Tag Archive for FOI requests

Wibbly-Wobbly, Timey-Wimey FOI requests

With a due tip of the hat to Mr Steven Moffat, FOI Man tackles the trend for time distorting FOI requests.

The other day, one FOI Officer on Twitter reported that they had received an FOI request. Nothing unusual about that, but the requester had also asked for internal correspondence relating to the handling of the request itself. That’s right. They’d requested information that did not exist yet, and would only exist once their request had been dealt with.

Earlier this week, another FOI Officer who had answered a request about procurement arrangements for a particular service received a follow-up. The Officer’s response had provided details of the current contract but explained that a new contract was in the process of being agreed. So the requester asked if the details of the new contract could be sent through when negotiations were complete.

In both cases, the requests are for information that is not held. We can’t provide information that doesn’t exist at the time you make a request. The Act is quite clear:

“The information…is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated…being an amendment or deletion that would have been made regardless of the receipt of the request.” Freedom of Information Act 2000, s.1(4)

We may provide relevant information that is created or received between receipt and response of your request. But we’re certainly under no obligation to provide that information, and information that doesn’t exist yet is definitely out of scope.

In both examples above, of course, there is absolutely nothing preventing the requester making a follow-up request themselves at the appropriate stage. But instead they’re attempting to put all the responsibility onto someone else – ie us.

This is part of a wider, and apparently growing, impatience amongst requesters. I’ve referred previously to journalists and others quoting sections of the legislation and telling FOI Officers how to do their jobs. They appear determined to pre-empt any decision that they won’t like. But again, we haven’t made any decision yet.

Then there are the numerous requests that I’ve referred to recently that we’re refusing because, quite simply, people are trying to cram all the questions they can think of into one request. They try to cover every eventuality – tortuously attempting to second guess any potential arguments we may make against disclosure. And the result is that their request is either so complex that we find it hard to work out what they actually want, or it is refused because we estimate that complying with it will exceed the ‘acceptable limit’.

So let’s just make an assumption shall we? None of us have the power of time travel (damn it!) so let’s agree to work with good old fashioned linear time. You make a request. I research and answer it. You read my answer. If my answer provokes further questions, you submit another request. If you don’t like my answer, you submit a request for internal review. And so on. It’s a novel idea, but I’m hoping it’ll catch on.

FOI 2.0

FOI Man looks at the Government’s latest proposals for FOI 2.0.

The Government has launched a new consultation looking at Open Data and transparency in public services. I’m all for progress in this field.

I wanted to focus though on what the Government is saying about FOI specifically in this report. It suggests the following:

  • establishing the principle that data/information not subject to exemptions should be published;
  • a new requirement that all public bodies/providers of public services should proactively publish information about the services they provide;
  • an enhanced right of challenge against decisions not to publish data to an independent body (I’m really hoping that they’re thinking about the Information Commissioner, and not another body to confuse matters);
  • reform of the fees regulations – notably raising the ‘acceptable limit’;
  • reviewing the Information Commissioner’s powers;
  • statutory limits for internal reviews;
  • using procurement rules to ensure that new ICT systems are designed to facilitate the publication of data;
  • phased introduction of new generation of ICT systems that facilitate publication of data.

I don’t have a significant problem with individual proposals here. I worry about the practical implications of making it all work, especially at a time when the public sector is cutting staff. But I’m sure that Government, enlightened by the responses to its consultation, will factor all that in and make sure that adequate resources are provided.

My main concern is the general tone of this section of the report. In common with many reports by this Government, the underlying message is that public sector bodies and their employees are the problem. In this case, we’re clearly doing all we can to thwart openness. We’re only refusing requests that exceed the ‘acceptable limit’ because we can. All internal reviews are being delayed as long as possible, just because we can. We’re deliberately procuring ICT systems that make it difficult to publish data just so we can argue that it will cost too much to publish it.

No, no, no. I’m sure that some of you reading this will immediately respond that that reflects your experience of public bodies and FOI. And no doubt you have had bad experiences, or felt that you’d had a bad experience because your request was refused. But just because you didn’t get the outcome you wanted, or you had a bad experience with an authority that got it wrong, doesn’t mean that all public bodies are actively anti-openness.

As I’ve tried to make clear in this blog on a regular basis, the biggest obstacle to openness is the resource implication. Not only does it stop you getting information when your request exceeds the ‘appropriate limit’, but it’s also behind 90% of the disputes that I have with colleagues over disclosure – they’re not secretive, they’re busy; and the experience of having to carry out their main function whilst also digging out information  poisons the minds of some officials to FOI in the long term. It’s a real issue. And you can hit us over the head and tell us how awful we are as much as you like, making FOI and openness work is about winning people round so that they can think about these issues positively rather than under duress.

