FOI Man

May 15, 2013

Information Commissioner signals new approach to vexatious requests

Filed under: Environmental Information Regulations,Exceptions,Freedom of Information Act,Vexatious — FOIMan @ 8:56 am
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FOI Man reviews new guidance from the Information Commissioner around the controversial issue of vexatious requests.

Ever since the important decisions made by Judge Wikeley in the Upper Tribunal earlier this year, it has been inevitable that the Information Commissioner would have to change his approach to the use of the vexatious provision within FOI. Combined with suggestions in the post-legislative scrutiny last year that it should be easier for public authorities to refuse vexatious or frivolous requests, the Commissioner’s relative reticence in his guidance and decisions appeared out of step with political and legal developments.

So today, the Information Commissioner’s Office (ICO) has published new guidance on Dealing with Vexatious Requests (section 14(1)), as well as on the related subjects of Manifestly Unreasonable Requests (regulation 12(4)(b) of the Environmental Information Regulations) and Repeat Requests (section 14(2)). And the approach of the Commissioner appears to have changed fairly radically. The guidance starts strongly by stating that:

 “…public authorities ought not to regard Section 14(1) as something which is only to be applied in the most extreme circumstances, or as a last resort. Rather, we would encourage authorities to consider its use in any case where they believe the request is disproportionate or unjustified.”

The emphasis now is on requests which “cause a disproportionate or unjustified level of disruption, irritation or distress”. Out have gone the Commissioner’s notorious 5 questions. In their place come 13 – count ‘em – 13 “indicators” based on the ICO’s experience of dealing with section 14. These aren’t “qualifying criteria” and authorities are discouraged from spending too much time trying to fit the facts to them. It is stressed that they are there purely as a handy guide.

The guidance suggests a process for establishing if a request causes a disproportionate or unjustified level of work. Authorities should:

  1. consider the purpose of the request if apparent and any wider public interest
  2. balance this against the impact on the authority
  3. take the context and relevant history into account

The ICO have taken some key areas of contention and talked about how they might be affected by this new change in emphasis.

Burdensome requests should if possible be refused under section 12 (the acceptable cost limit). However, following on from last year’s Salford City Council v Information Commissioner Tribunal decision, the ICO now accept that section 14 could be used to ‘plug the gaps’ in the fees regulations, for example, where redaction would take a long time (redaction can’t be included in cost estimates for the purpose of section 12). It is clear though that the ICO will take some convincing in particular cases before accepting this use.

Round Robins, requests sent to several authorities at once, are mentioned. Public authorities can point to the fact that a request has been sent to other organisations, but the judgment as to whether a request is vexatious must only be made on the basis of the burden on themselves.

Controversially, perhaps, “fishing expeditions” are singled out, and journalists identified as the main perpetrators. This common tactic – where a requester makes a very broad request in the hope of catching a juicy titbit in their net – is widely criticised by public bodies, and one senses that the Commissioner has finally found a way to offer a modicum of reassurance to authorities on this issue. Whilst the Commissioner stops short of saying that all such requests will be vexatious (and indeed adds the usual caveats), it is interesting that the practice is highlighted as an area that might legitimately attract the use of section 14.

The guidance isn’t all one way. Authorities are warned that they need to “absorb” a certain amount of disruption and annoyance. And the guidance often seems to go out of its way to persuade public bodies to try just about anything else to avoid section 14. A whole section is dedicated to “Alternative approaches”. Nonetheless, the guidance does seem to indicate a significant change of emphasis from the ICO, and one that will be welcomed by many public authorities.

If you’re still hungry for more after all 37 pages on section 14(1) of FOI, there is still the guidance on manifestly unreasonable and repeated requests to digest. Handily for both the ICO and busy FOI Officers, Judge Wikeley found that the exception for manifestly unreasonable requests in the EIR should be interpreted in the same way as section 14(1) of FOI. So the first part of the ICO guidance says just that – if you think a request for environmental information is effectively vexatious, you should follow the guidance on vexatious requests under FOI.

