Tag Archive for Information Tribunal

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.

You’re getting me vexed

FOI Man considers whether DCLG is right to refuse requests from anonymous critics of Eric Pickles

My old granny used to use that phrase whenever young FOI Boy misbehaved on her watch. And whenever I think about section 14 – the vexatious requests provision – of the FOI Act, that affectionate memory is summoned up.

Last week the Local Government Chronicle  (sorry – link is to a subscription site) highlighted the rising number of FOI requests being refused by the Department for Communities and Local Government (DCLG) using this provision. Not only that, but lately DCLG have apparently been insisting on proof of identity from a number of requesters, presumably because they doubt that they are using their real names. If they’re not using their real names, then DCLG can quite legitimately refuse to answer their requests, since the requests are not valid requests under section 8(1) of the Act.

The refusals may well be related to the activities of the entertainingly monickered individual known as Derek Tickles. Derek has admitted that his name is a pseudonym as he claims to work for DCLG. I have to admit that I’m unsure why DCLG have resorted to s.14 in his case, since s.8(1) would be sufficient to refuse his requests (and yes, I know there is some debate about whether or not the use of a pseudonym automatically makes a request invalid, but since neither the Information Commissioner nor the Tribunal would be likely to pursue a case brought by an anonymous individual, the argument is purely academic for the time being – and public bodies work in the realm of the practical).

Personally I find Derek’s posts and some of his requests amusing, and it is possible to see a serious purpose behind his campaign. But the fact remains that his avowed anonymity and public profile make it very easy for DCLG to make the case that his requests are either invalid or vexatious. And this is the case for anybody who uses obvious pseudonyms or makes requests that can be easily linked to such individuals.

Public bodies have to manage FOI as with any other service – they have limited resources. So I find it difficult to criticise DCLG for refusing to answer the requests of Derek and his merry band. Their staff who answer requests will be stretched answering valid requests, no doubt. If there are requests that can be easily filtered out legitimately, of course they are going to do that. As I’ve said before, the best way to find out information about an organisation anonymously (and I appreciate that there are situations that warrant this) is to be subtle. Use a pseudonym by all means but keep it discreet. Rhyming your name with the Secretary of State is likely to get you noticed.

Of course, there’s a wider question. Why do people feel that they can’t use their real names? Even public servants should have the right to express themselves. Maybe DCLG should be giving that question a bit more thought. And maybe there needs to be a – manageable – mechanism inserted into the FOI Act that allows anonymous requests to be valid in certain circumstances.

Why the public interest test is so important

Most exemptions are subject to a public interest test. But why is it so important to ensuring that the Freedom of Information Act works?

If you make FOI requests, you probably hate it when public authorities respond citing an exemption. If the Bill that the Labour Government first presented in 1999 had stood, all requesters would have remained frustrated.

The Bill allowed for appeal to the Information Commissioner. But the Commissioner would only have been able to advise public authorities to disclose information. Few, if any exemptions were subject to a public interest test. So the Commissioner would only have been able to advise disclosure if it was clear that the public authority had mistakenly applied an exemption. Let’s take a look at what that means.

I’ve carried out a rough and ready survey of the decisions reached by the Commissioner in 2008 relating to one of the exemptions, section 36 (prejudice to effective conduct of public affairs). Section 36 is a very broad exemption and has been criticised in the past because of this. In 2008, 30 decision notices were issued relating to the exemption. In 21 of these cases, the Commissioner found that the information did fall within the exemption. Not really terribly surprising given the breadth of the exemption.

But of those 21 cases, the Commissioner ordered disclosure in 13 cases because he found that the public interest test had been applied incorrectly. And that’s why the public interest test is so important. If all the Commissioner could consider was whether an exemption applied, his power to challenge public authorities’ decisions would be very limited. The public interest test has empowered the Commissioner to take a broader view, and as a result has really given the FOI Act teeth.

So what is the public interest? It’s not defined in the Act, but it is a well known concept in law. In a high profile Australian court case, it was defined as:

“…a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members…events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest.” (DPP v Smith [1991] 1 VR 63 at 75 for those lawyers amongst you who like to check my facts)

Or, as the Information Commissioner’s guidance more succinctly put it, the public interest is that which serves the interests of the public, not necessarily that which the public is interested in. So whenever we apply a qualified exemption (which is most of them), we have to consider whether the public will be better served by disclosure or by withholding the information.

