Tag Archive for Business

What’s wrong with FOI?

FOI Man makes the case for and against FOI and more transparency – what do you think?

It’s very easy for an FOI Officer to find fault with FOI. But hopefully regular readers will have picked up by now that I support FOI and moves towards openness in the public sector.

Unlike some, I don’t have any beef with particular groups who use FOI. Let’s look at the usual suspects.

Of course businesses use it to draw up contact lists for marketing, or to build databases which they will then sell at profit. It’s their right, and those who promote FOI in Government think this is a “good thing”. It is a mechanism that allows information collected or created at public expense to stimulate the economy. It is a strong justification of FOI in a largely market-based economy. It is why Conservative, as much as Liberal Democrat and Labour supporters, feel able to support openness initiatives.

Students use it to research their degree projects. So what? It’s good that they have the nous to use a facility such as FOI. We only have to provide what we have and if the cost is excessive we have an answer to that. It’s frankly not true that, as some would have it, we have to do their work for them – if information is publicly available to them, we just have to point them in the right direction and if necessary cite the exemption for information that is otherwise accessible.

It’s a good thing that journalists use FOI. I’d rather see stories based on evidence that I’ve helped provide than see badly researched sensationalism in the papers. Surely I’m not the only FOI Officer that gets a buzz when I see something I’ve provided mentioned in the Press? I sympathise with those who have become jaded because of the attitude of some (not all, or even most) journalists, and the way that some disclosures have been presented, but the answer is to remain positive and open, not to become defensive. Otherwise we just reinforce negative attitudes to the public sector in the media.

Users of WhatDoTheyKnow are using a service to make requests. It’s marginally easier to make a request using it than sending an email. Some will abuse that ease, but that’s going to happen with any route made available. And by engaging with those who work for and with WDTK, we have an opportunity to encourage responsible behaviour amongst requesters.

My point is that we can’t have a right and then quibble about who’s “allowed” to use it. And FOI is an important right. Whether we like it or not, it has become an internationally recognised badge of a free and democratic society. It’s as much about demonstrating our aspirations as a modern and progressive country as it is about accountability and transparency. This is one reason that I was disappointed by Tony Blair’s admittance in his autobiography that he considered FOI a mistake. If that’s true, that’s not only hindsight, but also short sight.

That said, of course, it’s very easy for supporters and users of FOI to become blinkered. One of the vaguely articulated aims of this blog is to demonstrate the impact that the legislation, and people’s use of it, has on public authorities and the services that they provide. It is neither perfect nor pain-free. And maintaining it, somewhere down the line, means choosing between FOI and provision of other services.

I’ve said previously that I am irritated by statements such as “it’s our information”. Aside from the fact that it is legally inaccurate, it is hopelessly impractical. Information is collected by public bodies so that they can provide the services that some or all of us rely on. Often, the provision of those services will be compatible with, and may even be served by, disclosure of the collected information to the public. But on occasion, it just isn’t possible, and it wouldn’t be in our interests (as a society) to do so. It’s not that I view Government as always benevolent and paternal, or take a view that we should accept what we’re given without question. But I do accept that at least some of the time, things work better without me or others knowing every last detail. If only because the physical means of disseminating that level of information will get in the way of the provision of essential services.

If FOI and other transparency initiatives are going to work, they have to be managed as a process. That means, I’m afraid, refusing requests that will cost too much. Recognising that some people do abuse the privilege and turning them away. And using exemptions where we have concerns over the impact of disclosure of certain information. It means thinking carefully about the resource implications (I know, dirty words in the public sector at the moment) of more transparency. I think it also means looking at how transparency and FOI can contribute to the wider aims of the public sector. It has to be more obvious to public servants what the point of openness is, beyond satisfying curiosity. Can it help us make the savings expected of us? Are there ways that it can be built into our processes to make them more (and not less) effective? What are the wider benefits to our society?

So what do you think? Do you have any ideas about the future of FOI and how it can be made to work better? I’m particularly interested in hearing your constructive comments on FOI and transparency (rather than the knee-jerk reactions that we’re all prone to when we feel very strongly about something). Let me know by commenting here, or via Twitter (@foimanuk).

Who will know if you make an FOI request?

Last week I posted about the NHS Information Governance Toolkit and its FOI requirements. David Higgerson highlighted in his blog on journalism the rules that NHS FOI Officers are expected to follow in relation to ’round robin’ requests. David was particularly concerned that this undermined the principle that requests should be processed in an ‘applicant blind’ manner. It started me thinking about what we circulate internally about requests and, more especially, requesters.