It does however spend more time considering how the exception should be applied to requests that would be expensive to answer. In a nutshell, there will be circumstances where it is appropriate to refuse burdensome environmental requests under this provision (as Judge Wikeley noted in Craven), and section 12 (and the related fees regulations) of FOI may provide some pointers, but authorities should expect to provide more environmental information than they would other information.

The guidance on repeated requests (FOI section 14(2)) uses new improved examples to make the same points that have been made before. There is nothing fundamentally new here to take on board.

Interestingly, tied in with all this new guidance for public authorities is a guide for requesters on How should I word my request to get the best result? How can I describe it? It’s…it’s…well, it’s a sort of Code of Practice for requesters on the best ways to avoid being labelled as vexatious. That reminds me of something…. (see Recommendation 7)

Anyway, the guide contains some handy dos and don’ts and advises requesters that their request will be more effective if it is CLEAR, SPECIFIC, FOCUSED, UNTHREATENING. Whilst those are the ICO’s capitals, many FOI Officers would probably add SPARSELY CAPITALISED. Seriously though, it will be helpful if more prospective requesters can be pointed towards guidance like this.

So overall this new guidance will be welcomed by FOI Officers, though with some reservation. Whilst it answers a lot of questions, some may well ask how a single sentence in the Act can require so many pages of explanation. There are points where the ICO appear to want to have their cake (to be seen to encourage public authorities to utilise this provision) and to eat it as well (to be seen to discourage its use). One can understand why the regulator has difficulty here, but it limits the comfort that might be offered to authorities by this guidance. And until we see decisions of both Commissioner and Tribunals backing the approaches spelt out here, many will remain nervous of using this provision. But this is a significant step in the right direction.

April 29, 2013

Exact salary should be disclosed says Tribunal

Filed under: Freedom of Information Act,Personal information — FOIMan @ 12:48 pm
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FOI Man reports on a Tribunal decision that could change the way that public authorities treat requests for salary information of senior officials.

A new decision from the First Tier Tribunal threatens to overturn conventional thinking on disclosure of salary information by public authorities. In the decision, which relates to NHS Surrey, the Tribunal upholds an appeal against the Information Commissioner’s decision which supported the right of the public body to provide salary information relating to their Chief Executive only within a £5,000 band.

The decision contradicts the Commissioner’s current guidance which promotes the £5k band approach. The key issue in cases like these is that of balancing the requirement for openness in FOI with the protection that the Data Protection Act gives to individual employees.

The Tribunal cannot see how expressing a salary as an exact figure is any more risky than expressing it within £5k bands. It agrees that even very senior public employees are entitled to a private life, but comments:

“The Tribunal simply cannot accept that anyone in such a role would feel the slightest distress, or consider that there has been any intrusion or that they would be prejudiced in any way by such information. From the perspective of the individual such information is essentially trivial; indeed, in other European societies, such information would be routinely available.”

When FOI first came into force, even publishing in £5k or £10k bands would have seemed radical, so this is just the latest development in the evolution of transparency around salaries. Secrecy around salaries has always seemed odd to me – after all most jobs are advertised with some indication of salary, and certainly if you can publish information within £5k, I can’t see what possible harm could result from publishing an exact salary in most cases. In my view a decision along these lines was inevitable at some point.

That doesn’t mean that there won’t be some resistance to disclosure of exact salaries of senior officials in the coming months. And there may well be circumstances in which it is justifiable. But I suspect that sooner or later this will become the accepted norm.

April 17, 2013

Game, Dataset and Match

Filed under: Amendments,Freedom of Information Act,Open Data,Re-use and Copyright — FOIMan @ 8:47 pm
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FOI Man highlights forthcoming changes to FOI and provides some hints and tips for public authorities on how to deal with them.

Last year, the Protection of Freedoms Act was passed. Amongst the changes it brought in, were a small number of amendments to the Freedom of Information Act.

But we’re still waiting for most, if not all, of those changes to come into force. To bring them into force, the Government has to lay a commencement order before Parliament…and this is yet to happen. It was expected that the commencement order would be laid last month, bringing the changes into force on 1 April. But this has now been delayed, as reported by the Information Commissioner’s Office earlier this month.