The Environmental Information Regulations explicitly say that public authorities should presume that information should be disclosed when considering the use of exemptions. But the FOI Act, believe it or not, doesn’t actually say that. In practice though, the courts have found that there is an assumption that information should be disclosed running through the Act. It is, after all, called the Freedom of Information Act.

This means that one of the arguments for disclosure is always that there is a public interest in accountability and transparency. There may well be arguments in favour of disclosure in addition that are specific to the information requested. So, for example, it might be argued (and often is) that as an issue is currently the subject of controversy, there is a public interest in disclosing such information so that public debate can be well informed. The arguments for disclosure can be very general, yet they should be given considerable weight.

The next step is to consider the arguments against disclosure (and in favour of applying the exemption). Of course, in truth, unless we (or at least somebody in the public body) thought there were strong reasons for withholding the information, we wouldn’t even have started down this route. Try making an FOI request to a public body for its written consideration of the public interest in cases where the information was eventually disclosed – there won’t be any record. Part of the FOI Officer’s role is to be aware of case law and have a sense of whether or not withholding information is viable. If we don’t believe that a public interest can be successfully argued, expect us to resist the reliance on an exemption in the first place. Of course there are times when we have to find arguments even if we don’t think there is a strong case, but it is usually possible to find reasons – there is generally some grain of justifiable concern if someone is insisting on withholding the information, even if we’re not necessarily convinced that it would survive an encounter with a member of the Commissioner’s staff.

So what does survive an encounter with the Information Commissioner or the Information Tribunal? Analysis of their decisions demonstrates that it is about how convincing the argument is. It will be more convincing where an authority is able to produce evidence of the damage to the public interest. A great example I saw recently was when a University argued successfully in favour of section 36 to withhold a list of email addresses for all their staff. Quite often in the past, the Commissioner has ruled in favour of disclosure in these kind of cases, but what I think was different about this case was that they were able to produce evidence, in the form of experience of previous accidental disclosures, that disclosure could cause significant disruption to the university, and that this was not in the public interest.

The public interest test is a complex process. You can’t say for sure, whether you’re a public authority or a requester, which way appealed decisions will go. It ensures that the application of exemptions is fluid, that FOI doesn’t become trapped in the year 2000 when the Act was passed. It’s a brilliant mechanism and one that shouldn’t be underestimated in any assessment of how important the Act is in practice.

 

If you don’t use it, you won’t lose it

If you think about FOI as a children’s colouring book (just go with me on this), the lines were drawn by the legislation. The decisions of the Information Commissioner, Information Tribunals, and the courts add the colour, taking great care not to go over the lines. FOI Officers are not lawyers (in the main), but if we’re to be effective, we need to keep an eye on these decisions. Sometimes they can be very interesting, especially if you’re an FOI geek like me.

For those who aren’t familiar with the FOI appeal process, here’s a brief précis. If a public body refuses your request, you can ask it for an internal review of the decision. If they still refuse, you can appeal to the Information Commissioner. At that point, the Commissioner can either uphold the authority’s decision, in which case, you can appeal to the Lower Tier of the Information Tribunal, or he can instruct the authority to disclose the information, in which case, they might appeal to the Tribunal. Further appeal can then be made to the Upper Tier Tribunal (you used to go to the High Court on points of law at this stage), and if there are still points of law at stake, you or the authority concerned can appeal to the Court of Appeal. And then to the Supreme Court. Let’s not go any further or the Daily Mail may get excited.

Last week I was fortunate enough to attend a free seminar given by 11KBW (whose blog on information rights law, Panopticon, is well worth a look) on latest developments in information law. One of the barristers speaking, Robin Hopkins, explained the implications of a decision made by the Upper Tier of the Tribunal, and I sat up sharply in my seat. The decision related to requests submitted to the Department for the Environment, Food and Rural Affairs (DEFRA) and the Home Office. I’ve been thinking about it ever since, and sad as it may seem, I spent some of my Sunday afternoon reading the full decision.

