Enforcement activity report

The request was partially successful.

Ganesh Sittampalam

Dear Information Commissioner’s Office,

With reference to our previous discussion of this topic (http://www.whatdotheyknow.com/request/en...), I request a copy of each "automated report concerning the current enforcement activity" produced since you recently started producing them.

Please could you also advise how frequently these are produced and what interval you would consider reasonable for repeated requests for the new reports.

Thanks very much.

Yours faithfully,

Ganesh Sittampalam

Information Commissioner's Office

Link: [1]File-List

4th February 2011

Case Reference Number IRQ0373146

Dear Mr Sittampalam

Request for Information

Thank you for your e-mail sent earlier today, in which you have asked us
to provide you with information relating to “… each automated report
concerning the current enforcement activity”, along with other
information about the frequency of these reports.

Your request has been passed to the Internal Compliance Department, and is
being dealt with in accordance with the Freedom of Information Act 2000
under the reference number shown above.  We will therefore respond to
your request by 4 March 2011, which is 20 working days from the day after
we received your request.

Should you wish to reply to this e-mail please be careful not to amend the
information in the ‘subject’ field. This will ensure that your reply
is added directly to your case. However, please be aware that this is an
automated process; the information will not be read by a member of our
staff until your case is allocated to a request handler.

Yours sincerely

Antonia Swann

Lead Internal Compliance Officer

Information Commissioner's Office

Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Tel: 01625 545894

[2]www.ico.gov.uk

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

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1 Attachment

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4 March 2011

Case Reference Number IRQ0373146

Dear Mr Sittampalam

Further to our email of 4 February 2011, we are now in a position to
respond to your request for information. You requested a copy of all of
the automated enforcement reports that we have recently started producing.
These reports contain information about current, ongoing activity by the
enforcement team and identify all of the public authorities about which we
are currently considering enforcement activity. You also asked us to
advise how frequently these reports are produced and what interval we
would consider reasonable for repeated requests for the new reports.

I can confirm that we currently produce these reports, called FOI
enforcement action log, on a weekly basis. With regard to your question
about what interval we would consider reasonable for repeated requests for
the new reports, we are of the view that, as the reports contain
information relating to organisations that we are only considering taking
formal enforcement action against, these reports, in their current form,
are subject to the exemption at section 31 of the FOIA. We consider that
the section 31 exemption would also apply to any future requests we
receive for these reports. However, we will continue to publish details of
the public authorities that we are monitoring for compliance with section
10 of the FOIA [2]here.

The exemption at section 31 broadly relates to ‘law enforcement’,
and in this particular case we consider the provisions at sections
31(1)(g) and 31(2)(a) and (c) apply. 

Section 31(1)(g) of the FOIA states that:

“Information…is exempt information if its disclosure under this
Act would, or would be likely to, prejudice – (g) the exercise by any
public authority of its functions for any of the purposes specified in
subsection (2)

The purposes referred to in sections 31(2)(a) and (c) are

(a) the purpose of ascertaining whether any person has failed
to comply with the law

(c) the purpose of ascertaining whether circumstances which
would justify regulatory action in pursuance of any enactment exist or may
arise

The purpose of the enforcement action log is to inform our decision making
processes as to whether formal regulatory action is necessary for a
particular public authority. This is very much an ongoing consideration
and the list is updated regularly depending on the status of the
investigations that the enforcement department are undertaking at a given
time. As a result we believe that to release this list could prejudice the
ICOÂ’s ability to conduct our current or future investigations
effectively.

The exemption at section 31 is not absolute, and we have to consider the
public interest test by weighing up factors in favour of disclosure of the
requested information against those in favour of maintaining the
exemption.

Public interest factors in favour of disclosure are:

o The public interest in the ICO being more transparent in relation to
its FOI enforcement activities.
o The public interest in knowing which public authorities are being
considered for regulatory action.

Public interest factors in favour of maintaining the exemption are:

o The public interest in the ICO being able to conduct and conclude
itsÂ’ investigations in a manner that does not prejudice those
investigations.
o The public interest in the ICO maintaining the trust and confidence of
the authorities it regulates. This trust may be adversely affected if
the Commissioner were to publish details of investigations that do not
result in any form of regulatory action or in situations where
concerns are referred to the enforcement team, but no immediate action
is considered necessary and the information is logged for future
consideration.
o When the ICO does take formal regulatory action such as issuing an
undertaking, practice recommendation or enforcement notice, this
information is usually published on our website. Whilst this does not
inform the public which public authorities are being considered for
regulatory action, it does ensure that the public interest in
transparency about which public authorities have been subject to
regulatory action is served.

Having considered all of these factors we have taken the decision that the
public interest in withholding the information you have asked for
outweighs the public interest in disclosing it.  I am sorry, therefore,
that in this instance we are unable to provide you with the information
you have requested. 