The most significant change is the requirement on public authorities to release datasets in a reusable format, and to publish disclosed datasets in their publication schemes. In my latest article for PDP’s Freedom of Information Journal, I’ve written about these requirements and how to comply with them. (And don’t forget also my report on open data work at Southampton University, which contains further tips on managing and publishing open data).

Personally, I don’t think public authorities should worry too much about these changes. There are a few reasons for this. Firstly, as I commented when the Bill was first published, the effect of these changes will be very limited in my view – they change very little. Public authorities already have to provide information in the format requested “so far as reasonably practicable”; I’ve never been convinced by Francis Maude’s claims that public authorities routinely (and deliberately) choose to disclose data in pdf just to frustrate entrepreneurs.

There may be a mad rush of requests for datasets later this summer (if indeed the Government sticks to its latest timetable), and no doubt there will be more impact for some than others. But I don’t anticipate that this is going to cause significant issues overall.

What can public authorities do to prepare? Well, I suggest the following:

  • identify your key datasets – if you regularly get requests for particular data, then you know what is likely to be asked for in future
  • work out what kind of licence you want to apply to these datasets if you disclose them; the easiest thing will be to use the Open Government Licence for information your authority owns the copyright for, but it is likely you will also be able to offer a non-commercial licence (limiting re-use to non-commercial use) or a charged licence (allowing re-use in exchange for a fee)
  • set up a section in your publication scheme for datasets and if you are happy to disclose datasets and make them available for re-use, get them up there on your website for people to use – don’t wait for the requests
  • once you’ve released a dataset and have licensed re-use, you are obliged to make it available in your publication scheme and to keep it up to date.

That last point may sound worryingly like a potentially unmanageable task for some public authorities, but the relevant amendment goes on to say “unless the authority is satisfied that it is not appropriate for the dataset to be published”. “Not appropriate” isn’t defined (as ever), but if it would be expensive to keep the dataset up to date, for instance, that might well be a justifiable reason not to do so.

So the usual advice applies to these changes – don’t panic! But we’ll have to wait and see what the actual impact will be. And indeed when that impact will be felt. At the moment we only have a draft Code of Practice to go on, so hopefully these few thoughts will be useful.

 

 

April 10, 2013

The Exemption Index: Section 12 – refusing on grounds of cost

Filed under: FOI Section 12,Freedom of Information Act,The Exemption Index — FOIMan @ 8:15 am
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In this post, FOI Man looks at the provision within FOI to refuse requests which exceed “the appropriate limit”.

Summary

It’s the constant lament of some public authorities and critics of FOI. FOI costs money. It’s a drain on resources. Well, yes, but as you and I know well, it is also of considerable value and can help the taxpayer to hold those authorities to account.

Nonetheless, they’re right. FOI does cost money. And if there were no limits on what authorities had to provide, there is a risk that they would grind to a halt. Hospitals would cease caring for the sick so that they could answer FOI requests. Children would be sent home from school so that teachers could complete their FOI homework. The Prime Minister would be busily redacting his own correspondence when he wasn’t answering MPs’ questions.

Section 12 is therefore an essential tool – a tap to regulate the flow of FOI requests and their impact. But to requesters it is often seen as an easy way for public authorities to avoid difficult questions.

Information affected

Any information – it depends on how much is asked for, how difficult it is to locate, and how long it would take to extract.

Things that FOI Officers need to know

Things that requesters need to know

If you want to avoid a section 12 response:

  • don’t be greedy – keep your request tight and focussed
  • do research first – can you find out how the information is likely to be held?
  • read my handy guide to making FOI requests

It may well be worth challenging a response if:

  • the estimate and/or reasoning behind the estimate seem unreasonable
  • it doesn’t explain how to bring your request within the acceptable limit
  • it doesn’t tell you what the estimate is (the authority isn’t obliged to, but if its a reasonable estimate, they shouldn’t really have a problem with telling you)
  • you’ve asked several unrelated questions but the estimated cost of answering them has been aggregated
  • the authority has given you a subset of the information you requested but did not ask you first whether you would like that information, or would prefer to narrow your request in an alternative way (this is a breach of the section 16 duty to advise and assist).