The Upper Tier Tribunal was looking at an issue that has troubled a few sittings of the Tribunal. When a public authority refuses to provide information, it must write to the applicant and explain which exemptions apply and how it has reached that decision. But what happens if the applicant appeals to the Commissioner, or even the Tribunal? Can the authority suddenly decide that another exemption, not already relied upon, is relevant?

Previous Tribunal decisions have suggested that it is entirely at the discretion of the Commissioner or the Tribunal to decide on this. The only way that an authority could guarantee that an exemption would be taken into account would be if it had included it in its response to the applicant. In other words, “use it or lose it”, which explains why many authorities throw everything including the kitchen sink at requests for particularly sensitive information. The new Upper Tribunal decision from Judge Jacobs takes a new line. He ruled that authorities have the right to introduce new exemptions at a later stage. This would mean that the Commissioner and the Tribunal have to consider exemptions (or exceptions under EIR) raised late in the day by authorities.

This sounds at first hearing to be a bit lenient on public authorities, and I can understand (and so could Judge Jacobs to be fair) why it won’t go down well with some observers. But I also think that it’s the right approach.

The point is that exemptions are usually there to protect other individuals’ and organisations’ rights. As Jacobs points out:

“If [the public authority] is not allowed to change its position to rely on another exemption, this may hamper a full consideration of the public interest and prevent the interests of third parties being taken into account.” (GIA/1694/2010 and GIA/2098/2010, para. 29)

Let me illustrate this through a hypothetical situation. Somebody has requested details of a meeting between the police and a government body about knife crime. One of the attendees was a family member of a victim of knife crime, there to describe their experience. It was a traumatic and difficult experience for them, but they agreed to take part on the understanding that their involvement wouldn’t be known outside the meeting. The authority refuses the request on grounds of s.31 (law enforcement), but when it gets to the Commissioner, he rules that while the exemption applies, the public interest is in favour of disclosure. The authority then realises that it should also have claimed s.40 (personal information) and/or s.41 (information provided in confidence) in respect of the details of the member of the public who had had such a traumatic experience. Does the Commissioner rule that the details of that person should be disclosed, purely because the authority had failed to raise the need for the exemption in their original response?

Of course not, and in fairness to the Commissioner, it is likely he would have used his discretion to allow the use of the exemption in this situation. But Judge Jacobs argues that it is only by analysis of individual circumstances that it will be possible to identify whether exemptions should be allowed. If the Commissioner or Tribunal used their discretion not to allow late use of exemptions, they might not give sufficient consideration to important issues affecting third parties.

In fact, the ruling suggested further that:

“…it is necessary for the Commissioner to take the initiative in appropriate circumstances and to do so as a matter of duty, not of discretion.” (GIA/1694/2010 and GIA/2098/2010, para. 49)

In other words, the Commissioner also has a duty to identify exemptions that might apply that the authority has missed. This again, makes sense, however unpalatable it may be for the Commissioner’s Office. Surely they have to ensure that their decisions don’t cause harm (or prejudice, to use the legal jargon), and that has to mean looking beyond just what the public authority may have argued. After all, shouldn’t the Commissioner’s staff be better informed than most on the application of exemptions?

I can’t say whether the information requested in these cases should have been disclosed or not (that wasn’t looked at in the ruling). But I do think that Judge Jacobs got it right on this important, if technical, point.

Exemptions (or exceptions) either apply or not. He argues that information and the exemptions that protect them are “intimately connected”. Sensitive information shouldn’t lose its protection just because of human error at an early stage in dealing with a request. If you don’t use exemptions, you won’t lose the opportunity to introduce them at a later stage. This decision is particularly important because of its recognition of the practicalities of managing the FOI process:

“Legislation has to be interpreted so that it is workable. No administration is perfect. Documents can be misplaced, overlooked or difficult to find. Officials may fail to identify the potential application of exemptions.” (GIA/1694/2010 and GIA/2098/2010, para. 35)

I can’t imagine that I’m the only FOI Officer who will appreciate this recognition of the realities of how FOI works in our organisations. Nobody’s perfect, and third parties certainly shouldn’t have their rights infringed just because of that eternal truth.