This whole issue of how requesters’ details should be handled is a fraught one for FOI Officers. Many of them are also responsible for Data Protection compliance in their organisations and are only too aware of the importance of protecting personal data. They are also keen to maintain the ‘applicant blind’ principle themselves.

In my experience, this can put them on a collision course with politicians and senior officials in their organisations. I’ve heard of FOI Officers and other staff being bawled at by very powerful people because they refused to provide this information. I’ve also heard of individuals who have decided to leave public bodies after being put under pressure in this way.

My own approach to this tricky issue is to routinely remove names and contact details from requests before circulating them. If someone wants to know who has made a request, I will initially tell them what kind of requester has made the request (eg private individual, journalist, business, etc.). If they insist on having a name, I will consider whether they have a legitimate need.

So what would I consider to be a legitimate need?

I would generally feel that the Press Office have a legitimate need to know the name of a journalist if they ask. The reason for this is that they may well be dealing with the same journalist themselves; it’s their job to oversee relations with the Press.

I routinely provide the Press Office with details of requests received from journalists (though not names unless they specifically ask), and where requested, I will also let them see a draft response. I can understand that might raise eyebrows. But I honestly don’t believe that automatically prevents the request being dealt with in an ‘applicant blind’ manner. The request will still be coordinated by the FOI Officer (or departmental staff in some organisations), the same information will still be sent out. It is just that the Press Office have a ‘heads up’ for any impending news story about the organisation. Even the Information Commissioner recognises that Press Officers will want to (and indeed should) work closely with FOI Officers.

Where I would draw the line would be if the Press Office insisted that the response should be different because of who the request is from. The reality is generally that the Press Office are more likely to change their line if it is out of synch with the FOI response (and by comparing notes, we may actually identify any errors in the response). Any sensible Press Officer is going to realise that they can’t interfere with a legal requirement. They might suggest different ways of saying things, but there is rarely any question (in my experience) of them changing the information that is going out.

It is arguable that it is ‘fair’ (to use the Data Protection Act terminology) to share the names of requesters making requests in a business capacity. Examples would be where it is clear that the request is being made by someone on behalf of the body corporate (eg they use a corporate email address; their signature includes their employer’s details; their letter has a corporate letterhead). I still wouldn’t routinely circulate a name, but I’d feel slightly better about it if asked.

There may be circumstances where individuals within the organisation need to know who has made a request to apply the Act itself effectively. For instance, if the case is being made to aggregate the costs of compliance with a series of requests, or to class a request as vexatious, the history of that individual’s contact with the organisation is likely to be a relevant consideration.

The crisis point for me would come if I felt that it wasn’t ‘fair’ to share the details and that there wasn’t a legitimate need. If the Chief Executive insists on knowing who made a request without providing adequate justification, how do I deal with that? Ultimately, under enough pressure, I know that I am likely to provide the information, as to be frank, I may well not have a choice. But first I would at least try to persuade them that they either don’t need a name, or at least to provide me with some sort of explanation as to why this is justified.

For this reason, I would always advise requesters to assume that their details will be known to anyone in the organisation they make their request to. Most of the time, for most people, that will probably not be a problem. However, I was recently asked for advice by someone who wanted to ask for information held by their employer, and I could only advise them that their best approach would be to use a pseudonym. I don’t generally condone that, but if anonymity is important, then that’s really your best option (and if your pseudonym is credible, the FOI Officer is not going to know – so you can avoid your request being refused under section 8).

Should I be working for private businesses?

No, I’m not about to do an Iain Dale and pack in the blog. Nor have I prepared my resignation letter in readiness for the launch of my new start-up. But, like many FOI Officers (and others in public authorities who answer requests), I spend a goodly quantity of my time preparing information for the commercial sector.

Now, in principle, I don’t have a problem with this. Everybody has a right to information under FOI, and unlike the Campaign for FOI, I’m not even particularly keen on the idea of making business pay for information. But, on that basis, I don’t think business should get a ‘better’ service than anyone else.

Today I’m working on one of my least favourite kinds of request. It’s not particularly difficult to answer, but then that’s part of the issue. The request asks for the names and contact details relating to a long list of job titles in our IT department. And insists that I specifically create a spreadsheet containing the information.

The point is that my organisation is actually pretty open compared to many public sector bodies (more open than I really feel comfortable with when I swap my FOI hat for my Data Protection hat). We have most, if not all, of this information on our website. There is an exemption at section 21 for information that is accessible to the applicant by other means, and if this isn’t the time to use it, then I can’t think when else it could ever be used.