Essential case law

Fitzsimmons v IC and DCMS (EA/2007/0124)

Quinn v IC and Home Office (EA/2006/0010)

Chief Constable of South Yorkshire Police v Information Commissioner, [2011] EWHC 44 (Admin)

Craven v IC and DECC, [2012] UKUT 442 (AAC)

Recommended reading

Requests where the cost of compliance with a request exceeds the appropriate limit, Information Commissioner’s Office, version 1.1, September 2012

Wadham, J et al (2011), Blackstone’s Guide to the Freedom of Information Act 2000, 4th ed.

FOI Man says…

What can public authorities charge for Freedom of Information requests?, 11 July 2011

MOJ costs study – third strand of post-legislative scrutiny research, 26 March 2012

April 4, 2013

Are universities transparent enough?

Filed under: Freedom of Information Act,Open Data — FOIMan @ 12:22 pm
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FOI Man talks to Times Higher Education about universities and openness.

Times Higher Education magazine this week features an article about…higher education, and how open and transparent it is. I was interviewed for this feature a few weeks ago – wonder at my high rhetoric – “[FOI is seen] as a pain in the backside”. Seriously, it’s a comprehensive survey of all aspects of transparency in the UK university sector, including everything from FOI to open data to MOOCs (that’s massive open online courses for those of you not in the know).

April 1, 2013

Is the ICO cutting corners? And pasting them?

Filed under: Decisions,Environmental Information Regulations — FOIMan @ 10:42 pm

FOI Man asks if reduced resources are causing the Information Commissioner to cut corners on important FOI decisions.

In legislative terms, FOI and its sidekick, the Environmental Information Regulations (EIR), are spring chickens. We’re still feeling our way through their implications, which is why, from time to time surprising things crop up.

One thing that’s important to know, you’d think, is where the boundaries lie. Who is subject to the duty to answer requests and who isn’t.

Recently the Royal Household was asked for information under the Environmental Information Regulations. It is quite clear that the Household is not subject to FOI, but EIR is a different beast, as the Duchy of Cornwall (run for the Duke of Cornwall’s benefit, or Prince Charles as you and I know him best) has discovered.

The request was rejected on the grounds that the Household is not subject to the EIR, and as you might expect, an appeal was made to the Information Commissioner.

Last week the requester received the Commissioner’s decision. It – perhaps unsurprisingly – found in favour of the Royal Household. But what is surprising is that it appears that large parts of the decision’s reasoning have been copied and pasted from Wikipedia and the Royal Household’s own website.

Now I’m not going to crow about the rights and wrongs of plagiarism (though others have criticised them for this). I’m sure there are FOI Officers out there who have copied chunks of the ICO’s decisions into their own FOI responses without citing them where it suited. And it’s not difficult to see how a slip up like this could be made by a junior caseworker working on a minor case where the issues are not of great potential dispute.

But it does seem odd to me that on a decision as important as this, potentially establishing the boundaries of environmental information access, argument could be taken from other sources, apparently with little critical thought. And that internal quality controls didn’t pick that up.

Could this be evidence of a lack of resources at the ICO potentially affecting the quality of decision making? Given recent reports that the ICO faces further significant cuts (in line, of course, with other parts of the public sector), this may be a worrying sign.

March 21, 2013

The Information Commissioner earns his spurs, says Committee

Filed under: Data Protection Act — FOIMan @ 2:17 pm
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FOI Man highlights a new report from the Justice Select Committee calling for more help for the Information Commissioner.

Say what you like about the Information Commissioner’s Office (ICO), but without it, the handling of personal data and FOI would be a little like the old west. Your rights would only be meaningful if you could afford a gunslinger (or expensive lawyer for those not following the metaphor).

The Justice Select Committee has taken a good hard look at the ICO and identified some major issues. And they’re worth noting.