What are FOI Officers for?

I’ve been meaning to write this post for some time, but there’s always been something topical getting in the way. But as the data deluge begins to subside (?), here are my observations on the role of FOI Officers in the UK.

When FOI was passed (and I am dismayed to recall that I missed the FOI Act’s 10th birthday on 30th November), public authorities preparing for its impact had little to go on. Each authority came up with its own way of handling requests or alternatively, failed to, and reaped the consequences in January 2005. As a result, each public authority has its own way of processing FOI requests, and each FOI Officer has a different job.

In one organisation I’ve worked in, the FOI Officer is very much an advisor – they only get involved in the answering of individual requests if there are concerns about disclosing information. Most requests are answered by staff working on the subject area of the request. My impression is that this is characteristic of central government’s handling of FOI requests (generalising broadly). In these bodies, the person answering your request may well not know very much about the Act (so may use the wrong terminology/make odd statements about their obligations under the Act), but should be knowledgeable about the subject that is being asked about.

In other organisations, including my current one, the FOI Officer receives, acknowledges and responds to the request. Departments are asked to provide relevant information, and advise if they have any concerns with the information being disclosed (I wrote about this process in more detail in my post Being Human last month). This is probably characteristic of FOI procedures in sectors outside central government (again, generalising – many may not). This is an approach probably favoured additionally by smaller organisations.

As well as differences in the way that FOI requests are processed, there are also variations in attitude and approach amongst practitioners. There isn’t a single FOI Officer profession – we’re a range of individuals, with different backgrounds, skills and attitudes. There isn’t a professional body for FOI Officers – though the Records Management Society (RMS) recently became the Information and Records Management Society (IRMS), partly I suspect in an attempt to fill this vacuum (logical, since many FOI Officers started out as Records Managers, and the Section 46 Code of Practice makes the link clear).

Often we have many other responsibilities in addition to FOI. Commonly this includes records management and Data Protection Act compliance (with significant workloads attached to both) but often very many other duties as well.

This means that there is no single understanding of what an FOI Officer is for. Some, I’m sure, see their role as to do as they’re told – if they’re told to withhold information by a senior officer, then they find a way to do so, no matter how weak the basis. And who can blame them? I know of one FOI Officer who was casually threatened with redundancy for themselves and a junior colleague if they couldn’t be “more helpful” (for which read “find ways to avoid answering uncomfortable requests”).

A few FOI Officers, I believe, take common cause with the FOI critics in their organisation and set out, in their view, to defend their employer. Without much persuasion, they will seek out ways to thwart requesters. They will complain loudly about ‘abuse’ and ‘misuse’ (sometimes justifiably, but perhaps on occasion not) of the legislation. Their advice and decisions may not be based on available case law, but on their own view of what is reasonable. They will shout loudly – and in fairness, correctly – that the Information Commissioner’s decisions do not set precedent.

Then there are those that take the view that they are there to challenge the status quo, to promote the principles underlying the legislation. In practice, this means not just accepting it when a colleague or a manager asks them to find an exemption to apply, but asking the difficult questions. Why can’t it go out? What harm will result? How likely is that harm? Will it really cost this much to provide the information? This approach is strongly influenced by the decisions of the Information Commissioner, Tribunal and higher courts.

In my view, this is the right approach, however unpopular it may be with managers and colleagues. There is, after all, a statutory presumption (Environmental Information Regulations) or assumption (FOI, as established through case law) to disclose, and in my experience it is often difficult for those closest to information to take an approach consistent with that. The FOI Officer is there to make that assumption or presumption for the public authority. They might ultimately decide that it is right to withhold the information, or they may be overruled, but they have to ask the questions.

In truth, of course, we’re all on a scale covering all of those approaches. I certainly recognise myself in all three scenarios. It’s not wrong of FOI Officers to seek to defend their employer, but we do that better by minimising the risk of referral to the Commissioner, or at least increasing the likelihood of the Commissioner upholding the decision made. I’d also argue that by basing our approach around case law and available guidance, FOI Officers will be seen to be professional, even if they don’t belong to a profession.