Is a public authority allowed to question why you want information? FOI Man investigates.
It’s a standard mantra that we’ve all got used to trotting out, both within and outside of public authorities. All FOI requests should be dealt with irrespective of who has sent them and why they want the information. But just what is this based on?
The truth is that there is no directly stated requirement of this kind in the Act. As the Information Commissioner’s guidance states:
“There is no specific reference in the FOIA or the EIR to the principle that the identity of the requester should be ignored, but it is the absence of references in the legislation to the identity of the applicant from which the general principle is drawn.”
The same goes for the reason as to why the request is made (although the European Directive on which the EIR is based does say that applicants shouldn’t have to declare an interest). It’s really just that it is a practical inference from the way the legislation is drafted that as the authority is under an obligation to disclose requested information to anyone who asks, it shouldn’t matter who they are or why they are asking.
So if an authority does ask you why you are making a request, they’re not strictly contravening the Act. It is pretty broadly accepted that it is bad practice though. The Commissioner and anyone else looking at an appeal further down the line would undoubtedly take an adverse view of such questioning unless it could be justified. Which is probably why the s.45 Code of Practice says:
“Care should be taken not to give the applicant the impression that he or she is obliged to disclose the nature of his or her interest as a precondition to exercising the rights of access, or that he or she will be treated differently if he or she does (or does not).”
Having said that, it would be well worth you having a chat with an FOI Officer/member of an authority’s staff who does ask you why. It may well be that they are trying to (albeit clumsily) provide advice and assistance by establishing what you really want to know. It could be that your request hasn’t been clear enough, or that they think you’re asking the wrong question and want to point you in the right direction. But I’ve always trained staff to try to avoid the ‘why’ question because of the potential for misunderstanding.
So in summary, it’s a bad idea for authorities to ask you why you’re making a request, even though it isn’t directly prohibited by the Act (or the EIR). Thanks to Ross Pollard (@ishbroken on Twitter) for asking the question.