In particular, the Committee has highlighted a major problem which may result from the proposed EU Data Protection Regulation, which, if passed, will replace our existing Data Protection Act (DPA) in the next couple of years. The existing draft will see the end of notification, which currently requires every organisation that processes personal data (with a few exceptions) to register (or notify) with the Information Commissioner every year. Depending on the size of your organisation, you have to pay either £35 or £500 for the privilege.

And that’s the problem. The ICO’s data protection work is financed by this notification fee. So even if you don’t have much time for the form-filling, box-ticking nature of the notification process (I’m a little lukewarm about it in all truth), that fee is essential to ensuring that the ICO can do its job on DPA. If the regulation removes the requirement from our statute book, the ICO will be left with a shortfall of £42.8 million. Bearing in mind that some suggest that the ICO doesn’t do enough as it is – including criticisms from Lord Justice Leveson – and the fact that it is highly unlikely that the Government will want to fund data protection enforcement directly – this is a major problem. As the Committee says, “No one seems to know where resources would come from to replace the notification fee if it is abolished.”

Interestingly, the Committee is not impressed with Leveson’s recommendation to change the status of the Commissioner’s Office to create an “Information Commission”. It repeats the call (which it rolls out every time it looks at anything to do with the ICO) for the Information Commissioner to be made directly responsible to and funded by Parliament. This is just as regularly rejected by Government, but it’s worth another shot.

Others have pointed out that successive Governments have failed to commence existing sections of the Criminal Justice and Immigration Act 2008 which introduced custodial sentences for data protection breaches. Some have suggested that bringing these into force would have been a better way to deal with the problems discovered by Leveson than the Royal Charter. The Committee calls for the the sections to be brought into force.

Similarly, Government has the power to bring in regulations allowing the ICO to carry out compulsory audits of parts of the public sector. This power hasn’t been used much, and the Committee suggests that it should be now to allow the ICO to go into councils and hospitals when there appears to be a problem.

So overall, the ICO will be happy with this report. Let’s hope the Ministry of Justice take note and enact at least some of these recommendations, as otherwise, we’ll be back in the wild west. And I’m rubbish at riding horses.

 

 

March 18, 2013

The Exemption Index: Section 21 – information reasonably accessible by other means

Filed under: FOI Section 21,The Exemption Index — FOIMan @ 1:04 pm

In this post in the Exemption Index series, FOI Man looks at the absolute exemption at section 21 of the Freedom of Information Act 2000

Summary

“An Act to make provision for the disclosure of information held by public authorities…” Freedom of Information Act 2000, long title

So why not ask your local authority for a copy of any book they hold in one of their libraries? (Assuming they still have them, of course). And given that through the internet, all public authorities have access to all the world’s websites, why not use a public authority as your own personal research unit?

The answer is section 21. This exemption means that public authorities don’t have to provide requested information that the requesters could reasonably easily obtain for themselves.

It also acts as a carrot to encourage public authorities to publish more information. If requested information is in their publication scheme and/or on their website, they won’t have to supply it. Also, if an authority sets out how much it charges for its information in its publication scheme – in theory it can charge what it likes for access to that information.

The big question for both FOI Officers and requesters is…what is “reasonably accessible”?

Information affected

Any information that is publicly available, even if it has to be paid for (though see discussion below). Information that public authorities are legally obliged to communicate. Information listed in a public authority’s publication scheme.