But of course, it isn’t that easy.  Section 11 obliges us to provide information in the format requested “as far as reasonably practicable”. And as the requester has helpfully pointed out through various links and quotes provided in their request, the Government has recently made clear that we should be bending over backwards to provide data to businesses.

In practice, I could (and probably will) do what is being asked. But I know it irritates colleagues, as it does me. It galls on at least two levels. Firstly, is it really appropriate for me as a public employee to spend time (and therefore money) doing the requester’s job for them, effectively doing the research (which they could easily do themselves) and the data entry? Secondly,  when they get that data, presumably they will then use it either to (a) send unwanted marketing emails to the staff listed, or (b) sell the data to other companies who will send unwanted marketing emails. Sometimes there’s an even better (c) where they try to sell public authorities the database effectively created by their own employees.

Disclosing this data doesn’t make us any more open or accountable. Most departments in public authorities provide generic email addresses through which legitimate marketing emails (and other enquiries) can be sent and if the product or service is of interest, they will be followed up. Targeting individuals is likely to annoy potential customers more than win them over. Yet requests like this one keep pouring in to public authorities across the country.

Don’t get me wrong – as I said at the start of this piece, I accept that we have a duty to provide information that is requested. And as regular readers will know, I’m a supporter of FOI and the rights that it gives people (I wouldn’t have a job without it!). But this is an example of a common type of request that puts our backs up. If you’re working for a business, and you’re putting together a mailing list, a plea – please, please, if you value our sanity, at least do a little research first before asking a public authority to provide you with contact details under FOI. And carefully consider whether your request might ultimately lose you potential business.

Barmy FOI Requests

Question: When is an FOI request not an FOI request?
Answer: When it’s a marketing ploy…

“Could you please answer the following questions

1. Which of the following options best describes the Organisation’s policy for recruiting interim/contract staff:
a) We have a documented policy to recruit via specific agencies
b) We have a documented policy to recruit using [our company]
c) We have no fixed documented policy for recruiting interim or
contract staff

2. Is your HR Director / Head of HR aware of [our company] as an alternative to paying for recruiting interim staff?

3. Does your website contain a link to [our website]?”

A fellow FOI Officer received this recently. As they commented in their email to me, “an advert/spam email quite creatively wrapped up in an FOI request so we’re forced to respond to it.”

Thankfully we FOI Officers are equally creative. Quite rightly, the response made clear that whether the Director was “aware of something” was information not held. And question 3 was refused on the basis that the information was otherwise available to the requester (section 21). As the Officer commented, “A good use of our time I’m sure you’ll agree.”

And Government wonders why public authorities might be reluctant to bend over backwards to help businesses using FOI.

Re-Using FOI – the Conservatives claim FOI for business

Interesting speech from Francis Maude, Cabinet Office Minister, at the Conservative Party Conference. It includes a section on ‘Transparency’. There is the usual blurb about openness, but the focus is clearly on making information available to business and voluntary organisations.

” Small businesses and voluntary organisations want information on which contracts are being tendered, so they can offer better and cheaper ways to deliver them…”

So far so reasonable, but how about:

“Thousands of commercial and social entrepreneurs have been frustrated by their inability to obtain and reuse datasets. I’m sorry to say that some councils spend time and money deliberately making data unusable to anyone else. “

My suspicion is that this is a reference to the refusal by some councils and other public bodies to disclose information through the website WhatDoTheyKnow.com (see here for an example). The Commissioner ruled that this approach was not appropriate when the House of Commons tried to refuse to send information to Whatdotheyknow.  I tend to agree that sometimes authorities have been bloody-minded about this. However, copyright specialists are, I know, uncomfortable with this ruling – they feel that the Commissioner has failed to consider copyright issues properly.

I’ve found that colleagues often resent being asked to provide information to businesses, feeling that the private sector is benefitting unfairly from public expenditure, and this may also be behind the attitude Mr Maude describes. Sometimes there is a view (not unreasonably) that disclosing information to business will lead to expense down the line for authorities. I know that all public authorities regularly receive requests for lists of contact details for their staff, which may seem reasonable, but are clearly intended to build up lists of contacts who will then be sent marketing emails. Many of you will sympathise with public employees who don’t want to be bombarded with unwanted marketing.

It seems that our new Government has little patience with these concerns.  They are proposing to amend the FOI Act “to ensure that all data released through FOI must be in a reusable and machine readable format, available to everyone and able to be exploited for social and commercial purposes”.  Fair enough, but let’s hope they consider any reasonable concerns from public authorities and address them in their new amendments.

Do please comment either by registering with the site or tweeting me – @foimanuk .