I am pleased to report that the ICO is actively considering the Duchy of Lancaster case. Recently I have been contacted by several people about this case and I think it is right that I keep interested parties updated. I do not want to go into too much detail as it might not help the case.

Today (30 November 2009), I receive an update from the ICO and it prompted me to write back quoting the Defra guidance on the coverage of the Environmental Information Regulations:

“2.23 The Regulations do not apply to any public authority when it is acting in a judicial or legislative capacity. This derives from the provision in the Aarhus Convention that the definition of public authority “does not include bodies or institutions acting in a judicial or legislative capacity”.

For example, Magistrates Courts, Criminal Courts, Coroners and other courts or tribunals, the Council for Racial Equality, Ombudsman, Rent Assessment Panels, Licensing Panels, and Social Services Complaints Panels all carry out judicial or legislative functions. These public authorities are, however, public authorities for the purpose of these regulations to the extent that they carry out other functions, such as the management of their own estate and operations.””

I am very grateful to the ICO official assigned to my case for his detailed consideration of the issues.

For those of you that have been following the Duchy of Lancaster Saga I have a brief update.

“Therefore depending on the verdict, you will receive either:

(1) A much more detailed letter explaining the Commissioner’s view that the Duchy is not a public authority under the Regulations. This verdict can be challenged by judicial review.

(2) A Decision Notice explaining that the Duchy of Lancaster is caught by the EIR and that it must process your request. This can be challenged by either side to the Information Tribunal.”

Email from Information Commissioner’s Office dated 26 November 2009.

Although I am eager to get a decision and the wait can be frustrating, I want to point out that the ICO staff are being very helpful in progressing my case and they appear committed to applying the law correctly to the facts of the case:

“As you are aware (and as your submissions demonstrate) there are a large number of factors that are relevant in this case and all must be considered by me as case officer. I must obtain the facts and apply the law to those facts.”

Section 21 is intended to apply to information that is already reasonably accessible to the applicant, e.g documents published on the internet or in books available to your local library.

Unfortunately, some public authorities are using where the information can be obtained by making a very large number of queries to locator tools.

For example in theory it is possible to obtain the phone numbers of all tax offices using the locator tool on the HMRC website. In practice it is very difficult to find the number for every office and even when you think you might have found them all it would be difficult to be sure that you really have.

I had requested a list of phone numbers and HMRC are trying to use this exemption. I could try entering the name of every town in the UK into the “Enter town” field but I am not sure there is a definitive list of UK towns and even if there was I don’t think ‘Birmingham’ would be on it but there is an entry when you search for Birmingham.

There is however what amounts to a definitive list of UK postcodes so in theory I could conduct a exhaustive search for tax offices, but according to UK National Statistics website there are somewhere around 1.7 million live postcodes so it be wholly impractical to search for each of these one at a time.

The exemption was never intended to be used in situations like this so I have sent HMRC a robust request for an internal review.

I have pointed out that in this case: “information …is not to be regarded as reasonably accessible to the applicant merely because the information is available from the public authority
itself on request, unless the information is made available in accordance with the authority’s publication scheme

I have argued that information that can only be obtained by making a query using the locator tool is only available on request albeit that the database is set up to automatically respond to such requests. As HMRC do not refer to the locator in their publication scheme I argued that the exemption could not be relied upon.

I also wrote:

“I calculate that by manually testing one postcode every two seconds it would take me more than 40 days to test all the postcodes even if I worked 24 hours a day and seven days a week with no breaks. This cannot be considered reasonably accessible.

I hope the Revenue will accept on reflection that the data should be provided to me in a form I can reasonably use, it was certainly the intention of the Act that I would be able to obtain information of this nature.

A lot of people who make FOI requests like to get the data in electronic form and I include myself in that.

Often public authorities are reluctant to provide the information in electronic form perhaps because they would rather it was not republished or perhaps because it is a bit more work (in the short-term). Requesters often quote section 11 of the Act:

“Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely—…the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant,…the public authority shall so far as reasonably practicable give effect to that preference.”

These leaves open the possibility of the public authority arguing that it is not reasonably practicable.

I actually think that it is better to only provide an email address and refuse to provide a postal address. You may need to remind the public authority that you have submitted a valid request for the purposes of the Freedom of Information Act and that they have a duty under Section 1 to supply you with the information requested. This leaves them with no real option but to reply electronically.

Martin Rosenbaum wrote recently published Devolution tensions exposed on the BBC Open Secrets blog:

“I asked the Scotland Office for this material after the commissioner’s judgment was announced. They only agreed to send me hard copies, but someone else has managed to get them to post electronic versions at the FOI site What Do They Know.”

The link was to a response from the Scotland Office I had received where I had simply refused to provide a postal address.

If you look at this response to a Freedom of Information Act request about the tax status of the Royal Family you can see that some of the information has been redacted…

but the authority that responded to the request made a mistake, so when you highlight the paragraph you can read the text they didn’t want you to know about:

You can click on either of these pictures to see a larger image. You can also read the original document – to read the redacted text just highlight the relevant paragraphs with your mouse.

The hidden text exposes the fact that Prince Charles was secretly lobbying to get the rules changed so he could pay less tax.

Hidden text

The hidden text is in red below:

“The suggested amendments are two-fold – one a matter of mechanics to do with Self Assessment and one of substance to do with expenditure met by HRH The Prince of Wales on official engagements carried out by Their Royal Highnesses The Princes William and Harry. Sir Michael Peat, The Prince of Wales’ Principal Private Secretary, has written to Dave Hartnett asking HMRC to consider amending the MOU to recognise this expenditure.”

[MOU stands for ‘Memorandum of Understanding’ – which sets out the basis on which the Queen and Prince Charles pay tax.]

“But, as Sir Michael’s letter sets out, the Princes will increasingly incur expenditure when undertaking engagements on behalf of The Queen.”

“The question of official expenditure by The Princes is not a big issue now, given their other duties. But from next year, it is expected that HRH The Prince William will spend a significant part of his time on official engagements and we need to put the necessary provisions in place in anticipation of that.”

I am normally strongly against Post Office closures as I think the closure of a Post Office can contribute to the isolation of communities and of individuals. We all have to recognise though that providing a Post Office costs money and the money has to come from somewhere.

I have recently obtained figures from the Royal Mail Group about the cost of running the Court Post Office at Buckingham Palace. The cost is paid for by Grants-in-Aid from Government Departments i.e. the tax payer.

The total cost for the year 2008-2009 was over £560,000. The postage cost was just under £255,000 while staffing costs exceeded £260,000, the remainder consisted of administration, travel and equipment costs. At a time when the public sector is looking to make savings and get the best value for the tax payer, it is amazing that the Court Post Office is still open. The postage cost would be similar whether or not the branch remained open but other costs would be drastically reduced. I estimate that the closure of the Royal Post Office could save the tax payer in the region of £260,000 to £300,000 a year.

Let’ put that saving into context, it would cost £180,000 to keep around 10 rural branches open at a cost of £18,000 per branch. Think of the difference that would make to those communities.

In March 2008, Pat McFadden said “the average cost to Post Office Ltd of post offices that are scheduled for closure is £18,000 per branch per year. If one is saved, therefore, the Post Office must find that saving somewhere else.”[1]

Pat McFadden was at the time the Minister of State for Employment Relations and Postal Affairs.[2]