It might sound odd, but sometimes FOI Officers have to, let’s say, bend the Act in order to get information out there. I’ll explain that statement later…
People probably don’t give this much thought, but finding information requested under FOI is not as easy as it sounds. My suspicion is that many requesters assume that the FOI Officer just has to enter their question into something akin to Google, and up the information comes. Then we twiddle our thumbs for 19 days before disclosing or refusing, unless we’re feeling particularly difficult, in which case we might decide to extend the deadline.
It’s true that back before January 2005, the Labour Government did tie FOI implementation into plans for e-Government, and there was a lot of pressure initially for all public authorities to adopt electronic document and records management systems (EDRMS). But the association was then quietly forgotten as rumours circulated about the limited success and high cost of the few implementations that did progress.
I’m a sceptic when it comes to IT solutions and their ability to find information. Even if you have a system that allows all electronic data to be searched:
a) it won’t pick up paper records or the contents of people’s notebooks (either physical ones or off-line electronic ones)
b) it will only pick up information containing the terms you search for – which is fine if the request is very specific, but this is rarely the case
c) if it is searching every electronic system in the organisation (what is technically called an “enterprise search”), it may not be clear to the searcher what the context of the information is – is it a draft? is it sensitive information? who should I ask for clearance to disclose?
Of course, it’s possible to overcome all of those shortcomings, but in my experience, they rarely are. There are also all sorts of privacy concerns connected with enterprise searches. I’ve never been given the ability to search all emails for a request, the key reason being that it would allow me to see private emails sent and received by colleagues (which arguably would constitute a breach of several Data Protection principles). So FOI Officers rarely, if at all, are in a position to conduct searches of all the electronic information in their organisation. Let alone the physical records.
We therefore have to rely on our knowledge of the organisation, and on the cooperation of colleagues. When I receive an FOI request, I forward the request on to contacts in the relevant departments. I always remove the details of the requester (that’s a debate for another day) and ask the relevant department(s) to provide the information or let me know if they have any concerns with the information being disclosed. They are asked to let me know if I should be contacting someone else. I am entirely reliant on them in collating the relevant information and providing it to me. With slight variations, I suspect this is the process in every public authority in the land.
It is a very human process. It is therefore, of course, entirely feasible that we will fail to locate all of the information. It might be that the FOI Officer is new to the organisation and doesn’t know where the information is likely to be. It might also be that the departmental contact doesn’t know about the scrawled note in a colleague’s notebook. It might be that someone is on sick leave and unable to answer pleas for information on the issue they are responsible for. I’m sure that nobody in my organisation would ever deliberately deceive me, but I wouldn’t be entirely surprised if that happened in some organisations from time to time. But I suspect that the vast majority of the time, such omissions are entirely accidental.
Here’s an illustration (and this is condensed). On one occasion, I received a request for all emails from a particular senior official relating to a specific subject. I forwarded it to their PA. I was sent about half a dozen emails. I sent a response. The requester complained that they knew there were more. I went back to the PA. I was assured with some irritation that no, they had provided all of the emails. I responded to the requester in like terms (but more politely). The requester calmly pointed out that they had emailed the official and their email wasn’t amongst the emails we had disclosed. Oops. Back to the PA. Silence for a few days. Then “…erm, I’ve found about 70 other emails”.
The point is that much as FOI requires public authorities to disclose ALL of the requested information, there are all sorts of reasons why that might well not happen. Some might scream at their screen at this stage that this is further evidence of the incompetence and possibly corruption of the public sector. But I wonder how easy businesses or journalists would find it if they had to locate all information on a particular subject in their organisation? We make all reasonable efforts, but we’re not perfect.
To come back to the point at the start of this piece. Bearing all this in mind, what happens when we get one of those requests for “all correspondence held by the organisation on xxx”? Strictly, we should probably send out a global email to the whole authority asking every member of staff to search their email and paper files to locate correspondence on the subject. We should unleash an army of staff to read every file, every document, every inbox (and sent folder). But of course, we don’t. We work out who is most likely to hold such correspondence and we email them. If we didn’t, we would have to refuse every single request phrased in that way as it would breach the cost limit immediately.
What an excellent explanation of what can be a complicated subject. From my experience, if the original response is negative, the majority of FOI personnel welcome clarification of a request, and do their utmost to resolve awkward situations (such as the missing emails mentioned above). Although it must be said that there are occasions when some departments (who will remain anonymous) adopt a rather indolent approach to information searches, and still rely on the old ‘ have you tried searching The National Archives’ reply. Fortunately, this type of response is not the norm.
I would add that I am one of those who occasionally makes ‘blanket requests’ for ‘all information held…etc’. In mitigation I can only plead that sometimes it is the only way to prevent certain departments from doing the old ‘Whitehall two-step’ (being highly selective about which material they wish to release).
Thanks again for the explanation FOI Man.
A lot of this is built upon trust and the expectation that staff will do their best to assist you compile the necessary information.
I should imagine for a new FOI officer it could be quite a challenge as building those relationships across an organisation eases the collation process.
I do sometimes wish that there was a single search box for all systems/files electronic, hard copy or otherwise! As you mention in reality there are a multitude of systems and many people that must be consulted.
It is amazing how quickly 20 working days disappears.
Often searches and requests to colleagues for information can cause a “snowball” effect. Suddenly it gains momentum as files reference other areas, and staff suggest other departments and individuals to contact. It can broaden very quickly at times from an initial small beginning.
That is part of the beauty and excitement of working with FOI.
Mark – it’s great to see that despite the occasional trials, an FOI Officer can still find joy in their work. Yes, sometimes it can be very rewarding finding information.
Mike, glad you liked the post, and also that most of your experiences have been positive. A friend who is a Whitehall civil servant raised a wry smile at your description of the “Whitehall two-step”. I think there’s a place for the “all information held” type request; but hopefully my piece will help you understand on the occasion when you’re asked to redefine your request.
The scenario you’ve described makes me wonder what if the requestor wasn’t aware that there were other records that hadn’t been disclosed, but the PA comes back to you some months hence and says “oops…there’s a further 70 emails for that request”. Would you forward these emails on as a completion of the original request, and if you didn’t, would this be a breach of S.77?
It’s an interesting one, this. I would like to think that I would forward the emails, but it may be that practical reasons (eg caught up with other things by that point) could get in the way. It’s entirely likely that in some circumstances there would be pressure on the FOI Officer to let it go. s77 question is also interesting. There has to be an intention not to disclose, but a good lawyer could probably argue that that only applies to the period before you responded (ie that whilst you deliberately withheld it later on, it had not been the intention at the time the request was being processed). And don’t forget that at the moment the ICO can only prosecute under s77 within 6 months of an incident (remembering the Climate Change emails investigation outcome). So, arguably, if the emails came to light 6 months after you’d answered the request and you didn’t disclose, even if you were in breach, you couldn’t be prosecuted. And of course there still haven’t been any prosecutions under s.77, I think because it’s a very difficult one to prove.