Appendices
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The Code of Practice on Access to Government Information came into effect on 4 April 1994 and since then has provided the information access regime for central government departments, agencies and associated public bodies. This report sets out statistical information relating to the way in which the Code of Practice has been operated within these bodies, details of the complaints investigated by the Parliamentary Commissioner for Administration (the Ombudsman) under the Code and useful information for many of the bodies covered, such as contact details and internal review procedures. The returns used to compile this report relate to the calendar year 2002.
The Current Position
Responsibility for overseeing the operation of the Code of Practice resides with the Information Rights Division of the Department for Constitutional Affairs. (This is the new name for the Freedom of Information and Data Protection Division in the former Lord Chancellor's Department and there has been no transfer of responsibility since the last report). The division is also responsible for the implementation of the Freedom of Information Act 2000 (see paragraphs 29-35). When the Freedom of Information Act comes fully into force on 1 January 2005 the Code will become redundant and cease to have any application.
Coverage of the Code of Practice
The scope of the Code of Practice is very broad and continually changing as new bodies are created and become subject to the Ombudsman's jurisdiction and older bodies cease to exist. The Scottish Executive and the National Assembly for Wales both introduced their own codes in 1999 and they are not covered in this report.
The Scottish Code, the Code of Practice on Access to Scottish Executive Information, is similar to the UK Code and covers the Scottish Executive and the Scottish public authorities within the jurisdiction of the Scottish Parliamentary Commissioner for Administration. The Scottish Executive passed their own Freedom of Information Act. The Freedom of Information (Scotland) Act 2002 received Royal Assent on 28 May 2002.
The open government regime of the National Assembly for Wales, the Code of Practice on Public Access to Information, implemented the requirements of section 70 of the Government of Wales Act 1998 and the National Assembly's Standing Order 17. A revised edition of the Code was published in 2001 and takes account of the key features of the Freedom of Information Act 2000 in advance of its implementation, including the categories of exempt information specified in the Act.
Most public bodies in Northern Ireland, including central departments, within the jurisdiction of the Northern Ireland Ombudsman's Office follow the provisions of the Code of Practice on Access to Government Information, working on the presumption that information should be made widely available whenever possible. The Freedom of Information Act 2000 extends to Northern Ireland who follow the same rolling programme for implementation of the Act as their counterparts in England and Wales.
Departments continued to monitor their operation of the Code during 2002 and collected information from their agencies as in previous years. Some departments collected information from the public bodies they sponsor that are covered by the Code. Information from departmental returns has been summarised in the appendices. To allow comparisons to be made year on year, the monitoring requirements for this report were the same as used for previous years.
Definition of a Code Request
An individual asking for information from a government department, or other body covered by the Code, does not have to specifically mention the Code of Practice when making their request. Any request for information to these bodies should be treated in accordance with the principles of the Code, irrespective of whether the applicant is aware of it or not. The Freedom of Information Act 2000 will operate on the same principle.
This approach complicates the task of monitoring the use of the Code as it would be impracticable, for the purpose of monitoring the Code of Practice, to include within the scope of this report all requests for information received by the bodies covered. For the purpose of this report, therefore, a Code request is defined as one:
It would, of course, be impossible to give an exact assessment of the effect that the Code has had on the broad spectrum of Government Departments and other bodies covered, and on their customers - those people seeking information from them. The scope of the Code is far too wide, and its effect too far-reaching to be able to do this with any confidence. What this report seeks to do is provide a broad perspective of the volume of requests and to highlight trends, developments, and examples of good practice.
Volume of Requests
Using the definition of a Code request, outlined above, there were 5,212 recorded Code requests in the year 2002. This represents an 11.65 % increase on the 4,668 recorded Code requests received in 2001, but is less than the 5,969 requests received in 2000.
Source of requests
Code requests come from a wide variety of different sources. Table one, below, shows the breakdown of Code requests by source in all cases where Departments have been able to identify the source.
| Table 1: Sources of requests |
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Requests refused
As can be seen from Appendix 1, 20.0% of recorded code requests (as defined above) were refused in 2002. This is higher than the 2001 figure of 17.1%, and higher than the 2000 figure of 17.9%, although it is lower than the 1999 figure of 28.8%. While this is the first time in five years that the percentage of refusals has risen it should be born in mind that 50.2% of requests were refused in 1997, and 46% of requests were refused in 1998. These figures show that despite the slight rise in refusals for 2002, there is still consistently more information being released in response to requests compared to the early years of the operation of the Code.
To put this into context, this report takes no account of the hundreds of thousands of requests for information that do not fulfil the definition of a code request as defined in paragraph 8. The large majority of enquiries that departments receive on a daily basis, in writing, by telephone and by email, are answered in full, promptly and with no charge. An indication of the sheer volume of communications these organisations receive can be seen in Appendix 1.
