A Tale of Two Commissioners

A few months ago I brought you a guest post from Dr Joe Reddington, an academic researcher who uses FOI as a research tool. I’m pleased to bring you a follow up post from Joe on his experiences of dealing with both the UK and Scottish Information Commissioners. I thought it was interesting as the feedback I’ve heard about the Scottish Commissioner’s Office has been largely positive, but this and Joe’s previous post give a different perspective. I should stress that as with all guest posts, any views expressed are the author’s and don’t necessarily reflect my own.

Hello again!

In my previous guest post I wrote about problems with burden of proof in the Office of the Scottish Information Commissioner (OSIC). Today, I’ll highlight another issue with OSIC.

Recently I completed a study into the supply of communication aids and, in the process, built an open-access data-set for other researchers. It was a worthwhile project that’s been (I believe) able to make a small difference in the lives of people I care about. The project required a set of FOI requests to be sent out to NHS services to find out what equipment they were buying to help people speak (The study report includes some thoughts about the Freedom of Information processes).

Of course, even though both sides take every effort to minimise them there are always confusions, miscommunications, and the like that can generally be straightened out by a phone call (I don’t think it’s coincidence that the two cases I’m about to talk about had an effective policy of either not answering the phone or simply refusing to discuss). Sometimes you can’t straighten them out, and so you have the option of asking the ICO or OSIC to review the case.

I recently had two of these finish in the same week, and I think it’s instructive to look at how the appeals were dealt with.

The first example is Suffolk County Council, which was a fairly difficult request for a few reasons – emails ignored, phone messages ignored, the public body counting any reminder as a separate FOI request and a complete refusal to engage in a way that was outside of the algorithm they were using, even to the point of repeatedly stating variations on “We’ve given you our answer, if you have any further requests contact the ICO”, which is an interesting attitude because it suggests that the ICO is so unlikely to take action against a public body that the public body feels comfortable just using them as their customer relations department. As it happens I don’t believe there was malice in this, but I do think that nobody in a council suffers if the FOI team is very understaffed…

(While I’m on the subject, I do think that the below, is an *interesting* interpretation of the internal review process….

Image text reads:"I take your point about an internal review prior to matters being referred to the Information Commissioner. The legislation does, indeed, require such a process. Without stating that explicitly, I took your telephone call and e-mails to be just that, i.e. dissatisfaction with the how the requests were handled and so, in effect, a requirement for a review - which is what I did and then endeavoured to answer your concerns. Hence, the suggestion that you refer any continuing dissatisfaction to the ICO."

So I contacted the ICO, gave the details, and made it clear that I wasn’t looking for anything punitive, I was just looking for data so that I could have something to work with. Granted it took a long time to work it’s way though the system (eight months), but when it did reach an officer, they paid attention, checked what the problems were, kept both me and the public body in the loop and eventually brokered a compromise (for those keeping score at home it turned out that the LEA simply hadn’t purchased any equipment, which is worrying, but not in a way that’s relevant to this post). As it happens, the ICO are going on to address a number of procedural things that the LEA did incorrectly, but that’s beside the point. A conversation was had, and as a result of the conversation the relevant data reached the public domain, and can be used for the public good, and that’s largely because the investigating office took the time to pay attention to the principle not the algorithm.

So that’s the good (apart from the eight month backlog) approach.

By contrast, I also just had a case concluded with OSIC. I’d made a request to Borders NHS Health Board in January 2012 and, to be fair to them, they had provided some data that was relevant, but hadn’t actually provided the bit that we were studying (they gave a list of a few purchases, but didn’t have the years of purchase, which is important for us because equipment purchased this year is probably still working, but equipment purchased in 1990 probably isn’t). Over the next year I emailed periodically and politely, I rang semi-regularly, and got a range of different reasons that contradicted each other, and was just bounced around a system that was made up of people who were too busy. Eventually it escalated to an internal review and after over a year of chasing I filled out the form in January 2013 and sent it to OSIC. (This is actually the same request I looked at in my previous post, but I’m now looking at a different aspect of it).

On the 11th of Feburary I got this response:

As you did not request a review within 40 working days of receiving the authority’s  response, your application is not valid in terms of section 47 of FOISA and the   Commissioner does not have the power to carry out an investigation into your case.   I have reviewed your application and note you did not request a review until 3   December 2012, some 10 months after the initial response dated 8 February 2012.   An authority is not obliged to carry out a review if it has been submitted out with the   40 working day timescale. I note the authority’s letter of 4 December 2012 states that   they will not be carrying out a review. I’m afraid the Commissioner cannot ‘make’ an   authority carry out a late review.Personally I think this is a pretty awful constraint because it is a direct disincentive for the public to engage with the authority, to open a dialog, to withdraw the bits of the request that are genuinely difficult in favour of getting the information that is most important and all of those little ways humans can make the world easier for each other. But fair enough, them’s the rules. I hadn’t read the fine print, I should call a spade a spade and give up. Clearly the time I’d spent badgering, being nice, making phone calls and reminding people was not the way public engagement is meant to work – it should be immediate legal sanction or nothing…

But here’s the crazy bit. The lady at the other end of the phone told me I should just make the same request again. Then it would be fresh and if the same answer was given, then they could investigate.

Let’s replay that, the OSIC has a rule which I don’t particularly agree with, but can largely understand where they are coming from in terms of reducing workload and the like. But the fact that their staff can recommend a course of action that just duplicates effort is beyond me.

Sending the request back in to NHS borders was the first time I’ve ever been embarrassed about an FOI request. As you can imagine, Borders, on the last day of the requisite 20 working days, sent me the same reply as they had the previous year. I’d been assured by OSIC that I had to ask for the internal review again so I did and 40 working days later we were back to the starting point again.

FOI campaigners are often accused of wasting the time of public authorities, but I think we can agree that this ‘well apply again’ approach is not a process that improves public engagement and trust of public bodies…

 

 

 

One comment

  1. Amrod says:

    In fairness it is worth making the distinction that under FOIA there is no formal requirement for an authority to undertake a review but under FOISA there is which might make the scottish system less flexible.