Microsoft Word - Thackeray IR - FINAL draft response.doc

Information Access Team
Information Management Service
Financial & Commercial Group
  2 Marsham Street, London, SW1P 4DF
Switchboard 020 7035 4848
E-mail: [email address] Website: www.homeoffice.gov.uk

Mr. William Thackeray
Case Ref: CR 11139
[FOI #7571 email]
Date:
29th May 2009

Dear Mr. Thackeray,
I write further to my email of the 13th May 2009 and with reference to your request
for an Internal Review into the decision and handling of your Freedom of Information
Act (the Act) request concerning the details of gifts, donations and offer of hospitality
made to the Home Office by Scientology organisations over the past five years.
I have now completed a full and independent review that has covered the procedural
handling of your request and of the reasons and rationale behind the decisions cited
in the response to your request. This review has been conducted on its own merits
and all areas of this request have been re-considered as part of this Internal Review
process.
In your email to the Home Office on the 17th February 2009, I noted that you
requested our review cover the use of the provisions of section 12 of the Act, and
that the advice you had been given to help redefine your request did not allow you to
do so. Before I present my consideration regarding this decision, I would like to
briefly cover the procedural aspects of this review.
The substantive response letter dated the 17th February 2009 meets our obligations
under s17 of the Act. The letter explains the decision to invoke the cost-limit
exemption provisions of s12 of the Act and cites the correct provision of the Act on
which this decision had been based.

The letter provided an explanation as to why this decision was made and explained
your right of complaint to request an Internal Review. This letter meets our
obligations under s17(1), (5) and (7) of the Act and section XI (para. 50) of the
section 45 Code of Practice.
This letter also meets with our duty to advise and assist an applicant under s16 of
the Act and s2 of the Secretary of State’s Code of Practice (specifical y paragraph
14) in that this letter offered advice as to how you might be able to redefine the
scope of your request to access information retrievable within the cost limit.

The Home Office has also met our duty under s10(1) of the Act in that you were sent
a response on the tenth working day following the date of receipt.
I am satisfied that the Home Office has met our procedural obligations under the Act.
In addressing your request for this Internal Review, I have reviewed the initial
considerations, the decision-making processes and the substantive response to your
request, and I am of the opinion that the provisions of s12(2) of the Act were applied
correctly. I have included my considerations regarding the use of this provision in
ANNEX A to this letter.
In summary, therefore, I have decided to uphold the original decisions and the
provisions applied in all aspects of this request.
You may be interested to learn that the Cabinet Office has recently published a list
of hospitality received by the board members of various government departments in
2007 and includes Home Office Board members. This can be viewed here -
http://www.cabinetoffice.gov.uk/propriety_and_ethics/civil_service/hospitality.aspx
The Home Office has recently released some information from our Gifts and
Hospitality Registers in response to another Freedom of Information Act request.
This information is available on the Home Office website -
http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-
information/foi-archive-about-us/11482_gifts_hospitality_received
Al ow me to apologise for the delay in providing you with the findings of this Internal
Review. I hope that this has not caused you any undue inconvenience.
Thank you for your interest in the Home Office.
Yours sincerely,
Ian Lister
Information Access Consultant
Information Access Team

ANNEX A – Internal Review Considerations
Section 12 of the Act provides that:
(1) Section 1(1) does not oblige a public authority to comply with a request for
information if the authority estimates that the cost of complying with the request
would exceed the appropriate limit.
(2)  Subsection (1) does not exempt the public authority from its obligation to comply with
paragraph (a) of section 1(1) unless the estimated cost of complying with that
paragraph alone would exceed the appropriate limit.
(4) The Secretary of State may by regulations provide that, in such circumstances that
may be prescribed, where two or more request for information are made to a public
authority –
(a)  by one person, or
(b) by different persons who appear to the public authority to be acting in consort
or in pursuance of a campaign,
the estimated cost of complying with any of the requests is to be taken to be the
estimated total cost of complying with al  of them.
(5)  The Secretary of State may by regulations make provision for the purposes of this
section as to the costs to be estimated and as to the manner in which they are to be
estimated.

The provisions of section 12 exempt an authority from complying with section 1(1) of
the Act – an applicant’s right to be told if the information they have requested is held
by the receiving authority (s1(1)(a)), and to have that information provided to them
(s1(1)(b)) – where it is believed that the cost of complying with that request would
exceed the appropriate limit.

In their recently published guidance entitled ‘Using the Fees Regulations’, the
Information Commissioner’s Office (ICO) have confirmed that an authority does not
have to make a precise calculation of the costs of complying with a request in
deciding to cite s12, but must make a reasonable estimate based on the costs it
reasonably expects to incur in:

-
determining whether it holds the information
-
locating the information, or a document containing it;
-
retrieving the information, or a document containing it; and
-
extracting the information from a document containing it.

Where the estimated costs exceed the appropriate limit, the receiving authority is not
obliged to communicate the information to the applicant. There is also no obligation
to comply with the request up to the point at which the appropriate limit has been
reached. There is, however, stil  an obligation to confirm or deny whether the
information is held unless to do this would itself exceed the appropriate limit.
The “appropriate limit” at which this provision of the Act can be engaged is specified
by the Secretary of State in the Freedom of Information Appropriate Limit & Fees
Regulations 2004 – the regulations referred to in s12(5) of the Act. For central
Government departments, the appropriate limit is set at £600. The approved hourly
rate is currently set at £25 per hour, regardless of who deals with the request. This
equates to twenty-four hours of work locating, retrieving, extracting and
communicating the information requested.