So here are my proposals for a better, more effective FOI regime:

  • more powers for the Information Commissioner;
  • even more important, more resources for the Information Commissioner;
  • ensuring that FOI requests can be regulated – I don’t mind how, but there does need to be some way to do this; like it or not, we have limited resources and likely to become still more limited. Charging is far too blunt a tool, but I’m not really in favour of raising the ‘acceptable limit’ – 18 hours is still a vast amount of time for an authority to spend on answering one person’s questions;
  • ensuring that public authorities are resourced to facilitate openness;
  • abolishing the ministerial veto;
  • requiring public authorities to publish their statistics for FOI compliance (after all, how can the Commissioner ‘name and shame’ authorities if they’re under no obligation to publish or return such statistics).

This would be all along side more pro-active disclosure. But it all needs to be balanced against the ability to provide a workable service. Change, yes, but let’s make it gradual and realistic.

When it comes to making FOI requests, it should be quality over quantity

FOI Man observes that while the volume of FOI requests continues to rise, their quality is not.

If you follow me on Twitter, you may have seen my Tweet on Thursday saying that my organisation had received more FOI requests in 2011 so far than in the whole of 2010. This prompted a flurry of “Me Too”s from fellow FOI Officers. The general consensus seemed to suggest roughly a 25% rise in requests this year. As unscientific as this survey is, it does suggest that use of FOI is still on the rise.

One observer sensibly commented that more requests doesn’t mean more openness. We should consider quality over quantity.

This is absolutely right. Although we’ve had more requests this year, I’ve also refused far more than ever before. Not, in most cases, due to any of the ‘Part II’ exemptions (or EIR exceptions). But my use of the s.12 provision that allows us to refuse requests that exceed the ‘appropriate limit’ has rocketed. Similarly, many requests have been refused simply because they are just too vague or don’t make sense.

Now, contrary to popular belief, I don’t sit around trying to construct new and devious ways to keep my organisation’s ‘secrets’. It’s my job to try, where possible, to answer requests. But it’s also my job to manage requests so that they don’t become an unreasonable burden on the organisation. The Act has those provisions in place to allow us to do that, and the Information Commissioner has in recent years made clear that he is supportive of public bodies who do that legitimately. After all, all public bodies are there to do a particular job, and FOI shouldn’t be preventing them from doing that job.

I always offer advice and assistance to help those who make requests that are likely to cost more than the ‘acceptable limit’ to bring their request within the limit. But often they just give up, and in other cases they respond but make it quite clear that they think I’m just giving them the run around. I’m not.

So it really helps if people make realistic requests in the first place. It saves us all time, and it avoids that nasty taste you get in the mouth when I have to refuse your request (however politely – and of course, I’m always polite – I may explain the situation to you). The key thing is to do your research first so that you can focus your request, and then try not to be greedy. “Fishing trips” are tempting, but as well as being expensive to process even if they can be done within limits, they’re quite often disappointing.

If you want to make FOI requests, you could do much worse than to take a look at my handy guide to making responsible requests. I want FOI to work, but it’s not just down to me to make that happen. It’s in your hands too.

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.

When can public authorities charge for FOI requests?

FOI Man looks at when a public authority is allowed to charge for FOI requests, and how such charges must be calculated.

Some further education institutions appear to be charging for FOI requests. In one case, the college is routinely charging £75 per request. In another, they are charging £25 per hour. Let’s be clear, this is NOT legitimate.

What can public authorities charge? Well, if they estimate that providing the information will cost more than ‘the acceptable limit’  (currently £600 in central government or £450 for all other authorities),  then they have a choice of either refusing to provide the information (in line with s.12 of the Act) or charging the full estimated cost. In estimating the cost, they can only consider the time and money it would take to:

  • determine if they hold the information;
  • locate the information;
  • retrieve the information; and/or
  • extract the information from a document containing it.

They can’t include redaction or time spent considering exemptions in their estimate of the cost. In estimating the cost, they have to calculate staff time on the basis of £25 an hour – the regulations stipulate this. This figure, of course, appears to be the basis of one of the colleges’ confusion. It’s also the basis of the rule of thumb that public authorities (outside of central government) operate of the ‘time limit’ for FOI being 18 hours (£450/£25=18). (It’s obviously 24 hours in central government – £600/£25=24).

They are allowed to charge  ‘disbursements’ for things like photocopying, paper, CD-ROMs etc. for any request. This right is very rarely exercised in my experience, but may be on the rise in the current climate.

The Environmental Information Regulations (EIR) are subtly different, but in effect, largely the same. Charges can be made, but case law has made clear that this is really only for disbursements again (photocopying, printing, etc). There is no direct  s.12 equivalent allowing refusal on grounds of cost, but often authorities will argue that the exception (the EIR term for an exemption) for requests which are ‘manifestly unreasonable’, can be used to refuse requests which will be expensive to comply with.  DEFRA’s guidance and case law appear to support this.

In summary, public authorities cannot charge a standard fee for FOI or EIR requests – they can only charge for disbursements or for requests which cost more than the ‘acceptable limit’ (£600 for central government; £450 for all other public authorities). At least, that’s the situation at present – it remains to be seen whether the outcome of the Government’s post-legislative review of FOI will be changes to the charging arrangements for requests.