not have to be released under the Act, although discretionary release is still possible.

2.5 Where an absolute exemption does not apply, consideration needs to be given to whether any of the other exemptions provided for in the Act are relevant. Examples of these other exemptions are: information intended for future publication; information relating to law enforcement; information likely to endanger health and safety; information which, if disclosed, would prejudice commercial interests. Where any of these apply, it is then necessary to apply the "public interest" test. Unless the public interest in withholding the information is greater than that in disclosing it, the information must be released.

2.6 The publication scheme specifies the classes of information the County Council publishes or intends to publish, the manner of the publication and whether the information is available to the public free of charge or on payment. The duty upon the County Council in this respect is to adopt and maintain a scheme, to publish information in accordance with it and to review it from time to time.

2.7 On 12 December 2002, the Executive Member for Policy and Resources considered a report on the Act, and decided that the implementation of the Act should be welcomed as an opportunity to further enhance the County Council's arrangements for openness and accountability in relation to its affairs, and to encourage participation in local issues. The Chief Executive was authorised to finalise, adopt and maintain, the publication scheme, subject to the approval of the Information Commissioner, and to continue to take all steps necessary to ensure that the County Council complies with the Act and prepares for its implementation in full.

2.8 In the exercise of the authority given, the Council's publication scheme was finalised, approved by the Information Commissioner and adopted within the statutory timescale. It has been published since February 2003.

3 Preparations for Full Implementation of the Act:

3.1 Following the approval and adoption of the publication scheme, the focus of preparations switched to the development of policy and procedures to deal with the implementation of the individual right of access from 1^st January 2005. These preparations have been co-ordinated by the Chief Executive in the exercise of the authority given on 12 December 2002. The key actions that have been taken are as follows:-

_ The designation of the Chief Executive as "Information Champion" demonstrating the whole hearted commitment to the principles of the Act at the most senior officer level within the County Council.

_ The establishment by the Corporate Management Team of a Freedom of Information Act Project Team. The role of the Project Team is to co-ordinate preparations, so that the County Council fulfils its responsibilities under the Act smoothly, efficiently and cost effectively. All departments of the County Council are represented on the Project Team.

_ The development of a comprehensive Policy and Procedure Manual, which is available to officers and members of the County Council, principally via Hantsnet 2000. This sets out the steps that should be followed in dealing with an individual request for information with precedent forms for usage at each step of the process.

_ The designation of Corporate and Departmental Co-ordinators, with a particular responsibility to make sure that the agreed procedures are followed and with authority to take identified steps in the determination of requests.

_ The preparation of a comprehensive communication and training plan, setting out arrangements for communication with staff, members and stakeholders, and the arrangements for provision of training to members and officers.

_ The preparation of case studies, frequently asked questions and e-learning, to guide those involved in dealing with requests for information.

_ A seminar for all members of the County Council set for 16^th December 2004.

3.2 The Corporate Policy and Procedures Manual opens with a broad policy statement, setting the principles which the County Council will apply in meeting its responsibilities under the Act. The draft statement is enclosed as an Appendix to this report, and it is recommended that this be approved.

3.3 An area where policy remains to be determined is in relation to charging for requests. This is dealt with in the next section of the Report.

4 Charging

4.1 The Act provides that a public authority receiving a request for information may give the applicant a Notice in writing stating that a fee of an amount specified is to be charged for complying with the request. Where a Fees Notice has been given, the authority is not obliged to comply with the request unless the fee is paid within the period of three months. The fee must be determined by the authority in accordance with regulations made by the Secretary of State. An authority is not obliged to comply with the request if it estimates that the cost of complying with the request would exceed "the appropriate limit", although it may still be required to inform the Applicant whether it holds information of the type requested. The "appropriate limit" means an amount specified in the Secretary of State's regulations. Although not obliged to comply with the request where the estimated cost is beyond the appropriate limit, an authority may still choose to comply, and may make a further charge for doing so. Where this is the case, the further charge must also be determined in accordance with regulations made by the Secretary of State.

4.2 It will be appreciated from the above that the making of regulations by the Secretary of State is critical to public authorities being able to finalise their arrangements for charging for requests under the Act. Draft regulations under Sections 9, 12 and 13 of the Act, entitled " The Freedom of Information (Fees and Appropriate Limit) Regulations" were published, and these have been referred to by public authorities, in making preparations for implementation, as an indication of the Government's intentions in this respect. The draft regulations suggested that a fee of up to 10% of most of the costs reasonably incurred by an authority, in dealing with a request, could be charged.

4.3 However, on 18 October 2004 the Constitutional Affairs Secretary, Lord Falconer, announced that the Government's intentions had changed. Regulations are now to be made stipulating that, where the costs of retrieving and collating information requested is estimated not to exceed £450 (i.e. the "appropriate limit"), no charge can be made. It is stated that the legislation was introduced to change the culture of official information, and the Government believes that it should be free. It is further stated that a fees structure which is easy to understand is in keeping with the spirit of the legislation. What is not explained is why, if this is the Government's view, the earlier draft regulations were published in a form that provided for fees being recovered, and why the change in the position has only been signalled so late in the day - less than three months before full implementation - considering that four years have passed since the legislation was enacted.

