Tag Archive for 20 Working Days

It’s about time

FOIMan highlights a change in the final version of the recently revised s.45 code that confuses rather than clarifies FOI deadlines.

Cabinet Office

Last November the Cabinet Office published a draft of a revised s.45 code of practice. I summarised the content briefly here on the FOIMan blog at the time, and later wrote a more in-depth piece for PDP’s FOI Journal, which you can read here. An even more thorough (and critical) analysis was produced by the Campaign for FOI in its response to the consultation on the draft code.

Back in July the final version of the code was published. Not a lot had changed but what had isn’t to be much welcomed. One particularly regrettable change simply adds more complexity to an already confused issue.

One matter of repeated debate between practitioners and those using the Act is the seemingly indisputable matter of when a request is received. This has caused particular confusion in relation to requests received by public authorities over a weekend or on any other non-working day.

In fact, it shouldn’t be a difficult question to resolve. The wording of the Act itself offers a clear solution. At s.10(6) it defines the ‘date of receipt’ as ‘the day on which the public authority receives the request for information’. Note that it talks of ‘the day’. Not ‘working day’, a phrase used elsewhere in s.10. So the day of receipt can be a Saturday, for example. The first working day – day one for the purposes of FOI – is the following Monday. This is the approach taken by the Information Commissioner in her guidance (see paras. 36-39).

What’s more, the draft of the revised code also followed this interpretation at paragraph 4.2:

The date on which a request is received is the calendar day on which it arrives… If a request is received on a non-working day, for example a Saturday, the next working day i.e. Monday, should be counted as “day one” towards the deadline.

But look what the final version says (with my emphasis in bold):

The date on which a request is received is the day on which it arrives or, if this is not a working day, the first working day following its arrival.

It is not clear why the approach was changed, but changed it was. The Cabinet Office’s final choice of wording potentially buys public authorities who follow it an extra day when answering FOI requests, yet appears to contradict the Commissioner’s guidance, and more importantly, the wording of the legislation itself. It will be left to the Commissioner and tribunals ultimately to decide which approach they think is correct if this is ever in dispute. I would suggest that it is most likely that they would plump for the wording of the legislation over what the Cabinet Office wishes it said.

Ultimately this is an argument over a day. And given that FOI also requires requests to be answered promptly, it is perhaps academic to a degree. But it does seem unfortunate that the Cabinet Office has chosen to sow yet more confusion over the interpretation of FOI, when it had an opportunity to provide clarity.

Get in touch if you would be interested in training on FOI, including the new code of practice. The new code is covered extensively in my forthcoming book The Freedom of Information Officer’s Handbook, which is due out in the next couple of months. Details on how to pre-order (and obtain a discount) can be found opposite.

January – the FOI Officer’s Hangover

FOI Man makes a plea for patience from those who made requests before Christmas.

January – it’s a hard month for all of us, isn’t it? Most of us have had at least a few days off over Christmas and new year, so getting into the swing of things is always tricky. And many of us have been lucky enough to have almost a fortnight away from the office. And then we come back to the darkest days, a pile of work and no holiday in sight.

SOAS, my own organisation, shuts down completely for the whole of Christmas week every year. Even if I wanted to I couldn’t be in the office to deal with FOI requests and other matters of a pressing nature. Some other FOI Officers will be in the same boat. And even when the office was open before Christmas, the availability of colleagues to answer queries and discuss how to answer requests was, as ever, in long slow decline during December. So even the welcome discovery that we have an unexpected extra day  is little consolation to the returning FOI Officer facing a rush of FOI deadlines, having lost the meat of the time allowed – between one and two weeks – to work on the requests.

Generally speaking, I’d advise any requester to avoid making requests during December if their need for a response is urgent. But if you did feel the need to submit an FOI request during December, please do retain a little festive goodwill and be patient – it may well take a little longer for some authorities to respond at this time of year, despite their best efforts.

I’ll be writing a regular column for PDP’s Freedom of Information Journal this year, and if you want to know more about how 20 working day deadlines work, my first article will be on that very subject. Watch this space!

School’s out for summer

FOI Man pours himself a cold one and considers the implications of the summer break for answering FOI requests.

