FOIMan explains why those requesting information under FOI should think twice before asking for correspondence.

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Stop and think before asking for correspondence

When I was an FOI Officer there was one word in a request that would make my heart sink. That word was “correspondence”.

It wasn’t that I had any problem with individuals asking for it in principle. The Freedom of Information Act means that anyone can ask for whatever they want, and I’ve always been supportive of that. It was just that I knew that more often than not, a request for correspondence would result in internal grief, and a disappointed requester. Let me explain.

There are several reasons why requests for correspondence are inherently difficult. Firstly, just think about your domestic correspondence. Nowadays that includes letters that you might send and receive through the post as well as email you send and receive using any of your email accounts (and many of us have several). It might also include messages you send and receive via Facebook or other social media sites. It’s not simply a matter of checking your filing cabinet (if indeed you are organised enough to file your letters at home). There are lots of places that your correspondence is stored.

Now multiply that by the number of people in the public sector body you are interested in. Hopefully – but not necessarily – they will have record keeping policies that require emails, letters and so on to be filed in certain places. Maybe even most members of staff follow the policies. Even then that’s a lot of places to look. But if records management isn’t a priority for the organisation or its staff (there is, after all, very little in the way of legal requirement to improve record keeping), there will be even more to do.

Remember that contrary to popular perception, the FOI Officer does not have a big red friendly button that allows them to search all the email accounts and files of everyone in their organisation. They are usually reliant on the individuals themselves conducting a search of their email account. And of course any private email accounts that they have used for corporate business. The FOI Officer has to trust the individual to conduct that search thoroughly (and that they have the technical skills to be able to extract all relevant emails, which isn’t necessarily always the case). On more than one occasion it transpired that for whatever reason, only a small proportion of the information was provided to me at the first attempt.

Then there’s the fact that it is human nature to consider correspondence “personal”. In my experience, the most awkward discussions with colleagues about FOI related to requests for correspondence. Allegedly government ministers and their advisers will go a long way to try to avoid their correspondence being accessible through FOI (and Government departments will fight tooth and nail to defend their right to do so), and they are not alone. Most of the time there is very little to hide in the correspondence itself, they just feel uncomfortable. But there are also the times when they forgot themselves and wrote something embarrassing. “There is no exemption for embarrassment” is an oft-quoted mantra, but it doesn’t stop beleaguered politicians and officials wanting to create one. Which makes for some very long drawn-out conversations between them and the organisation’s FOI Officer.

For all of the above reasons, the chances of an FOI request for correspondence – unless very well defined – resulting in information being disclosed within 20 working days are considerably less in my experience than with requests for other information. The likelihood is that you will achieve one of the three following outcomes:

  • the request will be refused on the grounds that it exceeds the appropriate limit – i.e. it will cost too much/take too much time
  • the request will be refused on other grounds, perhaps under the policy formulation or effective conduct of public affairs exemption
  • the information will be supplied, but in all likelihood after the 20 working day deadline.

Of course, with any of these, you have the right to complain. Not answering within the statutory deadline is a breach of the legislation, for example. And maybe the Information Commissioner will give the authority a slap across the knuckles. But the effect will be the same. You won’t get any information very quickly if at all.

So what am I saying? That FOI has limited use in accessing correspondence? That there’s a de facto exemption for correspondence? No. But I do think that requesters have to box clever if they want to get to useful information. Here are some tips if you are thinking about making a request for correspondence:

  • think about whether you need correspondence to get the information you’re after – it may be possible to just ask the public authority what they have done rather than trawling through emails and letters to work it out for yourself.
  • do some research first. Work out which department or individual is most likely to hold the information.
  • using your research, be as specific as possible. The most effective way to use FOI in relation to correspondence is when you know a particular email or letter exists so you can ask for it. The least effective is to ask for all correspondence on a particular subject in the last 5 years.
  • often with FOI, the key is to see it as a long game. Maybe you make one or two FOI requests for other information first to establish a sequence of events and then ask for specific transactions that you know must have taken place to back your findings.
  • avoid requiring the public authority’s employees to interpret your request. If you ask the authority to provide “all correspondence on the funding of the new leisure facility”, not only are you asking someone who may well not be sympathetic to your aims to decide what counts as “funding” or “the new leisure facility”, but you are also asking them to read through every piece of correspondence to establish which emails or letters fall into their personal definition.

In sum, avoid the C word unless it is absolutely necessary. And if you must use it, do so with precision.

FOIMan provides a commercial service for journalists, campaigners and others to help them fine tune FOI requests and avoid wasting time with badly phrased requests. paul(Replace this parenthesis with the @ sign)