Response Times
The Code of Practice commits Departments to respond to simple requests for information within 20 working days. When the Freedom of Information Act 2000 comes fully into force in January 2005 it will impose the same time limit for dealing with requests. Some Departments have set themselves tighter deadlines of 15, or even five days to reply to requests. In 2002 the bodies covered by this report met either the 20 day deadline set out in the Code, or their own deadlines in 92.8% of cases. This represents a slight fall from the 2001 figure of 96.4%, and the 2000 figure of 96.2%.
Exemptions
Whenever information is withheld by a body covered by the Code in response to a request, the body must inform the applicant of the reason for the information being withheld, stating specifically what exemption in the Code they are relying upon. The body also has to remind the applicant that, if they are not satisfied that the information has been justifiably withheld under the Code, they can request that an internal review is carried out. Appendix 1 has details of the exemptions cited by bodies at internal review in support of a decision to withhold this information. Table 2, below, sets this out in comparison with the number of times each exemption has been cited at internal review in previous years.
| Table 2: Exemptions cited at internal review | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Internal Reviews
A total of 62 requests for internal review were made to bodies covered by the Code in 2002 out of a total of 5,212 recorded code requests. This means that requests for internal review were received in 1.19% of recorded requests under the Code. This is very close to the 2001 figure in 2001 of 1.14%, which represented a rise from the 2000 figure of 0.84% and was thought to indicate a greater awareness of the internal review procedure among applicants and an increased willingness to use the procedure. It would seem that this trend has continued in 2002.
It is for individual bodies to make their own arrangements for the procedure used to internally review cases where information has been refused and the applicant has made a complaint. However the Guidance on Interpretation of the Code (Guidance on Interpretation - Second Edition, Part 1, paragraphs 72-73) makes it clear that:
"This should in all cases be a single stage process. The aim should be to ensure that the applicant has been fairly treated under the provisions of the Code, that any exemptions have been promptly applied and that charges are reasonably and consistently applied. It is good practice to allow for such reviews to be conducted by someone not involved in the original decision."
Appendix 5 sets out the various internal review procedures which have been adopted by Departments and some agencies or public bodies which fall within the scope of the Code of Practice. Many bodies have adopted their own target times for completing reviews, but the majority have either maintained the benchmark of 20 working days or adopted a more demanding target
Complaints to the Ombudsman
The Code of Practice states that applicants who have been refused information or who are dissatisfied should seek an internal review of the decision from the relevant body. However, if applicants are not satisfied with the outcome of the review, it is open to them to take their case, through a Member of Parliament (but not necessarily their own Member), to the Parliamentary Commissioner for Administration (Parliamentary Ombudsman). MPs are not obliged to forward such complaints to the Ombudsman for investigation and, when the Ombudsman receives a complaint she has discretion as to whether or not to investigate the matter.
The Ombudsman received 42 complaints in 2002, which compares to 33 received in 2001 and 36 received in 2000. She agreed to investigate 23 of them. The Ombudsman completed 19 investigations in 2002, of which 7 concerned complaints received that year. Appendix 2 briefly sets out the details of the complaints reported on.
The Ombudsman upheld the original decision in six cases and partly upheld the decision in eight others. It is difficult to reflect here the extent to which each of these decisions were upheld. The full findings of the Ombudsman can be found in the Ombudsman's reports on investigations completed. The Ombudsman did not uphold the Departmental decision in four cases.
Lessons to be learnt
Awareness of the Code, and openness as a way of working must continue throughout the remaining time during which the Code will operate. Government departments and other bodies covered by the Code must in particular strive to provide timely responses both to applicants and to the Parliamentary Ombudsman when dealing with requests for information and investigations into mishandled requests. It is anticipated that the Memorandum of Understanding included at Appendix 8 of this report will go some way to improve understanding between departments and the Ombudsman and will help reduce unnecessary delays in providing access to information sought by the Ombudsman
Other Code provisions
Appendix 3 gives details of how Departments and other bodies are responding to these commitments. It also gives details of the progress being made by Departments in reviewing previously withheld material and identifying records for early release.
Charges for information
The Guidance on Interpretation of the Code makes clear that:
"Departments should not charge for the provision of information which it is necessary for the public to have as part of fair and accountable performance of their functions. Information explaining:
benefits, grants, rights and entitlements
the standards and availability of services
the reasons for administrative decisions made in the applicant's case
the ways in which the citizen may exercise rights to appeal or complain about a decision
regulatory requirements affecting affairs of a business or commercial interests and
the main points of existing departmental policies or initiatives
should usually be available free of charge.
There may be a charge if a request for information does not come within one of these categories and causes additional work."
Providing information to meet a specific individual request which is not in the course of a body's normal day to day business will always have associated costs. The Government's aim is that, where charges are made, they should strike a balance between the interests of the applicant and those of the taxpayer. It is for individual bodies to decide how best to apply this principle to their particular circumstances. Appendix 4 lists the charging schemes of those departments, agencies and bodies that are included in this report.