It’s that time of year again. The roads are less busy, there are seats on the buses and trains first thing, and the office is eerily quiet. Yup, school holidays have started.

So what are the implications for FOI, I hear you ask. Well, aside from the obvious response that perhaps you should consider a holiday too, here are a few thoughts.

Legally, most organisations still have to respond within 20 working days. The main exception is schools. They get more time to do their homework (20th school day after receipt or 60 working days, whichever is sooner) in school holidays. Other exceptions are in place for information dependent on members of the armed forces in action, information held abroad, and public records in the National Archives or ‘Places of Deposit’.

Everyone else has to respond within normal timescales. Having said that, of course, let’s not forget the practical side of this. Often a public authority will only have one FOI Officer, usually with other responsibilities. As with other work, it’s usually the case that when they go away, somebody else is in place to deputise for them. But that person will obviously have to fit in the FOI work (and possibly other duties) with their own job. They may not be as expert in FOI as the regular guy or gal. So if something tricky comes in, there is a good chance that delays will occur.

Even if the FOI Officer, dedicated as he or she is, doesn’t go away, there may be other problems. As we’ve discussed here before, answering FOIs relies on asking people across the organisation to provide the relevant information or to explain why it can’t be disclosed. And you’ve guessed it, at this time of year, a lot of those people are on their hols.

In some parts of the public sector this is a particular issue. Think about universities for instance. Academic staff tend to go away not just on holiday, but often carrying out field work in the summer break. So if someone requests information that is only held (or might be held) by a member of academic staff, that is going to slow things up considerably.

It’s not just answering requests. If somebody requests an internal review, the pool of people who can carry these out is often pretty restricted at the best of times. Normally it has to be somebody at the same or a higher level than the person who approved the response, and really they shouldn’t have been involved in answering the original request at all. In complex cases, that can mean that there are only one or two individuals who are able to look at the review. In holiday periods, trying to pin that person down to consider an internal review becomes even trickier.

So, legally, public authorities should be responding within the usual timescales at this time of year. But if your response is a few days late, try to be patient. Shut down your computer, go and get a beer from the fridge, and chill out for a while. Meanwhile, we’ll be doing our best to get an answer to you as soon as we can. Spare us a thought over that beer.

Is a reply within 15 days “as soon as possible”?

A local authority disclosed information requested through EIR within 15 days. But the Commissioner has ruled that they failed to answer the request “as soon as possible”, even though they answered well within 20 working days.

This isn’t an April Fool’s joke, despite the date. An interesting decision notice has just been published by the Information Commissioner relating to a request made under the Environmental Information Regulations (EIR). The requester had asked for information from the Local Land Charges Register of Walsall Metropolitan Borough Council.

The council had arranged access to the Register within 15 days of receipt of the request. But the Information Commissioner has ruled that this was not “as soon as possible” as required by reg.5 of the EIR, even though it was within the 20 working days maximum allowed.

I can hear the hiss of the steam escaping from FOI Officers’ ears around the country right now. If the information was provided within 20 days, how can it breach regulation 5? Does this mean that we have to tell our colleagues to drop their other work as soon as an EIR or even an FOI request is received?

Well, hold your horses. The Commissioner accepts that public authorities have to balance their responsibilities. Phew. The requester had also argued that the council could have responded sooner because it responded to land search enquiries, which are paid for, within three days. The Commissioner accepts the Council’s argument that there is a different process for answering EIR requests than for dealing with Land Charges enquiries and that there are good reasons why it takes less time to answer the latter.

So why did the Commissioner find against the council? During his investigations, the Commissioner was told by the Council that one of the departments that had been asked to provide the information had accidentally deleted the email from the FOI team asking for the information. The Commissioner concludes that if that hadn’t happened, the information would have been provided sooner. Therefore, he argues, the information was not provided “as soon as possible”.

Expect more decisions like this on FOI and EIR as the Information Commissioner’s Office are clearly now trying to push authorities to answer requests more promptly.

What don’t we like about What Do They Know?

A few weeks ago, Ibrahim Hassan posed the question “Can a local authority refuse to deal with FOI requests made through the What do they know website?“.  When the question was posted as a link on twitter, there was a veritable dawn chorus of negative responses. But why has the website What Do they Know become so unpopular with some public authorities?

