Welsh Government Breaches FOI Act22 July 2010 On 12 May 2010 Pro-Imaging wrote to the Welsh Assembly Government to complain about the terms and conditions of a photography competition they had organised; it is entitled Capture the Heart and Soul of Wales. Following our complaint the Welsh Assembly Government altered the terms and conditions of the competition and in doing so referred to our Organisers Guide to the Bill of Rights. We published the guide to assist organisations set terms and conditions that respect the rights of the creative community and we commend the Welsh Assembly Government for referring to it. From that they copied the terms and conditions that would protect the Welsh Assembly Government from the submission of entries that, for example, would infringe the rights of others. Unfortunately they did not follow the other important guidance that if implemented would have protected the entrants rights as set out in the Bill of Rights. They set terms and conditions that granted over thirty organisations the right to use winning and shortlisted images to promote the interests of each organisation for five years. On 10 June 2010 we again wrote to the Minister concerned, Jocelyn Davies, the Deputy Minister for Housing and Regeneration. We detailed the terms and conditions that would need to be changed to comply with the Bill of Rights. At the same time we included a Freedom of Information (FOI) request asking for information concerning all the organisations that obtained rights to use the images, such as the name of each organisation, what they were - private or public, income in the last year, etc. We were unable to discover who these organisations were from the information published on the competition pages. The Bill of Rights requires that all organisations obtaining rights to use images submitted to a competition be named. Two weeks later, having failed to get any response to our FOI request, we wrote again to Jocelyn Davies to bring to her attention the guidance issued by the Information Commissioner stating that FOI requests should be acknowledged and a date given by which the information will be provided. The FOI act requires that information requested be provided within 20 days, or a reason given as to why it is exempt for disclosure. The Minister also failed to respond to or acknowledge our second email. Information Commissioner's Office ContactedWe were disappointed that the Welsh Assembly Government had failed to respond to both our requests for information. However, we knew that our emails requesting information had been read by the Minister, and we have automated read receipts confirming that. We contacted the Information Commissioners Office (ICO) on 21 July 2010 to seek guidance on what we should do next. We were advised by the ICO that as our emails had not been responded to, and that we had read receipts confirming they had been read, that the Welsh Assembly Government is in breach of the Freedom of Information Act. We were further advised that our only recourse is to lodge a formal complaint with the Information Commissioner who will act on our behalf. We have now lodged a formal complaint with the Information Commissioner. We also sought advice from the ICO regarding copying the formal complaint to the Welsh Ministers concerned, the ICO confirmed that doing so may help to progress matters. Following our contact with the ICO we noted that the Information Commissioner had issued a press release that day stating that the ICO is now taking a tougher approach to FOI enforcement. Formal Complaint Submitted to ICOWe submitted our formal complaint to the Information Commissioner's Office on 21 June 2010 and have reproduced the text below - "Please find attached a completed Freedom of Information Complaint form. The complaint is in respect of a request for information made to the Welsh Assembly Government’s Deputy Minister for Housing and Regeneration (Jocelyn Davies). The information requested concerns a competition for which her portfolio had responsibility. I submitted the request for information on behalf of Pro-Imaging, an organisation of which I am a member. The request was also copied to Welsh Assembly Minister for Heritage, Alun Ffred Jones. The request (attachment two) was made on 10 June 2010 by email for which we received a read receipt (attachment three) confirming that our request had been read. To date we have had neither an acknowledgement nor a response to our request. On 24 June 2010 we wrote again (by email – attachment 4) to the Minister to draw to her attention to Awareness Guidance 11 published by your office. This guidance document recommends that public authorities acknowledge FOI requests and let the applicant know when they might receive a full response. We also have a read receipt for this email, see attachment 5. There has been no response to this email either. We trust that your office will ensure that the Welsh Assembly Government is instructed to comply with the provisions of the Freedom of Information Act. We note that today, 21 July 2010, the Information Commissioner’s Office announced in its press release that it is taking a tougher approach to FOI enforcement. We welcome this initiative and hope that it leads to the FOI act being treated with due diligence by those public authorities that consider the ‘public right to know’ too troublesome. We have copied this email to the two Welsh Assembly Ministers concerned." Department of the First Minister and Cabinet RespondsWithin hours of submitting our complaint to the ICO and copying it to the Welsh Assembly Government Ministers we received a written response. It came from the Department of the First Minister and Cabinet of the Welsh Assembly Government stating that our complaint to the ICO is being looked into as a matter of urgency. The letter went on to offer an apology that our requests were not acknowledged. It also said that the handling of our request fell below the standards that the public rightly expect to be applied. Pro-Imaging welcome the expression of regret by the Department of the First Minister and the Cabinet. We were also informed that our request has now been dealt with and that we should receive the information we requested shortly. Pro-Imaging is now content that the matter is receiving the attention it should have received from the outset and are