In the email to you on the 17th February 2009, it was estimated that the appropriate
limit would be “significantly” exceeded by searching for the information you had
requested. As a result, the response outlined that the Home Office was not able to
confirm that the information you requested is or is not actually held. The email also
gave a brief explanation as to why the department was not able to provide you with
confirmation as to whether or not this information is held.

The Home Office Human Resources Directorate owns and maintains the
department’s policy concerning the acceptance of gifts, hospitality and rewards. This
policy states that Heads of Unit are required to keep a local record of all offers of a
gift or hospitality made to their staff, and should record all offers made to their
members of staff and whether the offer was accepted or declined.
The Home Office is therefore not required to keep one central register of all the
offers of hospitality. Whilst I acknowledge your comments regarding other public
bodies’ decision to publish their own central register on their website, the Home
Office is not required to maintain such a register. The creation and publication of a
central register may well be something that the department considers in the future,
particularly as the acceptance of gifts, hospitality and rewards in general is indeed a
matter of public interest.

As I mentioned previously, your request is unambiguous and you have detailed
precisely what information you are asking for – specific organisations over a specific
time frame. This means that we are looking for particular records and pieces of
information. This information wil  (if it is indeed held) be contained within documents
and records that also contain information that is not related to your request. Our
searches wil  therefore have to locate all records that are likely to contain the
information you have requested, and then locate and extract that data from those
records so that it can be presented to you.

Given that records of gifts and hospitality are held by each individual unit, this means
that many officials wil  have to work concurrently to locate the information held by
their unit before it can be presented for collation and presentation. The number of
different units within the Home Office means that it easy to attract the cost-limit
provisions of the Act when undertaking a department wide search for such specific
information.

As an example, the Crime Prevention Group in the Home Office has 30 separate
policy areas, each with several teams / units working within them. If we assume that
there are ninety teams and it takes them only 15 minutes each to retrieve and
extract the information requested, this alone would take over 22 hours to achieve.
Even by using more conservative estimates, it quickly becomes apparent that the
work required in retrieving and extracting the information from across the whole
department would easily exceed the Appropriate Limit of s12.
If, for example, you requested all gift and hospitality entries on these registers over
the course of a year, then we would not have to search through each register to
locate the specific details you have requested, and simply provide the register for
that year. In other words, we would not spend as much time retrieving and extracting
only the details you have requested here.

I would like to refute the implication that Home Office refused to handle your request
on the grounds of public interest - this was not the case. Public interest
considerations would only usually be cited in deciding whether or not a qualified
exemption under Part II of the Act applies to whatever information is held by an
authority, once it has been located.
It may be in the public interest to release whatever information the Home Office
holds regarding gifts made by Scientology organisation, but we can only decide that
once the information has been located and reviewed. In this instance, we have not
been able to locate the information because of the estimated costs of doing so.
I would also disagree with you that our response to your request be construed as
either denying access to the information held on Home Office gifts and hospitality
registers. Neither should our response to your original request be interpreted as
attempting to obfuscate the matter. I have hopefully been able to clarify why the
decision to cite s12 of the Act was made, but I would again like to stress that we are
not trying to say that you cannot access any information that might be held. We are
asking you to narrow the scope of your request to allow us to locate any such
information without exceeding the cost limit.
The letter sent on the 17th February 2009 provided some advice on how you might
be able to redefine your request so that the cost-limit provisions of s12 of the Act
were not engaged. It advised that by specifying particular directorates, agencies or
groups within the Home Office that you would like us to search for this information, it
would enable us to undertake a more targeted search for some of these records
without s12 of the Act applying.
I acknowledge the fact that you may not know which departments, if any, have
received any gifts or offers of hospitality in regards to Scientology organisation, but I
would encourage you to consider which parts of the Home Office would or would not
be likely to hold this information. In other words, there may be parts of the
department that would not be likely to have ever had any contact with any
Scientology organisations, and even less likely to have been approached with offers
of gifts or hospitality.
For example, you may feel that it is extremely unlikely that offers of gifts may have
been made to any of the Home Office Delivery Agencies, these being the UK Border
Agency (UKBA), the Criminal Records Bureau (CRB), and the Identity & Passport
Service (IPS). You may consider it unlikely that the Home Office HR Directorate
and/or Office for Security and Counter-Terrorism (OSCT) would hold any relevant
information. UKBA forms the largest part of the Home Office and it may be likely that
the cost limit could apply to search their records alone.
I would like to remind you that if you break your request down into a series of smaller
requests, we might, depending on the circumstances, decline to answer if the
aggregated cost of complying exceeds £600, as permitted by s12(4) of the Act and
the Appropriate Limit & Fees Regulations. Furthermore, please be aware that any
refined request you make may continue to exceed the cost limit, or may be subject
to one or more of the exemption provision contained within Part 2 of the Act.
I look forward to hearing from you should you decide to redefine the scope of your
request.

ANNEX B – Your Right of Complaint
If you are stil dissatisfied with this decision you may make an application to the
Information Commissioner for a decision on whether the request and this review
have been dealt with in accordance with the requirements of the Act.
For information on how to make an application to the Information Commissioner’s
Office, please visit their website at http://www.ico.gov.uk or write to:
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF