FOI: Why is the answer still no?

Techkoji image from article on personal privacy

Techkoji image from article on personal privacy

I made a couple of Freedom Of Information requests towards the end of last year, using What Do They Know.

My first request asked?Staffordshire and West Midlands Probation Trust for

any reports you have created or commissioned?measuring the effectiveness of programmes you support to reduce?re-offending

They very helpfully responded by placing a number of reports on their website and sending me the link to the page. There are some useful and intriguing reports on there. The reoffending analysis on the Anawin Project, who support “vulnerable women” ?in Balsall Heath is particularly impressive, showing a statistically significant impact on reducing re-offending rates.

However, my second request for individual organisations’ data behind Arts Council England‘s

Regularly Funded Organisations: key data from the 2011/12?annual submission report

has been refused. This data provides information on the benefits brought through millions of pounds of funding to arts and cultural organisations around the country. It’s money that is derived through taxation and so I was a bit surprised when my request was refused, although?Arts Council England were able to provide me with a list of the organisations that either didn’t complete their return, or sent it in late.

I asked for an internal review and although the reasoning was amended, the original refusal has been upheld.

I’m now going to try and summarise why I think my request was refused. I don’t have a legal background so some of this might be a bit loosely described..

The annual return statistics are collected by Arts Council England (ACE) and used to produce their official national statistics figures. This is where it all appears to get a bit sticky as ACE have told me that private information, (including information from corporate bodies) [my emphasis] is confidential and should be used for statistical purposes only. And that was why my initial request was refused.

The reason why I asked for an Internal Review was because I saw a response that ACE made to a request for “attendance numbers for English?National Ballet performances“. I figured that if they were turning my general request down, but answering that very specific one there might be some middle ground, a subset of my original request, that ACE would respond to. In asking for the internal review I wrote

“I would like some advice and?assistance on what data you are able to release from the annual?return that regularly funded organisations make”

I don’t think I got any advice and assistance back from ACE. Instead they responded with the results of their internal review. Firstly, they stated that they weren’t going to make any comparisons with the English National Ballet request that they had answered. They then said that although they had applied the wrong reason for refusing my initial request they were still going to refuse to answer and?explained the reason why they were now correctly refusing it.?It still seems to hinge on organisations being given confidentiality when replying to requests that will form?official national statistics figures.

My head hurts.

It does seem wrong to me that data is held to be confidential in this way. It doesn’t help ACE to be more transparent and accountable, which is something I believe they aim for. If the legal advice ACE have been given is right then I can hardly blame them for correctly interpreting the law. It would have been nice if they’d given me the advice and assistance I asked for though.

If I want to take this any further the I believe that the next step is?to apply directly to the Information Commissioner for a?decision and I’m considering that at the moment. If anybody can offer any advice on the responses I’ve had and whether it’s worth pursuing I’d be very grateful.

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  • Owen Boswarva

    Hi Simon,

    I’m not a FOI practitioner but I have some experience making FOI requests for data, so I’ll give you my comments for what they’re worth:

    Although superficially it may seem that the internal review mainly confirms the original response, it’s actually a significant retrenchment. The section 44 (1) exemption is rather harder to fight than the section 41 (1) exemption. Following the internal review ACE are relying only on the latter, so you are in a better position.

    You should read ICO’s guidence on section 41 (information provided in confidence) if you have not already done so:

    http://ico.org.uk/~/media/documents/library/freedom_of_information/detailed_specialist_guides/confidentialinformation_v4.ashx

    In my view it’s definitely worthwhile pushing forward with a complaint to the ICO. (Though don’t expect quick results.)

    I suggest you base your complaint mainly on the fact that ACE have applied the section 41 (1) exemption in a blanket fashion to all of the submission data. ACE should have considered the different categories of data individually. It is possible that some of the data (particularly the financials) has the necessary “quality of confidence” to qualify for the exemption. However it is likely that most of the data does not qualify because to release it would not constitute an actionable breach of confidence. (This is well illustrated by your example of attendance numbers for English National Ballet performances.)

    As you have noted ACE have not really provided much by way of advice and assistance in this correspondence, so you should make that point to the ICO also.

    There is no reason at all to be daunted by ACE’s mention that they have taken legal advice. They have not disclosed that advice, and in-house lawyers will usually look to support the position their employers want to take; that doesn’t mean the position is robust.

    — Owen

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  • Hi Owen

    Thank you very much for this reply, I found it very useful and encouraging. I’ve now put in my complaint to the Information Commissioners Office about the refusal to consider providing anything relating to my FOI request. In my complaint I wrote:

    “ACE have applied the exemption in a blanket fashion to all of the data
    that I requested instead of considering the different categories of
    data individually.

    I was happy to accept that some of the data may have the necessary
    quality of confidence to qualify for an exemption. However, as I
    noted to ACE in my request for an internal review, they have
    fulfilled a request for the attendance numbers for English National
    Ballet performances, which must mean that some of the data they hold
    isn’t considered by them to be confidential.

    When I asked for an internal review I wrote:

    ?Following your response stating that you would not be providing me with all the information I requested I would like some advice and assistance on
    what data you are able to release from the annual return that
    regularly funded organisations make.?

    I was not provided with any advice or assistance as I requested.
    Instead I received a legal statement that I find fairly impenetrable
    and not in the spirit of Freedom of Information.”

    As you’ll see, I’ve made use of your reply and the suggestions you made in it to form the basis of my complaint. There’s now a 30 day timeframe before I receive an initial response and case number. I’ll be sure to provide updates on any progress on here.

    Thanks once again.

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