grateful for the intervention of the Department of the First Minister and Cabinet in ensuring that our request is progressed. Conclusions About the FOI Act We are concerned about the operation of the FOI act in general. Our experience is that its requirements are frequently not adhered to. Whether the difficulties we have encountered are the result of maladministration or other factors such as inadequate resources we are unable to say. Our concerns are underlined by the Information Commissioner issuing a press release on 21 July 2010 setting out the "tough" action his office will take to ensure that public authorities meet the requirements of the legislation. Amongst the measures set out by the Information Commissioner's Office as part of this new approach they made the following statement - "Many authorities are already meeting the standards expected of them, but for those that are not this policy will provide the framework within which we can take action. Specifically, where authorities repeatedly or seriously fail to meet the requirements of the legislation, or conform to the associated codes of practice, the ICO will take regulatory action" Our frustrations with the operation of the FOI act, founded on similar problems with the act on other occasions, prompted us to write this detailed report. This report is a description of the reasons for requesting the information, also of the chronological sequence of events, and records our experience of the operation of the Freedom of Information Act in this particular case. Prior to receipt of the response from the Department of the First Minister and Cabinet our report had been completed and awaited publication. It has now been updated to reflect the fact that following our complaint to the ICO our request is now being dealt with. Our view is that whatever has gone wrong in this case is a matter of public interest, and that detailing our experience in this instance, and the actions we took, may be of benefit to others who use the act, or have to comply with it. We have written to the Department of the First Minister and Cabinet in the Welsh Assembly Government to draw the attention of that office to this report. Correction by Department of the First Minister and Cabinet22 July 2010Following publication of this report the Department of the First Minister and Cabinet have written to us to clarify one point. In their email they state - "Although you had not been sent acknowledgements to your e mails, work to process your request was already well under way before I made enquiries following your complaint yesterday. Hence my reference to the response being in the final stages of preparation." Pro-Imaging thank the Department for the First Minister and Cabinet of the Welsh Assembly Government for clarifying this point and we look forward to receiving the information we requested shortly. Finally, to round off this report, we have listed below the full text of the email in which we originally made our request for information. Our Freedom of Information RequestOur Freedom of Information request was sent to the Welsh Assembly Government on 10 June 2010. It was addressed to the Deputy Minister for Housing and Regeneration, Jocelyn Davies, and copied to the Minister to whom she reports, Alun Ffred Jones, the Minister for Heritage. We reproduce it in full below to show that the information we requested -
"Thank you for your reply (as attached) concerning the terms and conditions of the above competition and for considering the Bill of Rights Campaign’s position. We note some improvements in the treatment of entrant’s intellectual property rights. However, the new terms and conditions fall a long way short of complying with the requirements of the Bill of Rights. We have updated our report but for ease of reference I have noted our criticisms below, followed by a Freedom of Information request. The new terms and conditions require entrants of winning or shortlisted images to grant The Valleys Heart and Soul of Wales and Sustrans usage beyond that needed to promote the contest. Winning and shortlisted images can be used as follows;
The above uses are not constrained to promoting only the competition; the images are being used to promote the interests of the two named organisations, The Valleys Heart and Soul of Wales and Sustrans, without any payment to the creator of the winning or shortlisted submissions, in contravention of the Bill of Rights. The Bill of Rights has more detail regarding the above issues. We note that The Valleys Heart and Soul of Wales, otherwise known as The Valley's Partnership, consists of over thirty partners, including the Welsh Assembly Government, Local Authorities, Assembly-sponsored agencies and third-sector organisations. In effect the new rules still permit all winning and shortlisted images to be used for marketing purposes by all the organisations concerned (over 30 of them) just as before with the exception of the five year limit. We are disappointed that a government should conduct its business in this fashion by seeking to grab rights from those of its citizens who do not understand the value of their rights, or even that they are being exploited. We would ask you again to consider the terms and conditions you employ for not only this contest, but all contests organised by publicly funded bodies in Wales which require entrants to submit creative works. We believe public bodies should set an example to the private sector, not compete with it in rights grabbing. We look forward to your responses to this critique of the revised terms and conditions in due course. We would be grateful if you could supply information, under the terms of the Freedom of Information Act, concerning the organisations that collectively, form The Valleys Partnership, also known as The Valleys Heart and Soul of Wales. Please provide for each organisation that is a partner in The Valleys Partnership; 1. Its name, 2. Purpose, 3. Whether, private, public, third sector, or other category, 4. Source of funding, public, private, or both, 5. Total funding/income in the last accounting year. Depending on the responses received we may have further FOI requests to make. We look forward to your reply to this email in due course." Pro-Imaging will publish such information as it receives concerning the above request.
|
| < Prev | Next > |
|---|