Things that FOI Officers need to know

  • If refusing a request using this exemption, you must provide advice and assistance to the requester (FOI, s.16) on where they can obtain the information from
  • If the information is to be found amongst lots of other information on a website, you must explain where on the website the specific information can be located (Ames v Information Commissioner and the Cabinet Office, para 19). In other words, if it is on a website, give them a link to the specific document that contains the relevant information, and if necessary explain what page of that document the information is on.
  • If you’ve said in your publication scheme that you will charge for a particular publication, the exemption will apply even though the information is only available for that charge [if the charge is paid?] – recent case law suggests that there is no limit in these circumstances (Davis v Information Commissioner and the Health and Social Care Information Centre, para 26), though the Commissioner could arguably revoke approval for particular kinds of information if he was unhappy with the level of the charge
  • Arguably the level of charge will be important in other situations where information is only available for a charge, but what case law there is supports the idea that generally speaking, authorities can refuse requests even where there is a significant cost to access the information.
  • The Information Commissioner’s guidance suggests that, for example, if a piece of information is in a publication such as an annual report, but it is only a very small item of information, it would not consider the need to purchase the whole report as being “reasonably accessible”.
  • Information that is only available through inspection on the authority’s premises is not “reasonably accessible” (FOI, s.21(2)(b)), unless it is listed in the publication scheme as only being available through that route (so it is a very good idea for publication schemes to include public registers and archives).
  • The location of the requester may be significant in deciding whether something is reasonably accessible. If your office is in Kent, and the requester is in Newcastle, that might mean that a requirement to visit your office to see the documents is not making them reasonably accessible. However, the Information Commissioner does accept that there will be circumstances where copies can’t be made even for a requester a long way off (eg fragile documents held by a Record Office).
  • If a requester has a disability, that may also affect whether or not information is reasonably accessible. Authorities need to consider their duties under the Equalities Act 2010 to make reasonable adjustments. A requester with particular disabilities may not be able to visit an office a distance from their home.

Things that requesters need to know

  • If you think that your circumstances would affect whether or not information is reasonably accessible (eg you have a disability that would prevent you accessing information in the public domain, or you live a long way from an office where the information is made available) you should include this information in your request (you don’t have to, of course, but an authority can’t make adjustment for your circumstances if it doesn’t know about them).
  • If an authority is claiming that the information is reasonably accessible because it is in a publication scheme even though it is very expensive, consider whether the information is environmental information. The Environmental Information Regulations (EIR) require charges to be reasonable, and it is possible that a challenge under EIR would be more successful than a challenge under FOI.
  • If you think that the FOI Officer hasn’t given you enough advice to be able to find the specific information, point out to them that they are required to provide advice and assistance. Reference to the Ames decision may also help your cause.
  • If the information is published by the authority, but is only available at a significant cost, check that it is listed in their publication scheme at that cost.
  • If information is available from that or another public authority at a significant cost but it is not listed in their publication scheme, it may be worth challenging in some circumstances. The Tribunal in Davis suggested that it was sympathetic to the Health and Social Care Information Centre’s charge because it made available lots of other information and the charge reflected the work involved in producing it. But that may mean that a Tribunal would be less sympathetic in circumstances where the authority was charging a disproportionate amount for a publication and hadn’t made available as much as it could at no cost.

Essential case law

Recommended reading

FOI Man says…

March 12, 2013

An unpopular answer

Filed under: records management — FOIMan @ 2:15 pm

FOI Man argues that there’s an easy answer to improving information and records management. The problem is that nobody likes it.

Jimmy Savile appears to have got away with, well, not quite murder, but rather a lot of very serious crimes in his lifetime. This morning BBC Radio 4′s Today programme looked at the failure of police forces around the country to recognise what was going on, despite many of them receiving complaints during his lifetime. Drusilla Sharpling of Her Majesty’s Inspectorate of Constabulary (HMIC) stated that forces have differing standards for recording information on the police national database. The problem, she argued, was one of information management.

This is but the latest example illustrating how fundamental information management is to the provision of just about every service in the country. And also how until something goes wrong (and usually within a few weeks after something goes wrong), it’s perfectly acceptable to put it to the bottom of the pecking order. We see plenty of evidence of personal data breaches that receive the attention of the Information Commissioner, most of which come down to poor information management. Last year London Metropolitan University lost its “trusted” status in relation to international students, partly because it failed to keep attendance records up-to-date.

We’re all inclined to leave the filing on the backburner. It’s a chore to us. Even I tend to find lots of jobs that need doing to prevent me spending time on records management. Recently I ran a workshop and the most senior manager present complained that email and shared drives were a problem as they weren’t being managed. So I asked him if he was going to set up a programme to be monitored by his management team and encourage his staff to spend time filing and deleting documents. He shrugged and said they don’t have the resources for that. And we moved on. That’s what we always do. We move on.