4.4 The Government's announcement also indicates that, where the costs of retrieving and collating information requested is estimated to exceed £450, public authorities will not be obliged to comply with the request. However, authorities will have the option to comply with such a request and make a charge in respect of the full costs incurred in doing so. This will mean that the more complex and time-consuming requests can be refused, or complied with on a full costs-recovery basis.

4.5 It will be necessary to put in place arrangements for calculating the cost of officer time in complying with a request, so that estimates can be made as to whether complying with a particular request is above or below the £450 threshold. However, the Council is unable to finalise its arrangements for charging until the wording of the actual regulations is known. Subject to what may be stipulated in the regulations, it is considered that the most administratively expedient way of estimating costs of complying with a request is to adopt a flat hourly rate, reflecting the time and resources likely to be incurred across the Council in complying with requests. For example, if the flat hourly rate were £50, all officers would then know that if the time likely to be taken in complying with a request is less than nine hours, the request should be complied with without charge. The alternative, assessing costs on a case by case basis considering the costs of the particular officers involved in dealing with an individual request, is regarded as too cumbersome and time-consuming, leading to inconsistency and inequality.

4.6 The wording of the Government's regulations is, however, vital in finalising arrangements, as the regulations must be followed. It is recommended therefore that the Government is urged to make the necessary fees regulations without further delay so that public authorities can proceed to finalise their charging policies.

4.7 The position with regard to charging for requests for environmental information is unclear. Section 74 of the Act enables the Secretary of State to make regulations relating to the provision of environmental information. As with fees, draft regulations (the "Environmental Information Regulations") have been in existence for some time. These include provision for public authorities to charge for making environmental information available, such charge being at a level which the authority is satisfied is reasonable. However, the draft regulations have still not been approved by Parliament, and the Constitutional Affairs Secretary's 18 October announcement made no specific reference to this. Again, it is unsatisfactory that these issues remain outstanding less than three months before full implementation of the Act, and the intended implementation date of the new environmental information regulations. It is recommended therefore that the Government is urged to confirm the position with regard to the environmental information regulations without further delay so that public authorities can proceed to finalise their arrangements for implementation.

4.8 In the circumstances, it is proposed to seek approval to the following general principles on which a charging policy should be based:

4.8.1 A flat hourly rate be adopted for the purpose of estimating the cost of complying with a request, that rate being determined by the County Treasurer to reflect costs likely to be incurred by the Council. The rate adopted would be reviewed in August 2005 taking into account evidence as to the actual costs incurred in complying with requests.

4.8.2 Where costs are estimated to exceed the appropriate limit (signalled as being £450), the request should normally be complied with, subject to the full costs of doing so being recovered, unless the relevant Departmental Co-ordinator is of the view that complying with the request would be so time-consuming that other service provision would be compromised.

4.9 It is further recommended that the County Treasurer be authorised to finalise the charging arrangements, reflecting the above principles as far as possible, in accordance with the relevant fees and environmental information regulations when finally approved.

5 Conclusion

5.1 The purpose of the Act is to grant a general right of access to information held by public authorities. Substantial preparation for full implementation of the Act has already been undertaken, and the recommendations flowing from this report will enable these preparations to be completed.

6 Recommendation

6.1 The recommendations are contained in the decision sheet summary which precedes this main report.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1. Published works.

2. Documents which disclose exempt or confidential information as defined in the Act.

TITLE FILE

Draft Freedom of Information (Fees and Appropriate Limit) Regulations

Draft Environmental Information Regulations

Corporate Policy and Procedures Manual

(all held by Chief Executive's Dept)



APPENDIX

A1 Policy Statement

Hampshire County Council has always welcomed the opportunity to be open and accountable, and to encourage the public's participation in local issues. Aim 4 of the Council's Corporate Strategy - Building Strong and Safe Communities - commits the Council to working together with local people to help keep people informed and empowered. This involves improving our dialogue with local communities to ensure that everyone's views are heard, and ensuring that the community plays a central role in shaping our services.

As a local authority, the Council is accustomed to operating in an open and accountable way, having been subject for many years to a legislative framework that requires public access to meetings, agendas, reports and minutes. However, the position is affected in a very significant way by the Freedom of Information Act 2000, which creates new rights of access to recorded information held by public authorities.

The Council welcomes the full implementation of the Act, from 1^st January 2005, as an opportunity to make further progress towards achieving its aims. The Act promotes even greater openness and accountability, allowing the Council to serve its customers, stakeholders and the wider public more effectively. Communities that are better informed and empowered about local matters are better placed to engage in discussions about, and to influence decisions on, matters which affect them.

The general principle underpinning the Council's approach to the Act is that information it holds should be made publicly available, through its publication scheme and in response to individual requests, except where and to the extent that grounds for exemption in the Act apply. Procedures have been devised to ensure that our publication scheme is kept under review and updated, and to ensure that individual requests are dealt with efficiently. These procedures will themselves be kept under review to ensure that the Council exercises its responsibilities effectively and that our objectives are being achieved.

Cllr. T.K. Thornber CBE Peter Robertson

Leader of the Council Chief Executive