Freedom of Information (Time for Compliance with Request) Regulations 2010

My Lords, the Minister said that academies cannot delay; I wish to argue that they can delay, and I will set out the circumstances in which they can and which cause me concern about these regulations. I am a regular user of the freedom of information legislation that applies to all public bodies—I have a number of applications outstanding with both government departments and local authorities at the moment—and I ask the Committee to recognise that while academies fulfil the same function as maintained schools in the state sector, they are different in that they comprise a greater element of independence, and it is that independence and the influence of that independence on the management of such schools that worries me. Under existing legislation, educational institutions can be quite tardy in dealing with freedom of information applications. Unlike government departments and local authorities, whom I find fairly reliable, educational institutions can often be difficult. The problem with these regulations is that they are not accompanied by safeguards. In my view, this will lead to an abuse of the system. If evidence of abuse is needed, we need do no more than consider the report of the Campaign for Freedom of Information, which, when reporting on delays by the Information Commissioner in completing investigations, found that the completion of 46 per cent of the cases it handled were delayed by one or two years, 25 per cent by between two and three years, and 5 per cent by more than three years. When it wrote its report, one case showed a delay of three years 9 months after the Information Commissioner had dealt with the report. I understand that efforts are being made by the Information Commissioner to tighten up on these delays, but what we are doing today may hinder applications unless proper safeguards are introduced. Let me give an example of what happens when educational institutions decide they want to delay and deny the public information they should have in the public interest. A maintained school within the United Kingdom, which could easily become an academy, decided upon a course of action which we will describe for the purposes of the debate as its project. The project was opposed by a number of expert organisations, one of which took the school to court, and huge legal fees were paid to fund the case of the expert objector. An MP took an interest in the case in the other House, advised against the action and used freedom of information legislation to unravel the affair. On 20 February 2008, the MP wrote to the school to establish the cost to the school of defending its action in proceeding with the project, the source of the funding, the role of the local authority, what legal advice had been given to the school, and the role played by the head and the governing body. We should remember that these regulations will extend the period that schools have to reply to questions under freedom of information legislation. The school replied and refused to provide the information. On 15 March 2008, the MP applied under freedom of information legislation; the school still refused. On 15 May, the MP wrote to the school asking for an internal review of the decision to refuse to comply. There was no reply from the school. On 29 July 2008, the MP approached the Information Commissioner. On 11 September 2008, 44 days later, the Information Commissioner replied, saying that he had asked the school to issue a review within 20 days. On 23 October, a further 42 days later and eight months after the original request, the school revealed that it had spent £76,000 on legal costs to that date. The school carried on refusing to answer the other questions. Perhaps now the relevance of the 60 days may be dawning on Members of the Committee. In March 2009, the MP made a fresh application, asking further questions under FOI. The school again refused to respond. On 16 April 2009, the MP wrote again to the school under FOI; the school later claimed that it had lost the letter. The MP sent a copy of the letter to the school; the school replied but again failed to answer the questions. In May 2009, the MP wrote to the school offering to extend the deadline by 20 days. On 27 May 2009, the school replied with evasive answers. On 9 June 2009, the MP wrote to the school, asking for an internal review of the decision to refuse to comply. On 6 July 2009, the school replied with evasive answers, hiding behind spurious exemptions. On 15 July 2009, the MP wrote to the Information Commissioner to complain about the refusal to answer questions. Three months later, on 8 October 2009—one and a half years after the original application and three months after the complaint to the commissioner—the school wrote to reveal that £170,000 had been spent on legal costs. The school still refused to answer the other questions. The Information Commissioner then gave the school until 4 November to answer questions. On 23 November, the Information Commissioner stated: ““Unfortunately, the authority””—that is, the school— "““initially struggled to understand the role of the Information Commissioner’s Office … as regulator of the Freedom of Information Act 2000 … I am, however, pleased to confirm that it now has a full understanding of our role and is working towards providing a full response by the 7th December 2009””." A month later the Information Commissioner made a further statement, saying that, "““it appears that the authority still does not fully understand the role of the ICO. The Commissioner has today therefore issued an Information Notice to the Authority … compelling a Public Authority to provide the Commissioner with a copy of the disputed … information. The Authority has 30 days … from the date of the Notice to comply. Failure to comply may result in the commissioner making written certification of this fact to the High Court … I do however hope that that will not prove necessary””." That was nearly 11 months ago. In May 2010, the Information Commissioner revealed that a freedom of information notice to the school, dated 17 December 2009, had to be cancelled on legal advice because it had been addressed to the school, as against the governing body of the school. On 9 July 2010, the Information Commissioner wrote to the MP to state that the corrected information notice was being appealed by the school. In August 2010, the tribunal dismissed the appeal. The school then offered the Information Commissioner half-answers to the questions asked, which the Information Commissioner regarded as inadequate. The Information Commissioner then gave the school 14 days—as I understand it, to 21 October—to answer. So, it has taken two and a half years to get precisely nowhere on what I regard as perhaps the most significant piece of legislation of the Labour Government in the past 12 years. The school refused to answer the questions, making a mockery of the Act. Today, we are considering giving institutions, which will be the subject of greater private sector influence, an additional 60 days without building into this new power for academies—at least, it is available in the maintained sector—any safeguards to prevent what I referred to happening again in the future. Although I am in favour of the 60-day period, I believe that the Government should now review this legislation with a view to reconsidering the powers available to the Information Commissioner for enforcement of the law. We cannot allow schools and other bodies to make a mockery of the legislation in the way that I have described.