I can think of a few reasons, and I’m going to set these out. Try not to get too incensed though if you’re a What Do They Know (WDTK) volunteer or user and read to the end of this post – you may be surprised by what I have to say.

Firstly – it’s my old hobby horse, the attitude towards public authorities. Maybe it’s justified, I’m not sure, but there’s an assumption in their guidance to users and in their templates that we’re going to use every means at our disposal to avoid answering requests.  And therefore their users should be prepared for evasiveness.  Subtle, and polite, but it’s there. And can their guidance to FOI Officers on timeliness of responses be any more patronising (see especially “How do you calculate the deadline shown on request pages?”)?

Then there’s the double standards. Whilst insisting that public authorities have a duty to comply with the legislation, they provide guidance on how to sidestep the requirement for requesters to provide their real name (which is, of course, a duty for requesters to comply with – quid pro quo). Meanwhile, whilst promoting openness, they haven’t exactly made it clear to those responding to requests submitted through the site that their names and contact details will be published on the website. OK, so most FOI Officers are well aware of that now (and probably wouldn’t mind), but often it is staff who are responsible for a subject area, who may well not know much about the wider FOI world, who are answering these requests.

There’s the ease with which requests can be made. It takes seconds for a requester to submit their request through the site, and not much longer to send it to several. They don’t have to consider what resources will be used in those public authorities to answer the product of their idle curiosity. The same can apply to the new facility to submit ‘one-click’ requests via Openly Local. Yes, people have a right to make requests. But these sites make it easy for individuals to ignore their responsibilities.

Perhaps as a result of this, WDTK can be utilised as a weapon against public authorities. WDTK recently tweeted about a response sent by one of their users to Salford University, who had refused their request under s.14, claiming it was vexatious. I took the opportunity to check the background on the site, and it is very clear that whatever the rights and wrongs of the University’s treatment of that particular individual, there is some sort of campaign under way for which WDTK was being used in support. I don’t know the background to the ongoing dispute, but it is now being waged through the pages of WDTK. It wasn’t just those individuals who started off using the site in this way that suffered, or the staff of the University. It was anyone who then made requests through the site, as it was becoming more and more difficult to identify who was part of the campaign and who was not.

Finally, copyright. This has proved to be the key battleground in the dispute between WDTK users and public authorities. The most high profile combatant has been the House of Commons, but they’re not the only one by far. The argument made by public authorities is that if they disclose information via WDTK, it will instantly be published in breach of their (and third parties’) copyright. Several have therefore found more and more convoluted ways to try to comply with their FOI obligations without sending the information to the WDTK site. The Information Commissioner issued a decision notice following the House of Commons case which should be the final chapter on this dispute but it hasn’t proved to be so far. Not least because the Information Commissioner’s Office doesn’t appear to have a great deal of knowledge about copyright law, so it makes it quite difficult for them to be authoritative. Take for example, this quote from page 3 of the minutes of their recent meeting with the HE sector:

“The ICO acknowledged that further work needed to be done around understanding IPR [Intellectual Property Rights] as it resides in research data, and SW [Steve Woods, former FOI blogger and in charge of policy at the ICO] confirmed that his team has already begun to explore this question.”

Could it be that the ICO is only beginning to look at IPR/copyright issues generally and not just specifically as it relates to research data? There certainly isn’t much to go on in the decision notice.

So for all these reasons, public authorities are, to say the least, suspicious of WDTK. And yet…and yet…

I rather like WDTK. It’s a nice bit of technology that appears to work well (contrast that with many systems developed by the public sector). I’ve used it to make FOI requests and found it easy to use. It keeps track of the process of making a request really well.

It was really easy for me to see the background to the Salford University situation. It would be easy for me to identify vexatious requests being made through the site (even if they soon became difficult to distinguish from the other requests). I can see readily how other authorities are responding to requests that come to my authority. It’s transparent, which is, well, the point of all this.

I’ve got an idea, which fellow FOI Officers may well disown me for. But why don’t we embrace it as a concept rather than fighting it? For example, couldn’t we adopt it as our Disclosure Log? Actually encourage requesters to use it so that our answers to them can help others and maybe prevent duplicate requests? It’s a thought, and on that thought I shall strap on my hard hat and leave it to you…