Where a charge is to be made for the provision of information, applicants should always be informed of that charge before any work is carried out by the body. Applicants should also be given the opportunity to request an internal review of the proposed charges and, in addition, the Ombudsman can investigate complaints about excessive charging.
Freedom of Information Act 2000
Since the last monitoring report, the Freedom of Information Act has begun to come into force. In accordance with the implementation timetable announced by the Lord Chancellor in November 2001 the publication scheme provisions of the Act are being rolled out across the public sector. They came into force for central government at the end of November 2002 and the provisions will be in force for all public authorities by June 2004. The individual right of access to information held by public authorities will come into force on 1 January 2005.
The impact that publication schemes have had already in increasing the information released proactively by Departments and the review of information previously withheld by Departments is shown in appendix 3. The Department for International Development has for example committed itself to make routinely available the minutes and papers of its top level committees on its website. The phased implementation approach ensures that public authorities have adequate time both to prepare their systems and staff for dealing with requests, and to begin the process of changing the culture of their organisation to favour greater openness It also aligns with the 2004 target for the completion of the Government's electronic records management. This initiative will enable the fast retrieval and accurate creation and storage of records that will be necessary to meet the demands of the Freedom of Information Act.
In his annual report to Parliament (HC 6) on progress with implementation of the Freedom of Information Act the Lord Chancellor gave details of the work in hand both by the Lord Chancellor's Department and other departments in implementing the Act . Key areas of progress in this report included the two Codes of Practice laid before Parliament in November 2002 under sections 45 and 46 of the Act. Respectively, these specify the practices which public authorities should follow in discharging their duties under Part 1 of the Freedom of Information Act and in managing their records. In addition an order was laid in October 2002 which extended the coverage of the Act to include further public authorities. The rules of procedure for the Information Tribunal have also been amended to give it the power to decide on complaints about authorities' publication schemes.
An updated report on the review of statutory provisions concerning disclosure of information was also published in November 2002. This report identified 97 pieces of legislation which unnecessarily prevent the disclosure of information which the Government intends to repeal or amend. This demonstrates the Government's determination to remove unnecessary secrecy.
Further information about the progress in bringing into force the Freedom of Information Act will appear in this year's report, to be published in November.
Officials from the Information Rights Division, within the Department for Constitutional Affairs (previously the Lord Chancellor's Department), have undertaken, and will continue to undertake, awareness-raising seminars. The department has organised a series of training and awareness-raising seminars for officials from across the public sector which are taking place at 13 locations across the country from April to September 2003. These events are aimed at helping practitioners understand the work needed by them to ensure their organisation is equipped for the coming into force of the individual right of access to information and commence planning for its introduction.
Officials have spoken to a range of public authorities, at the Civil Service College and at courses and conferences arranged by other organisations. In these sessions, officials are reminded of the requirement to comply with the existing Code of Practice when answering requests for information until the Freedom of Information Act comes fully into force in January 2005; and of the benefits the Code has in assisting Departments to prepare for implementation. Officials are working with colleagues across Whitehall and in conjunction with the Information Commissioner's office to produce guidance for officials on the Freedom of Information Act.
In 2002, the number of Code requests measured in the monitoring data increased on the previous year. The vast majority of requests continue to be answered within the 20 working day target for response and the number of requests for internal review remains consistent with the previous year. Most requests come from individuals, MPs and Peers and the media. Of the 19 investigations the Parliamentary Ombudsman completed in 2002, the original decision was upheld in six cases and partially upheld in eight others. It is likely that the number of Code requests will increase as the Freedom of Information Act, and particularly the publication schemes requirement that is already in force for central government, raises awareness of rights to access government information.
The Freedom of Information Act has also had an increasing impact on the Code in other areas. In preparing publication schemes, many central government bodies have reviewed what information they make available and are now legally required to make available proactively information that is covered by one of the publication scheme classes. The training and awareness raising being carried out among public authorities also continues to highlight the existence of the Code, promote compliance and the benefits for central government in preparing for implementation of the Act. The Code will continue to be promoted within the public sector for the remaining period until the Freedom of Information Act is fully in force.
Further Information
Further information on the Freedom of Information Act 2000, the Code of Practice on Access to Government Information, or copies of this report (free of charge) can be obtained from:
Information Rights Division
Department for Constitutional Affairs
4th Floor, MWB Business Exchange,
10 Greycoat Place, London SW1P 1SB
Tel: 020 7960 6517
Useful documents
Code of Practice on Access to Government Information:
Open Government: Code of Practice on Access to Government Information: Section Edition (1997)
Code of Practice on Access to Government Information: Monitoring Report for 2001: August 2002
Freedom of Information Act 2000:
The Freedom of Information Act 2000