The report of the Assistant Director – Legal and Governance is attached.

Contact:  Tim Collard (01743) 252756

The Committee received the report of the Assistant Director Legal and Governance   - copy attached to the signed Minutes – which summarised the Council’s compliance with the Freedom of Information Act 2000 (FOIA) and set out the actions taken since the Information Commissioner (ICO) issued an enforcement notice to the Council in April 2023.

The Assistant Director Legal and Governance introduced and expanded on the report.  He gave some context to the report and the background to the reason for the enforcement notice being issued.  He reported that a number of improvements had been made, as set out in the report and that the development of a dashboard, which was made available to all Executive Directors on a weekly basis, had been extremely helpful, along with the Information Governance, Leadership and Oversight Group which ensured the Directors were aware of the need to prioritise FOI requests or face very serious consequences including the Council being held in contempt of court.

He drew attention to the Action Plan (Appendix A to the report) which had generated quite significant improvements and although there was still work to be done the Council was on an upward trajectory, as set out in paragraph 2.4.  He reported that when they had met with the Information Commissioner the previous month, he had been very pleased with their progress, and it was a more positive and constructive interaction than previous meetings. 

The Assistant Director Legal and Governance informed Members that the Information Commissioner had been given access to the dashboard so they could see how the Council was doing on a day-to-day basis and that he had welcomed that transparency.  The Assistant Director Legal and Governance felt that provided they continued with this upward trajectory that the enforcement notice would be withdrawn.  Due to the work of the Head of Policy and Governance backed up by the Information Governance Team Leader there was now a much sharper focus on the issue and a better understanding amongst Directorates and another new appointee was due to start in the next couple of months which would strengthen the team.

The Head of Policy and Governance explained the next steps and that the enforcement notice ran until the 26 October, so they had until then to comply and although well on the way to achieving that, there was more room for improvement.  At the end of the 6-month period the Council would have to prepare a written response to the ICO to demonstrate how the Council had complied with the enforcement notice.  Members requested sight of that response to the ICO enforcement notice along with an update at the next meeting.  It was agreed to circulate the response to Committee Members once it had been sent, outside of the meeting if not available for the November meeting.

In response to a query about the red and amber actions and how many requests for extra time were received, the Head of Policy and Governance explained that the Action Plan was developed back in April when the enforcement notice was first received, and it was a part of the enforcement notice that the Council was required to do this.  He confirmed that the red actions were still outstanding however there was work ongoing to develop the training materials in relation to that and it was envisaged that that would be done within the next couple of months, however, due to the resources within the team their focus over the summer months had been to clear the backlog of the overdue requests and to improve the processes within the Council in order to comply with the legislation had been the paramount focus and although training formed part of that, it was important to get it right which took a little bit of time but it was a ‘work in progress’.

Members felt that the FOI legislation was a fundamental right and a very important cornerstone of democracy, so it was important for the Council to be as transparent as possible.  In response to a query about the time it took to clear the backlog of cases not responded to within the 20 days, the Head of Policy and Governance explained that they were all cleared by June 2023 apart from a very small number from prior to 2022.  He agreed to include the average number of days taken to complete each request in the November update.  He went on to explain the process for notifying members of the public if their FOI request would not be responded to within 20 days, due to some complexity or exemptions to the release of information, for example.  Although this had always been a part of the procedure, the Head of Policy and Governance confirmed that prior to 2022 the Council had not necessarily complied with that element of the legislation, however, from April 2023, steps had been taken to address those points.

Concern was raised that FOI requests were seen as an avoidable burden rather than being accepted as being something that was set out in law that allowed for open democracy.  Further concern was raised about the reputational damage to the Council.  In response to a query about whether the audit team had ever audited FOI in the past and whether they were now planning to do so, the Head of Policy and Governance reported that the Council’s information governance arrangements had been audited previously, which would have included FOI responses, and which would have been reported to the Audit Committee.  The Internal Audit Manager informed the meeting that the last audit undertaken specifically for FOI had been in 2018/19 when it had received a limited assurance rating.  Further audits on information governance had been undertaken and she agreed to circulate this information outside of the meeting.

Finally, the Executive Director of Resources (Section 1151 Officer) explained that in the past there had been a centralised FOI team however a decision had been taken to devolve this function and it became the responsibility of each individual team however, over time, performance dropped away and although consistent with what the legislation said, deadlines were not being met.  When the Resources Directorate was set up, a new post of Head of Policy and Governance was created and which would have control of and responsibility for the Information Governance Team with a view to centralising that function in order to deal with all the issues that had arisen.  However, before that could happen, the ICO issued its enforcement notice which had to be complied with so the centralisation of the service was put on hold whilst the current devolved arrangements were strengthened to adhere to the requirements of the enforcement notice.

He assured the Committee that there had never been any resistance to transparency in relation to FOI requests, it was simply around prioritisation, and he confirmed that no short cuts had been taken and that the information that had been given was the best information that the Council was able to provide. All FOI requests were investigated and signed off at a senior level before they were responded to.  The Executive Director of Resources (Section 151 Officer) made it clear that the fundamental issue had been that time scales had been allowed to slip and nothing else.  He reminded Members that this issue was discussed at Audit Committee on 20 June 2023, as reflected in the Minutes, which was the reason for the request for a progress report to come to this meeting.

RESOLVED:

To endorse the Council’s response to the ICO enforcement notice and to receive a further update on progress at the November meeting of the Audit Committee.