I’ve been meaning to write this post for some time, but there’s always been something topical getting in the way. But as the data deluge begins to subside (?), here are my observations on the role of FOI Officers in the UK.
When FOI was passed (and I am dismayed to recall that I missed the FOI Act’s 10th birthday on 30th November), public authorities preparing for its impact had little to go on. Each authority came up with its own way of handling requests or alternatively, failed to, and reaped the consequences in January 2005. As a result, each public authority has its own way of processing FOI requests, and each FOI Officer has a different job.
In one organisation I’ve worked in, the FOI Officer is very much an advisor – they only get involved in the answering of individual requests if there are concerns about disclosing information. Most requests are answered by staff working on the subject area of the request. My impression is that this is characteristic of central government’s handling of FOI requests (generalising broadly). In these bodies, the person answering your request may well not know very much about the Act (so may use the wrong terminology/make odd statements about their obligations under the Act), but should be knowledgeable about the subject that is being asked about.
In other organisations, including my current one, the FOI Officer receives, acknowledges and responds to the request. Departments are asked to provide relevant information, and advise if they have any concerns with the information being disclosed (I wrote about this process in more detail in my post Being Human last month). This is probably characteristic of FOI procedures in sectors outside central government (again, generalising – many may not). This is an approach probably favoured additionally by smaller organisations.
As well as differences in the way that FOI requests are processed, there are also variations in attitude and approach amongst practitioners. There isn’t a single FOI Officer profession – we’re a range of individuals, with different backgrounds, skills and attitudes. There isn’t a professional body for FOI Officers – though the Records Management Society (RMS) recently became the Information and Records Management Society (IRMS), partly I suspect in an attempt to fill this vacuum (logical, since many FOI Officers started out as Records Managers, and the Section 46 Code of Practice makes the link clear).
Often we have many other responsibilities in addition to FOI. Commonly this includes records management and Data Protection Act compliance (with significant workloads attached to both) but often very many other duties as well.
This means that there is no single understanding of what an FOI Officer is for. Some, I’m sure, see their role as to do as they’re told – if they’re told to withhold information by a senior officer, then they find a way to do so, no matter how weak the basis. And who can blame them? I know of one FOI Officer who was casually threatened with redundancy for themselves and a junior colleague if they couldn’t be “more helpful” (for which read “find ways to avoid answering uncomfortable requests”).
A few FOI Officers, I believe, take common cause with the FOI critics in their organisation and set out, in their view, to defend their employer. Without much persuasion, they will seek out ways to thwart requesters. They will complain loudly about ‘abuse’ and ‘misuse’ (sometimes justifiably, but perhaps on occasion not) of the legislation. Their advice and decisions may not be based on available case law, but on their own view of what is reasonable. They will shout loudly – and in fairness, correctly – that the Information Commissioner’s decisions do not set precedent.
Then there are those that take the view that they are there to challenge the status quo, to promote the principles underlying the legislation. In practice, this means not just accepting it when a colleague or a manager asks them to find an exemption to apply, but asking the difficult questions. Why can’t it go out? What harm will result? How likely is that harm? Will it really cost this much to provide the information? This approach is strongly influenced by the decisions of the Information Commissioner, Tribunal and higher courts.
In my view, this is the right approach, however unpopular it may be with managers and colleagues. There is, after all, a statutory presumption (Environmental Information Regulations) or assumption (FOI, as established through case law) to disclose, and in my experience it is often difficult for those closest to information to take an approach consistent with that. The FOI Officer is there to make that assumption or presumption for the public authority. They might ultimately decide that it is right to withhold the information, or they may be overruled, but they have to ask the questions.
In truth, of course, we’re all on a scale covering all of those approaches. I certainly recognise myself in all three scenarios. It’s not wrong of FOI Officers to seek to defend their employer, but we do that better by minimising the risk of referral to the Commissioner, or at least increasing the likelihood of the Commissioner upholding the decision made. I’d also argue that by basing our approach around case law and available guidance, FOI Officers will be seen to be professional, even if they don’t belong to a profession.