FOIMan suggests a protocol for dealing with disruption to FOI handling during the coronavirus crisis.
Last week I wrote a post arguing that it wasn’t necessary for the government to suspend FOI during the current crisis, and instead suggested a pragmatic approach was called for. Prompted by an email I received earlier today, I thought I would put some flesh on the bones of what that pragmatic approach might look like in case it is useful for anyone in public authorities.
In my previous post I mentioned that some authorities had called on the government to use the Coronavirus Bill (now an Act) to suspend FOI. This was unsuccessful. I have heard suggestions that requests could be refused under s.38 of FOIA on the basis that if staff have to spend time answering requests, that will impact on a hospital’s ability to save lives. Section 38 only applies if the disclosure of information would (or would be likely to) endanger individuals. It is the effect of the disclosure that is protected against, not the effect of having to deal with the request itself. So this is not an answer either.
That said, nobody is going to argue that it is more important to answer FOI requests on time than it is to save lives. I’ve worked in a hospital, and occasionally doctors and nurses have the information needed to answer an FOI request; more frequently, senior managers including medical and nursing directors, who at the moment will be coordinating their institutions’ efforts and acting as contact points at a national level, will hold the requested data, or at least need to approve its release. The current crisis is so great that information governance and FOI staff are being temporarily redeployed in some organisations. In other authorities the impact may not be so acute, but the need to keep essential services going whilst a significant proportion of staff are self-isolating will mean that they have to prioritise the most urgent tasks. FOI requests are not urgent – at least not in the current context.
So what can a public authority do? As I suggested last week, it comes down to adopting a realistic, pragmatic strategy. If it is documented, so much the better, and it would look something like the following:
- FOI web pages are updated to alert potential applicants that in the current crisis it is likely that responses will be delayed
- if FOI staff are working from home and won’t have access to physical post, the website should also warn that requests sent by post will not receive attention for the time being (the ICO itself has done this)
- automatic acknowledgements to emails sent to the FOI inbox should similarly warn applicants that there are likely to be delays
- received requests should be triaged – some requests will be relatively straightforward and should be answered to limit the size of any eventual backlog; those that require input from staff that are either absent or busy on the frontline can be queued for attention at the appropriate time
- frequently asked questions, once an answer is available, should be published online so that applicants can be sent a link to the relevant web page; FOI officers may work closely with communications/public relations colleagues to achieve this
- when possible, the more complex requests will be dealt with but with less emphasis on the statutory deadlines than would normally be applied
- consider whether additional resources will need to be made available temporarily to process the backlog when the current crisis is at an end, and if so, prepare the business case for those resources so it is ready when the time comes
- given that some responses may be considerably delayed, it may be appropriate to check with applicants whether they still require the information that they requested.
The ICO has already hinted that it will handle complaints sympathetically if it is clear that responses have been delayed due to the coronavirus crisis. I don’t think this gives public authorities licence to refuse to accept any requests received during the next few months. It means that as long as they are able to show that they made best efforts, the ICO is unlikely to take formal enforcement action. Being able to produce a documented strategy for dealing with the inevitable impact of COVID19 on FOI compliance will demonstrate those best efforts being made.