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FEATURES - THE LONG WALK TO FREEDOM

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As councils quake before an expected deluge of Freedom of Information requests, Graham Smith has complete faith in ...
As councils quake before an expected deluge of Freedom of Information requests, Graham Smith has complete faith in their ability to cope. Jennifer Taylor meets the man behind the act

Solicitors at councils around the country are braced for a flood of challenges as the Freedom of Information Act 2000 beds in.

But they can take some comfort in knowing one of the people behind its implementation is no stranger to local government.

Deputy information commissioner Graham Smith began his 20-year local government career as a trainee solicitor with Dorset CC, followed by stints at Bradford City Council, Bolton MBC and Oldham MBC, where he was promoted to assistant chief executive, legal and democratic services.

Oldham's chief executive Andrew Kilburn says: 'Graham is a highly astute and creative lawyer. He is also one of those people you want working with you - his sense of humour and appreciation of his colleagues are invaluable qualities.'

He adds: 'He was a loss to Oldham but I can think of no one better to handle the demands of the Freedom of Information Act. He will have a clear sense of purpose, informed by his many years experience in local government.'

While the next logical career move would have been to seek out a chief executive position, Mr Smith had his sights set elsewhere. He says: 'I wanted to do something different, staying in the governmental and regulatory field but with a wider geographical remit than a single local authority area.'

The job of deputy commissioner at the Information Commissioner's office in Wilmslow, Manchester, fits the bill, particularly as he wanted to stay in the north of England.

When he was appointed, the act had been passed but an implementation timetable had not been settled. Mr Smith's job was to lead the development of the commission's functions in relation to promoting and enforcing the Freedom of Information Act.

Now the act has come into force, the Information Commission has two roles. First, it has a duty to investigate complaints from people who are dissatisfied with how their council dealt with a request for information.

Second, it has enforcement powers, which it would use if a council consistently failed to fulfil its legal obligations. This could be, for example, consistently missing the time limit of 20 days to respond to a request, or consistently failing to give adequate reasons for refusing access to information.

Decision notices are legally binding and, unless there is a successful appeal against them to the information tribunal, a failure to comply can be treated as a contempt of court.

While Mr Smith understands the concerns that the act simply imposes more legal obligations on councils, he says: 'It is as much about public relations, customer care and citizen engagement as it is about legal compliance. There are going to be very few cases where the legal interpretation of the provisions of the act are critical to the outcome of the request for information.'

But he adds: 'As a former local authority lawyer myself, I can understand the nervousness.'

Rather than becoming overwhelmed by the thought of a flood of requests, Mr Smith says councils should remember they already give out vast amounts of information and should continue to do so. The act will only come into play when a council is reluctant to give out information, and they will have to justify this.

So what is the point of the act, if councils are, basically, doing it already?

Mr Smith says: 'Rightly or wrongly, there is a considerable amount of distrust of public authorities, including local government . . . and the position isn't getting any better. One potential benefit for local authorities of freedom of information is to establish or rebuild the trust of citizens in local authorities, and in elected members and officials.'

He adds that, over time, the Freedom of Information Act should drive up standards of openness and transparency in council decision making.

He says: 'The government's policy aspiration is that, in turn, it will lead to greater engagement in local democratic processes by ordinary citizens.'

But how will it be used, and by who? The first thing to remember, says Mr Smith, is that much of the information required from councils will fall under the act's sister regime, the environmental information regulations.

Put together, he expects the two regimes to be used by people concerned about developments in their area, particularly those with an environmental impact.

Parents may use the act when choosing a school, and potential users of social care and housing services may use it to find out information about policies and the way they are implemented.

Vexatious or repeated requests are an obvious concern and the act says councils do not have to comply with them. But Mr Smith says there is a danger that councils may overlook a genuine request because it has come from a serial complainer, and so fail to meet the legal obligations of the act.

'I know from my own experience that all local authorities have regular correspondents who they may regard as serial complainers,' he says.

'It is going to be very difficult to successfully argue that a request is vexatious when somebody is making a request for the first time. There will usually be a pattern of behaviour, which provides evidence that a request is vexatious,' he adds.

Although difficult to define, a request could be considered vexatious if it is clear the intention is to disrupt the business of the council. Or it could be judged vexatious if handling the request would damage the business of the council, even if that is not the intention of the requester.

But what about business partnerships? Private companies are not subject to the act, but will they worry about opening up their private business deals to their rivals?

Evidence from the US, Canada and Australia shows the business community is a major user of freedom of information laws to find out information about existing contracts.

But Mr Smith predicts this will not lead to a decrease in partnerships with the private sector. Rather, he says, it 'will just become another factor in relationships between local authorities and private sector partners'.

Councils also need to be careful of exemptions - cases where the information does not have to be supplied - because only a small number apply to councils, the majority of exemptions apply to central government.

Mr Smith says: 'If they are claiming an exemption, they have to explain to the requester why they believe the exemption applies.'

Individual councillors are not subject to the act, but the council may hold information about them which would be subject to it. The same principles apply to council officers. Information on expense accounts, job titles and appointments to outside bodies should be provided, but data that would impinge on the privacy of the individual may be exempt.

Mr Smith says: 'We expect to issue some guidance on the position of elected members under the Freedom of Information Act in the coming months.'

He adds: 'We may see some interesting cases emerge before very long. But I think a better test of the success or otherwise of freedom of information laws will be the long-term impact. Whether they lead to greater openness and transparency in local authority decision making and the management of their business. And also whether they affect the way citizens regard and engage with their councils.'

Information overload - shred or store

-- Now is a good time for councils to put their house in order and throw out documents they do not need

for business or are not legally bound to keep. Not only is it costly to hang on to useless information, but once

a request had been made, 'it is a criminal offence to destroy, deface or alter that information with a view

to avoiding compliance with the request', says Mr Smith.

-- Councils should have a clear policy on the retention and disposal of information, including e-mails. As a general rule, information needs to be retained if it is evidence of a background to policy development,

to decision making, or to some kind of audit trail. Other information that is not required for business purposes ought to be disposed of after a period of time.

-- Over the coming months, councils will learn how to use the act. The information commission has put out general guidance but, now the act has gone live, it cannot provide advice to individual councils. Mr Smith explains: 'We can't give advice to any local authorities as to whether we think they have been reasonable in the way they have handled a request, because any request could generate a complaint that we would have to adjudicate on.'

Graham Smith in 60 seconds

Education

Law degree at Sheffield University, Solicitors' finals at the College of Law

in Chester

Jobs

Trainee solicitor at Dorset CC, solicitor jobs at Bradford City Council, Bolton MBC and Oldham MBC, where he was promoted to assistant chief executive, legal and democratic services

Speciality areas in local government

Child protection, the Children Act (1989 and 2001), housing and education law

Hobbies

Travelling, food and wine

In a nutshell

Has a reputation for a placid demeanour, but says: 'Injustice makes me angry.'

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