What Do I Know? A Postscript

Well, this blog has come of age this week. The Campaign for FOI described my last post as “Interesting and provocative”. And it certainly has provoked more comment than anything I’ve previously written.

Before addressing the most controversial issue raised in the comments, I just want to highlight some great advice that WhatDoTheyKnow have given to FOI Officers if they want to follow my suggestion and encourage their requesters to submit requests through WDTK (to facilitate its use as a Disclosure Log):

  • The simplest method is to link to the WDTK site – you can link directly to the part of the site for your organisation – WDTK have no problem with you doing this and you don’t have to let them know you are doing it
  • I would suggest that if you’re going to do this effectively, you should at the very least provide instructions on your website to potential requesters explaining how they can make their request through WDTK alongside your direct contact details; it’s up to you how far you promote this as a method of making requests (ie is it your preferred method or just one of several?)
  • Alex from WDTK has suggested that “If an authority wants to go a bit further, e.g. by having all their requests on the site or wanting a branded request service, then they should talk to us in the first instance to discuss their requirements.”

So there you go, those are your options if you want to try this out.

The most controversial of the points I raised related to the suggestion that WDTK advised requesters on how to avoid providing their name when making requests. I’ve got to say that at this stage I’m unapologetic about this point (though if I’m persuaded otherwise I may post on this topic again). My reasons for this are:

  • It’s there in black and white at section 8 – a request is only valid if it “states the name of the applicant”; the Information Commissioner also takes this view and explains why in his guidance (CFOI disagree with the Commissioner on his view)
  • There’s good reason – much as you as a requester may not like it (especially if you are on the fringes of acceptability when it comes to your dealings with the authority), if we don’t have a name, it is difficult to identify requesters that are making repeat or vexatious requests, or to apply the fees regulations where costs could be aggregated
  • It costs money to answer requests; arguably we should not be spending this money on requests that are not valid, or can be refused for other reasons. We have a duty not just to those who use FOI but also to other taxpayers.

To me, it always comes back to the Act itself. Someone commented that ‘vexatious’ is “redundant and subjective”. It’s not. A vexatious request is defined in the Act and in numerous ICO and Tribunal decisions now. The ICO’s guidance is clear on when it can be applied. We are not talking about vague concepts here, but about specific behaviour which goes beyond what public officials should be expected to put up with. In 6 years, I’ve only used section 14 once, and this was for an individual who had written well over 100 times (not all FOIs) in a year, and had made threats of physical violence to a politician at the authority. But to apply it depends on being able to demonstrate who is making the requests in the first place.

I completely accept that some people might have a reason for remaining anonymous (CFOI cited an example where someone lost their job as a result of making a request). And ultimately, who’s going to know if you do use a (subtle) pseudonym? But I stick by my view that in general, if you’re making a request you should follow the rules just as you expect a public authority to do.

In passing, I should recommend a blog posting from a barrister on WDTK’s liability if they publish documents containing libellous material. This wasn’t an issue discussed in my post, but is certainly of interest.

Thanks for your continued support – nearly 1400 of you have read the blog at some point in the last 6 weeks, and whether I agree with you or not, its also great to receive your comments. Do continue to spread the word – if you have access to other forums or blogs, please do mention this blog if they touch on subjects I’ve discussed. More next week.

No comments

  1. James Burke says:

    I would be interested in your thoughts re: vexatious and this WDTK FOI request – http://www.whatdotheyknow.com/request/subsidiary_companies_and_clawbac#comment-13569

  2. John Cross says:

    I am a whatdotheyknow volunteer but commenting in a personal capacity. I just wanted to post a quote of a speech in Parliament:

    “The Freedom of Information Bill makes provision for an application to be purpose blind. It requires that an applicant must apply in writing, which includes any electronic application, and provide an address. These are commonsense provisions which are necessary to ensure that a public authority can carry out its statutory duty to communicate information to that applicant. The Bill assumes that an applicant will wish to give his real name, but nothing requires him or her to do so or to use any particular name. He can call himself Father Christmas, or even Ralph Lucas, if he desires. In any event, the name is not relevant, as long as the information provided is sufficient to identify the applicant for the purpose of communicating information. We believe, therefore, that the first amendment is unnecessary.”

    Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)

    I am not saying FOI man is wrong – I am just saying that legislators may have listened to this when they voted for the law as it is now written.

    http://www.theyworkforyou.com/lords/?gid=2000-11-14a.183.7

  3. FOI Man says:

    John
    Thanks for your comment. I’m aware of this quote from Hansard, which was also referred to by the Campaign for FOI. However, I’m also aware that there are quotes that support an alternative interpretation! I’ll try to dig these out when I get a moment. In a sense, of course, what I’ve said doesn’t actually contradict this; I’ve acknowledged that there may be circumstances in which people do feel they have to do this. I guess what I’m really saying is that whilst there’s nothing stopping people from using a pseudonym in practice, they shouldn’t necessarily feel aggrieved if their requests are turned down on that basis, where it is clear to the authority that they are doing so.

  4. FOI Man says:

    James, re your comment above about your WDTK case. I’d rather not comment about individual cases – I’m not in a position to know the full background. However, the best starting place if you want to understand what can legitimately be classed as vexatious would be the Information Commissioner’s guidance that I linked to in my post above.