We have dealt with your request in accordance with the Freedom of
Information Act 2000. I hope that this response provides you with the
information you require. However, if you are dissatisfied with this
response and wish to request a review of our decision or make a complaint
about how your request has been handled you should write to the Internal
Compliance Team at the address below or e-mail
[3][email address]

Your request for internal review should be submitted to us within 40
working days of receipt by you of this response. Any such request
received after this time will only be considered at the discretion of the
Commissioner.

If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation. To make such an application, please write
to the Case Reception Team, at the address given below or visit the
‘Complaints’ section of our website to make a Freedom of
Information Act or Environmental Information Regulations complaint online.

A copy of our review procedure is attached.

 

Yours sincerely

Andrew Rose

Lead Internal Compliance Officer

Information Commissioner's Office

Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

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mailto:[email address]

Ganesh Sittampalam

Dear Information Commissioner’s Office,

Thanks for your email. I'd like to request an internal review of this response, for the reasons set out below.

I must confess to being rather surprised that you have withheld this information. As you are probably aware, you previously released your "Enforcement action log" to me as an informal resolution to my request for a decision notice on the subject
(http://www.whatdotheyknow.com/request/en...). In doing so, you withdrew your reliance on s31 where you had made similar arguments to those you are now employing (see the original request at http://www.whatdotheyknow.com/request/fo...).

In the earlier stages of my previous request, you released the information I asked for with the names of authorities redacted. Have you considered doing so in this instance? I realise that redacting a weekly report might be rather time consuming, particularly as I am keen to re-request this information in future, so if the outcome of this internal review is that you should release redacted information, I would be happy to discuss what frequency of report would be appropriate.

Even if you don't release any substantive information, it would be informative to be provided with the structure of the report and information like the number of authorities on it. So for example you could provide a single report with just the headings, and a count of the items/authorities in each report.

In any case, I argue that the s31 exemption is not engaged at all, and even if it were engaged the public interest would lie strongly in favour of disclosure.

The only reason I can find in your refusal notice for why s31 is engaged in the first place is the statement about "The public interest in the ICO maintaining the trust and confidence of the authorities it regulates". While it may be the case that public authorities would be unhappy about being publicly named, I don't understand how that would be likely to prejudice your enforcement functions. Indeed, the publicity from being "named and shamed" might well encourage some authorities to improve their performance on their own. The threat of poorly-performing authorities being publicised at an early stage could also act as an incentive to keep standards high in the first place, which surely must be the ultimate goal of the ICO's enforcement activity.

You have mentioned the list of authorities being monitored for compliance with s10. This list is now five months old, despite the fact that the monitoring was only supposed to last for a period of three months. It also only relates only to one specific kind of failure to comply with the act (timeliness). Also, it is unclear to me why you are willing to publish this specific list of authorities but not a more general list.

Your enforcement resources are clearly limited and I argue that there is a very strong public interest in authorities whose performance has given rise to any cause for concern, even if they are not currently a priority for action. The total number of practice recommendations, enforcement notices and undertakings that have been issued is tiny compared to for example the number of authorities against whom you have issued adverse decision notices, your backlog of s50 complaints, or the number of authorities whose own published statistics show that they are consistently failing to comply with the act.

In my experience, it is common for you to seek to informally close complaints and log the issue with the enforcement team. Greater visibility of the process by which the enforcement team operates would increase public confidence that this is not simply a black hole. Also, given that decision notices are publicly available, making your enforcement activity public might make informal resolution more attractive to complainants.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/en...

Yours faithfully,

Ganesh Sittampalam

Information Commissioner's Office

Link: [1]File-List

8 March 2011

Internal Review Case Reference Number RCC0379044

Dear Mr Sittampalam

Thank you for your recent email in which you have requested an internal
review of our response to your Freedom of Information request dealt with
under reference IRQ0373146.

We will respond by 1 April 2011 which is 20 working days from the date we
received your recent correspondence. This is in accordance with our
internal review procedures.

Yours sincerely

Andrew Rose

Lead Internal Compliance Officer

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

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Information Commissioner's Office

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24 March 2011

Case Reference Number RCC0379044

Dear Mr Sittampalam

I write further to my email of 8 March acknowledging your request for an
internal review of our response to your information request, reference
IRQ0373146.

Given the issues raised in this matter, we asked Graham Smith one of the
Deputy Commissioners to review our response to your request. Although
Graham has agreed to review this case, he will not be able to respond by 1
April 2011 as originally anticipated. We expect that the review will be
completed by 15 April instead.

Please accept our apologies for this delay. As I知 sure you can
appreciate, Graham is very busy and we feel that it is important that he
takes sufficient time to consider this matter fully.

Yours sincerely

Andrew Rose

Lead Internal Compliance Officer

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

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Ganesh Sittampalam

Dear Mr Rose,

Thanks for your email. It's no problem to wait a bit for a more considered response.

Regards,

Ganesh

new casework,

Thank you for emailing the Information Commissioners Office (ICO). This is
an automated acknowledgement; please do not reply to this email.