As a result, things don’t improve. FOI requests get refused on cost grounds or take forever to answer. Data breaches continue to happen. Children get abused and the abusers get away with it because a police force somewhere doesn’t employ enough people to keep records up-to-date. (And no doubt those police forces are under political pressure to cut “back office staff” – but that’s a whole different blog post).

I first got involved with FOI because I saw it as the answer to my prayers. At the time I was stuck in a regularly flooding basement in a local authority managing to the best of my ability a file store – a big room with lots of boxing on shelves. Some of the records at some point had been put in a location under the town hall steps. When I went to see them, I had to wear a mask because of the mould spores on the old ledgers that had been allowed to become damp (actually, sodden). Records management wasn’t sexy, but worse than that, the council didn’t HAVE to do it. There were all sorts of legal requirements on the council, and those were the things that got prioritised. So a piece of legislation that introduced a Code of Practice for managing records was music to my ears. The Lord Chancellor, no less, was calling for improved records management. Colleagues would have to listen to me. Bosses would have to provide resources. Beyond the wellington boots they provided when the basement flooded.

Well, sort of. Here we are 12 years later. Lots of public authorities appointed records managers. But that was it. Unless everyone in the authority spends time managing the information they deal with, and the technology and other infrastructure is put in place, all you’ve really got is…lots more records managers in basements, usually now with lots of other responsibilities that mean they have no time to work on records management. There’s plenty of evidence that actual improvements have been fairly limited in many, probably most public authorities.

So what’s the answer? Well, firstly, we could all try to remember that managing the information and records we work with is part of the job, not something that will wait until a quiet moment that never comes. But if that fails? I’m beginning to wonder if more legislation is the answer. There is precedent.

In Scotland, an abuse scandal in children’s homes led to the Scottish Government introducing The Public Records (Scotland) Act 2011. Under this Act, public authorities are obliged to prepare and implement a records management plan. The plan itself has to be approved by the Keeper of the Records of Scotland. In England and Wales, The National Archives has stringent rules already that apply to central Government and also inspect “places of deposit” – local Record Offices that are authorised to keep national public records relating to their local area.

But by and large most public authorities are left to their own devices. They can adopt technology without worrying about management of the information that the technology creates. They can treat records management as a luxury to be given up in tough times. They can leave their staff to their own devices, however important it might be to have a record of their work. Maybe it is time to look at the way we prioritise records and information management at a national level. Because whatever we’re doing at the moment isn’t quite working.

With thanks to Pete Wadley of the National Records of Scotland for information about The Public Records (Scotland) Act 2011.

March 10, 2013

The Exemption Index: Section 14 – Vexatious requests

Filed under: Freedom of Information Act,The Exemption Index,Vexatious — FOIMan @ 2:52 pm
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In the first of a new series, FOI Man looks at section 14 of the Freedom of Information Act – covering vexatious requests – and what every FOI Officer – and every requester – needs to know about it.

Summary

If you’ve ever watched Monty Python and the Holy Grail, you’ll recall King Arthur’s encounter with the Black Knight. The knight challenges him to combat. They battle. Arthur chops his arm off and claiming victory, makes to leave. But the knight, in denial of all sense (yes, I know it’s a comedy, but bear with me on this), won’t accept defeat and insists that Arthur keep fighting. No matter how many limbs Arthur lops off, the knight is insistent that the conflict continue. Eventually Arthur walks off whilst the knight, now literally without a leg to stand on, continues to shout after him.

But when you’re providing a public service and legally obliged to respond to enquiries, you can’t just walk off. Or can you?

That’s what section 14 provides for. FOI Officers rarely deal with medieval knights, but we are familiar with that kind of bloody-minded (if not bloody-bodied) determination. There are people who refuse to take no for an answer. There are others who are more like an attention-seeking child repeatedly prodding its older sibling or a kitten jumping up and down on a weary old dog. The answers aren’t necessarily important – it’s about provoking a response.

More recently, it’s becoming clear that section 14 is FOI’s answer to gluttony. It can be used to refuse requests where one request threatens to eat the public authority out of house and home.

Information affected

Virtually anything. It’s the nature of the request itself that triggers this provision, not the information requested.

