A local authority disclosed information requested through EIR within 15 days. But the Commissioner has ruled that they failed to answer the request “as soon as possible”, even though they answered well within 20 working days.
This isn’t an April Fool’s joke, despite the date. An interesting decision notice has just been published by the Information Commissioner relating to a request made under the Environmental Information Regulations (EIR). The requester had asked for information from the Local Land Charges Register of Walsall Metropolitan Borough Council.
The council had arranged access to the Register within 15 days of receipt of the request. But the Information Commissioner has ruled that this was not “as soon as possible” as required by reg.5 of the EIR, even though it was within the 20 working days maximum allowed.
I can hear the hiss of the steam escaping from FOI Officers’ ears around the country right now. If the information was provided within 20 days, how can it breach regulation 5? Does this mean that we have to tell our colleagues to drop their other work as soon as an EIR or even an FOI request is received?
Well, hold your horses. The Commissioner accepts that public authorities have to balance their responsibilities. Phew. The requester had also argued that the council could have responded sooner because it responded to land search enquiries, which are paid for, within three days. The Commissioner accepts the Council’s argument that there is a different process for answering EIR requests than for dealing with Land Charges enquiries and that there are good reasons why it takes less time to answer the latter.
So why did the Commissioner find against the council? During his investigations, the Commissioner was told by the Council that one of the departments that had been asked to provide the information had accidentally deleted the email from the FOI team asking for the information. The Commissioner concludes that if that hadn’t happened, the information would have been provided sooner. Therefore, he argues, the information was not provided “as soon as possible”.
Expect more decisions like this on FOI and EIR as the Information Commissioner’s Office are clearly now trying to push authorities to answer requests more promptly.
Useful comment from @Bainesy1969 via Twitter: “Poor DN imho. Circular, speculative reasoning from ICO of the kind “if my aunt had been born a man she’d have been my uncle”…”
Anyone else think the ICO got it wrong on this one?
The Commissioner is actually very reluctant to find authorities haven’t acted promptly (the FOI term); I’m not aware of a single case where he has found that they did respond within 20 days but not promptly. On one occasion where I complained about promptness, the case officer tried very hard to persuade me to withdraw my complaint, then eventually wrote a decision notice saying that a simple “not held” response that took 20 days was ok.
In this case notice the comment “The Commissioner considers that it may be useful to highlight that complaints of this nature may have the undesirable effect of diverting public authorities’ resources away from actually responding to requests in as timely a manner as they might otherwise do. ”
I think it’s a real problem that some authorities (I’m sure not FOIMan’s 🙂 do just treat 20 days as a target, not a limit. Particularly where the case is “not held here, try over there”, this can lead to it taking many many weeks to actually track down the right authority.
It may seem odd that a ‘not held’ response may take so long but it’s not necessarily always easy to clarify whether information is held or not.
The FOI Officer may have to check with several members of staff in different areas of an organisation, some of whom might be on leave, off sick or otherwise engaged doing front line work, or who when they finally reply might then direct the FOI officer to contact a second person, who then directs them to a third person, as well as searching several manual or electronic filing systems to confirm whether the information exists or not.
So, the invisible ‘behind the scenes’ work can be very extensive even in cases where information is not held.
I appreciate that it might not be trivial, but if it takes 20 days to find out whether you hold information, how would you release it inside the deadline if you find it and then need to review it for exemptions etc?
Well it’s not always possible, and sometimes the deadlines are breached even when information is held.
What I think I’m trying to get across is that sometimes, it takes longer to confirm that information is *not* held than it does to find information if you hold it. Because if you hold information, at one point you’re going to find out who has it in the organisation. If the organisation does not information (especially if you suspect that it is held or logically should be held) then a good FOI Officer would keep searching and trying various locations and individuals rather than give up at the first hurdle.
I know it does sound a bit weird…
Totally agree with FOI Officer. I’d just like to:
1) add a bit of colour/context
New governments cannot resist fundamentally restructuring the NHS. Organisations get established, then merged, then dissolved – and what happens to their records?
I work in “information governance” now, rather than purely FOI, and I can tell you that we are already taking a concern about what *happens* to all the organisational/regional/demographic/financial information created by primary care trusts and SHAs – whose responsibility will it be, where will it be kept? National Commissioning Board? GP consortia? Right now, we just don’t know where/how many of the governance responsibilities will divide up.
New NHS organisation/s inherit the reponsibilities of the old – the “activity” doesn’t change, just the provider of it. We quite frequently get requests for information going back for up to 10 years, which is not covered by statutory reporting or Public Records obligations . Ascertaining which organisation would have created the information way-back-then, where it is (huge amounts of paper archived off site), who would know sometimes really does take a while. In many cases – e.g. for financial or staffing information – you have to add in the factor of whether it can be collated in a format that makes e.g. 7 years ago comparable with last year’s information – and the FOI officer may need to obtain an ‘expert view’ on this from finance or human resources personnel.
Of course, if we know we haven’t got information on site/in the current systems, we could just try to get away with “information not held” (after all, we didn’t exist ‘back then’). But given the terms of our Establishment Order, I suspect that may be against the letter of the law. Note to self, must make time to check this: the reasons I don’t know already are a) because I’m not a lawyer and b) because in my opinion that easy way out is definitely not in the spirit of the law so I’ve always done my best to go as far back with archived information from predecessor organisations as Section 12 (cost of compliance) will allow.
IMPORTANT NOTE: I cannot emphasise enough here that ‘no-one has any idea where it is’ ONLY applies to ‘defunct’ organisation information that would be potentially disclosable under FOI, not patient records, which are managed entirely differently from financial/staffing/other organisational type records.
2) reinforce FOI Officer’s point:
that internal leads (i.e. the people who actually hold/own information that the FOI officer needs to respond) are quite often on the front line and, frankly, for them, someone who is directly in need of the authority’s service takes priority over someone who “just” wants information. I’m not saying that’s how it should be, I’m saying that that’s their job. That’s why authorities have FOI officers to ensure that FOI requests are dealt with promptly. That’s our job! I don’t nag, I just remind incessantly …
Thanks for the comments all. Great illustrations of why it’s often difficult to respond within 20 days, but also how frustrating that can be for the requester.