If your email was a reply to an email we sent you it has now been attached
to your case and will be read when your correspondence is allocated to a
case officer.

If your case has already been allocated, the case officer will be in
contact when they have considered your email.
If your email was not a reply to an email from us it will be considered by
our Customer Contact Department and we will respond to you as soon as
possible.

If you need more help, please contact our Helpline on 08456 30 60 60 or
01625 545745 if you prefer to use a national rate number or visit the
Contact us page of our website.

Yours sincerely

Customer Contact Department
The Information Commissioner's Office

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

Information Commissioner's Office

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18th April 2011

Case Reference Number RCC0379044

Dear Mr Sittampalam

I am responding to your request for an internal review of the refusal of
your FOI request to the ICO regarding the ICOÂ’s enforcement action
log. IÂ’m sorry that you have had to wait longer than usual for a full
response because of my absence from the office. Thank you for accepting
that we needed more time.

Because of the lapse of time, I am able to agree that the ICO can release
much more information to you on the grounds that the exemption is no
longer engaged in relation to much of the information on the log as it was
at the time of the request. This is not, however, to say that the
information was not exempt or should have been disclosed at the time of
the request.

At the time of the request, and indeed at the time of the initial response
and when the internal review was requested, the ICO was considering what
action, if any, to take in relation to the public authorities featured on
the log. In my view, the reasons for applying the section 31 exemption and
for maintaining the exemption in the public interest given to you by
Andrew Rose of the ICOÂ’s Internal Compliance Department on 4 March
2011, did apply to much, but not all, of the information on the log.

The key issue here is, as it has been in previous cases, that the
disclosure of information which is under consideration or has yet to be
considered in the context of the potential exercise of the ICOÂ’s
enforcement and regulatory powers would be likely to prejudice the
ICOÂ’s exercise of those functions. The ICO enjoys or relies upon a
constructive, open and honest dialogue with those it regulates in order to
secure the outcomes it strives to achieve, in pursuit of its statutory
responsibilities. That it is able to do so is in the public interest.
Disclosure of the details of those exchanges, including the fact that it
is having those exchanges with identifiable public authorities, would be
likely to prejudice the exercise of the ICOÂ’s functions.

However, that prejudice may largely disappear, or be outweighed by public
interest considerations, with the passage of time. As IÂ’m sure
youÂ’ll be aware, the ICO recently took a number of decisions as a
consequence of the outcome of its section 10 monitoring activity.
Information about those decisions has been put in the public domain by the
ICO, so any likely prejudice which might have resulted from the disclosure
of information relevant to those decisions would, on the whole, no longer
arise.

I am therefore asking the Internal Compliance Department to disclose to
you a redacted version of the Enforcement Action Log as at 4 February
2011.

The redactions (which are few) are made for the following reasons:

-  Detailed information about the status of the case or action required
at the time (“task description” column)

-  Information about the individuals to whom the cases have been
allocated – withheld under section 40(2) FOI Act (“user assigned
to task” column)

-  Recently added cases still under active consideration and/or
awaiting actions or responses (the last four entries)

-  Names of individual officers at public authorities entered in error
and withheld under section 40(2) FOI Act (“submitted about party”
column, page 1)

The colour/shading in the “case instance” column purely relates to
the time since the enforcement case was first opened by the ICOÂ’s
enforcement team, not any priority ranking.

Finally, you may be interested to know that my review has highlighted some
shortcomings in the compiling of this report. We are reviewing whether it
serves any useful purpose in terms of the ICOÂ’s own business needs, so
any future requests for this sort of information or similar reports may
result in a different outcome in terms of what information the ICO holds.
We will also consider the proactive disclosure of any relevant information
about our FOI enforcement activity.

I hope this is helpful. I will ensure that the information to be disclosed
to you as a result of my internal review decision is sent to you very
shortly. Thank you again for your patience.

If you are dissatisfied with the outcome of this review you may make a
section 50 complaint to the ICO.

How to complain
Information on how to complain is available on the ICO website at:
[2]http://www.ico.gov.uk/complaints/freedom...

By post: If your supporting evidence is in hard copy, you can fill in the
Word version of our complaint form, print it out and post it to us with
your supporting evidence. A printable Freedom of Information Act
complaints form is available from the ICO website. Please send to:

First Contact Team
Information Commissioner's Office

Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

By email: If all your supporting evidence is available electronically, you
can fill in our online complaint form. Important: information included in
the form, and any supporting evidence will be sent to us by email.

Yours sincerely

Graham Smith

Deputy Commissioner

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

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  • Attachment

    Redacted version of the Enforcement Action Log as at 4 February 2011.pdf

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18th April 2011

Case Reference Number RCC0379044

Dear Mr Sittampalam

I am writing further to Graham SmithÂ’s response today to your internal
review.

As outlined in Mr SmithÂ’s email attached is a copy of a redacted
version of the Enforcement Action Log as at 4 February 2011.

Yours sincerely

Joanne Crowley

Lead Internal Compliance Officer

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

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