Things that FOI Officers need to know

  • “Vexatious” isn’t defined in the Act. So the case law and guidance that is available is essential to understanding how it can be used.
  • Vexatious requests have to be refused in writing. Allowing the requester to appeal the decision through internal review is a good idea given the controversial nature of these refusals.
  • When considering whether a request should be refused as being vexatious, the Information Commissioner’s 5 tests may help, but Justice Wikeley, who recently analysed section 14 in detail as part of an Upper Tribunal decision, suggests four things to consider: the burden, the motive, the value or serious purpose, and whether the request causes distress or harassment to staff.
    • The burden – consider the number of requests previously made; the breadth of the request (but consider asking them to narrow their request or refusing on cost grounds first); the pattern of requests (eg are several made within days of each other?); and the duration (has this been going on for some time, and does this suggest it will continue in the future?). Recent case law suggests that where requests can’t be refused on cost grounds (section 12 – for example if it would take a long time to read through and redact material), section 14 may be used. However, it is still unclear where the line can be drawn – the information in these cases ran to thousands of pages. The key, almost certainly, is going to be to demonstrate that the work involved is disproportionate (see paras 15 and 16) – and that will vary depending on the size and complexity of the organisation, and of course what the purpose of the request is.
    • Motive – you can’t be “purpose-blind” in considering this aspect of FOI. It will often be difficult to be sure what someone’s motive is. In many cases, where you do know – eg you know the requester is a journalist researching a story – it is likely to be a reason NOT to use section 14.
    • Value or serious purpose – obviously closely connected to considerations of motive. And equally difficult. It might be that a series of requests starts out as having an obvious purpose (eg finding out information relating to a legitimate complaint), but over time “drifts” into vexatiousness as the requester draws in more and more unconnected issues. FOI Officers should never consider using section 14 purely because they can’t see a serious purpose or value behind a request – only if there are other reasons to think a request is vexatious.
    • Causing harassment and distress to staff – if a request (or series of requests) appears to target an individual obsessively, is aggressive or uses what Justice Wikeley describes as “intemperate language”, it can be used as evidence that a request is vexatious. It is probably safest to be able to point to other reasons as well.
  • Case law increasingly supports a “holistic” interpretation. As Justice Wikeley put it (para 45), the danger is “not being able to see the vexatious wood for all the individual trees”. Basically, listen to your gut.
  • EIR requests – regulation 12(4)(b) – “manifestly unreasonable” – is broadly equivalent to FOI’s section 14 (para 30). Therefore much of what is said here will apply to that exception.
  • Repeated requests – for a long time, section 14(2) of FOI, covering repeated requests, has been talked about as being a separate provision. Justice Wikeley thinks it should be seen more as a subset of vexatious requests.

Things that requesters need to know

  • Vexatious sounds bad. Most people aren’t going to like being called vexatious. But don’t take it too personally if you receive a response citing section 14 – the flip side of recent case law is that requests might well be classed as vexatious even if you had no intention to annoy. It is fundamentally a tool to help public authorities manage the workload of FOI, just as section 12 and the fees regulations are.
  • Avoiding getting a request refused under section 14 – don’t get personal. Asking questions about an individual member of staff (eg “I want to know how much John Smith has claimed in expenses?”) is likely to get people wondering if you’re trying to harass Mr Smith, especially in the context of a long standing correspondence or dispute with that member of staff. If the FOI Officer asks you to narrow down your request, be cooperative, especially if they explain that it will take a long time to review and redact relevant material. If you ask about zombies, aliens and the supernatural, you’re just as likely to receive a refusal under section 14 as you are to receive a witty response – quite rightly as you’re wasting taxpayer’s money.
  • Challenging a decision – demonstrate that your request has a serious purpose; question how much work the authority is claiming is involved and whether it imposes a disproportionate burden (for example, a Government department is more likely to have the resources to review 1000 pages of information than, say, your local GP surgery); keep calm – otherwise you may just compound the impression of an obsessive person causing undue harassment.

Essential case law

Recommended reading

FOI Man says…

 

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