Tag Archive for FOI Journal

FOIMan’s FOI Inbox

FOIMan answers your questions in the latest issue of the Freedom of Information Journal.

I recently put out a call to practitioners for their FOI problems with a view to featuring them (and my solutions) in one of my articles for the Freedom of Information Journal. You can now read the results in what I hope will be the first of a semi-regular feature: FOIMan’s FOI Inbox.

Problems posed in the first of these articles are:

  • when can small numbers be refused as personal data (if you shouted out ‘five or less’ or similar just now, you can do three laps of the sportsfield – rounded up to five, of course – right now…go on, off you go *folds arms, raises eyebrows, P.E. teacher-style*)?
  • do public authorities have to provide an email address to which FOI requests can be addressed?
  • how do you work out whether information in the possession of contractors is held for FOI purposes, especially when many contractual relationships are so complex?

Thanks to Gillian, Sarah and Mark for contributing the questions this time around. If you’re an FOI Officer struggling with any FOI or EIR issues, please do get in touch with myself or the FOI Journal editor and I’ll try to answer your query in print in a future issue.

What we don’t know

FOIMan explains why some truths we cling to about the UK’s FOIA are not quite what they seem.

A few months ago I was delivering some FOI training to a local authority (always available at competitive rates, folks!). I was explaining how far council officers were expected to go when searching for information to answer an FOI request. In particular I stated that if it was known that information had been deleted but still potentially existed on a backup, the backup should be searched.

The council’s FOI officer cautiously picked me up on my assertion. They had, they told me, had a written statement from the Information Commissioner’s Office (ICO) that contradicted me. So surely I was wrong?

The truth is that despite what we are often led to believe, there are some aspects of FOI law that are not certain. The legal system has not yet settled on the ‘right’ answer. This is the case when it comes to debates about information held on backups and whether it is considered held. In the example above, neither I nor the ICO are technically wrong; but then strictly speaking we’re not right either. We’re both interpreting the existing law, and both interpretations are arguable.

This is because English law revolves around the concept of precedent. But precedent can only be set by courts that make a decision beyond a certain stage. In a recent Upper Tribunal decision (LO v Information Commissioner, [2019] UKUT 34 (AAC) (29 January 2019)), Judge Jacobs was critical of the Information Commissioner for treating decisions of the First-Tier Tribunal (FTT) as ‘authoritative statements of the law’. Strictly speaking, they’re not. When it comes to backups, we only have rulings of the FTT to go on, so there is no definitive answer yet on that issue. Interestingly, on this issue, the ICO choose not to accept the FTT’s approach without question in their guidance.

My latest piece for PDP’s Freedom of Information JournalWhat we don’t know (which you can access here) – looks at this issue in more depth – looking at the backups query, but also a couple of other questions which have not yet been answered definitively – perhaps surprisingly. You’ll see that there are disputes between the ICO, the FTT and the s.45 Code of Practice which will only be resolved if those matters reach the Upper Tribunal. It ends by asking what questions you may have about FOIA or the EIRs – as I’ve mentioned before, we’d like to answer some of your conundrums in a future issue of the Journal.

FOI and Procurement

FOIMan explores how FOI and transparency rules interact with the process of procuring new goods and services by public authorities.

freedom-of-information-graphic-smallOne chapter that didn’t quite make it into my book due to lack of space and time was going to focus on the interaction between FOI and procurement processes (though of course the book still includes useful tips for dealing with requests about contracts). I’ve sought to redress this in my latest article for the Freedom of Information Journal. You can, of course, subscribe to the journal, which contains lots of useful articles and the latest FOI news – details can be found opposite and at http://www.pdpjournals.com. However, you can also read the article here.

My next FOI journal piece will highlight what we don’t know about FOI – some of the ‘facts’ that we bandy around about the Act, but are not quite as set in stone as we might think…

By the way, we’re planning an experiment for a future issue of the journal. If there’s an FOI or EIR problem that you’ve never quite got to the bottom of and would like me to explore, let me know either directly or via PDP. I can’t promise to deal with every query submitted, but the aim is to answer a selection of queries in the article. If it works, we might just do it again. Even if you don’t subscribe to the journal, the eventual article will, as ever, be reproduced here. So if there’s something you don’t know about FOI, and think others might be puzzled by it too, drop me a line with ‘FOI Journal Q&A’ in the subject line and I’ll see what I can do.

 

FOI in English Local Authorities in 2016

FOIMan summarises the results of research into the numbers of FOI requests that local authorities in England received in 2016.

The new s.45 code of practice requires all public authorities to publish data on their FOI performance, but that hasn’t always been required. Outside of central government, the availability of reliable data on FOI request volumes is patchy to say the least.

Local government is reputed to receive the most FOI requests of all public authorities. Between 2005 and 2011, the Constitution Unit at UCL carried out valuable research into FOI in local government, including request volumes. The reports on their research can be found on the UCL website.

Since the 2011 report (on 2010), there hasn’t been any comprehensive data available on FOI volumes in local government in England (to my knowledge). As regular readers will know, I conducted some research into FOI in local government as part of the preparation for my book The Freedom of Information Officer’s Handbook. In Autumn 2017, I wrote to a sample of councils across the country and asked them a number of questions. Amongst those questions I asked for the number of requests received in 2016 and the number of those requests answered in 20 working days.

In my latest article for the Freedom of Information Journal I have reported on the results of these questions, and compared them to UCL’s research to examine the trends in council request volumes. It will come as no surprise to learn that request volumes appear to have continued to rise over that period.

If you want to read more about the outcomes of my research, other aspects (including how requests are managed and how performance is monitored) are explored in detail in The Freedom of Information Officer’s Handbook which will be published at the beginning of January 2019 by Facet Publishing. Details of how to order a copy at a discount can be found at the top of the sidebar opposite.

Back to the FOIA: FOI, historical records and archives

FOIMan writes about the relationship between FOI and the past.

Way back before I got involved with FOI, I started my career as an archivist. In my latest article for the Freedom of Information Journal, I’ve written about the complex relationship between FOI, historical records and archives. Both archives and FOI provide means to hold public authorities to account. So how do they interact – and is FOI damaging archives?

You can find out by reading the article here.