Tag Archive for journalists

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).

Keep the politics out of FOI

The Leader of Kirklees Council has been accused of vetting and altering FOI responses from his council. FOI Man thinks that politicians should keep out of answering FOI requests for their own good.

Just a brief post because I wanted to draw attention to David Higgerson’s post on the Council Leader at Kirklees Council. The Council Leader in question allegedly insists on reading FOI responses before they go out and seemingly forcing the FOI Officer to change responses that don’t quite fit with his political message.

First thing to be clear about. Most FOI Officers don’t have all the information in their organisation to hand. They have to ask other people about it. And it’s absolutely right that people in a position to know the information are able to correct errors before the information goes out.

And there are reasons why an elected politician may need to see details of a request and proposed response – for example if they are the “qualified person” ruling if disclosure of information would or would be likely to prejudice the effective conduct of public affairs (under s.36 of the Act). If the information relates to them, there may be good reason to consult them to check the accuracy of the information.

But by and large, I’ve always felt that politicians, and for that matter, political advisors,  should be kept out of preparing FOI responses unless they happen to have the relevant information. Even if their motives are purer than pure, it just doesn’t look good. And as David points out, if an FOI Officer is able to collate information to answer a request, why should a politician stop it, just because they don’t like the way it portrays them? At the best it looks like control-freakery; at the worst it politicises and undermines what should be an effective administrative process.

It does happen unfortunately, but hopefully articles like this one in the Hudderfield Examiner will demonstrate to politicians and their advisors that their best bet is to stay as far away as possible from answering FOI requests.

Read the story, then count to ten…

When you’re a public employee, even one who sees themselves as progressive and enlightened, it’s easy to reject media criticism of public sector practices as misguided and ill-informed. But maybe we need to keep an open mind.

Confession time. I sometimes get really annoyed with journalists’ stories about Freedom of Information. And their comments on Twitter.  I know that colleagues in the public sector, and even other FOI Officers, will be familiar with that feeling.

It’s the hyperbole that sometimes appals. Other times it’s the lack of understanding of how government (at all levels) works. Quite a lot of the time its just an instinctive reaction to seeing colleagues (in the loosest sense – most of the time I don’t even know the people being talked about) criticised in print, apparently just for doing their job.

Heather Brooke revels in her reputation as a thorn in the side of the public sector on FOI and transparency. She has consistently argued that more details of public employees should be made public. Like many other FOI Officers, I’m responsible for Data Protection compliance in my organisation. I’ve made the point here previously that I think there are fundamental differences in the approach to personal data and privacy taken in Heather’s native US and here in the UK. I know many colleagues in my own organisation and elsewhere who would feel very uncomfortable with their details being made public. There are plenty of employees in private sector organisations (including media corporations) that would feel similarly. I resent the characterisation of all public employees as sinister power-hungry figures intent on creating and/or maintaining a big brother state under a shroud of secrecy. All of these objections and more boil in the cauldron of my mind as I read Heather’s latest criticism, often accompanied by a thin wisp of steam rising from my scalp.

But fundamentally, she’s doing her job. If I try to see past my instinctive reactions, I can see that she’s got a point – there are circumstances where more transparency about who is doing what would be beneficial. And a lot of my discomfort is less about privacy and more about the fear of my colleagues’ reactions.

Last week I read a story (possibly apocryphal) in a blog post about a Minister having to ask a friendly MP to make an FOI request to obtain information from his own department. The argument he’d been given was that the papers belonged to the previous administration so he couldn’t see them. Whilst the journalist was making the point that this was ridiculous, the public servant in me was dying to respond. I wanted to point out that there were good reasons for this. It’s about ensuring that the civil service is seen as impartial. There’s a convention in government that you don’t let Ministers of a new government see the papers of the previous administration.

But, let’s pause a second. If the papers could be disclosed under FOI, it patently is ridiculous. And even if the full facts would have justified how the situation was handled, of course it looks stupid to the outside world. Journalists can’t be expected to understand the inner workings of Whitehall, any more than I can be expected to understand the functioning of a national news outlet. And more than that. The whole point of FOI and moves to transparency in our public sector is to challenge the status quo. Conventions that have stood for centuries in some cases absolutely should be scrutinised to see if they are consistent with the new way of working.

For instance, I have issues with the convention of collective responsibility being trotted out religiously in defence of withholding Cabinet Minutes. And for that matter with the convention that protects the impartiality of the Monarch and the Heir being given as an excuse for not disclosing correspondence with the Prince of Wales. Surely the best way to maintain the impartiality of members of the Royal Family is for them to be impartial. These conventions often seem like they put the cart before the proverbial horse – surely we should be looking at whether actual harm will be caused to good government, individuals or third parties when considering FOIs, not whether harm will be caused to a convention (which in itself was designed to protect those things in an age before FOI existed).

That’s not to say that there aren’t good reasons at times for information to be withheld. And journalists, along with other people who make requests, are never going to be happy when information is withheld. But I think it’s important that those of us trying to change the culture in the public sector pause a moment when our reaction is to reject criticism. Many of us have been working in the public sector for years. It’s easy to assume that the way things are done is the way they should be done. It ain’t necessarily so.

And when journalists and others get it wrong, or they just don’t understand why decisions have been made, maybe we need to be more open about the process and the reasoning. This blog is one reaction to that – I want people who make requests to understand why FOI works the way it does. That won’t stop critical stories about FOI handling. But it’s another dimension to the openness agenda that we’re all trying (or should be trying) to push within the wider public sector.

So I’m going to keep a fire extinguisher to hand and put out the fires of my indignation next time I react angrily to media criticism. Openness will apply to my mind as well as my job. I will count to ten before I dismiss a journalist’s latest story as “Balderdash” or something stronger. Mrs FOIMan, who knows me better than most, reading this over my shoulder, comments “Good luck with that.”

Are journalists paranoid about FOI?

In a couple of recent posts, I’ve written about how FOI Officers treat requesters’ details, and specifically about the handling of ‘round-robin’ requests. Although my intent was to indicate that, in the main, requesters’ details are handled sensitively and professionally, that wasn’t the message picked up by many of you.

David Higgerson, a journalist who blogs about, well, journalism, wrote about ways to avoid being identified as a ‘round-robin’ requester. The rather wonderfully named Fleet Street Blues blog featured a post on how to ensure that your FOI request isn’t singled out for special treatment. And a post on the Help Me Investigate blog explained “why who is requesting (shouldn’t but) can matter”.

It seemed to me that I’d hit a raw nerve. I asked around on Twitter, and the response was interesting. One journalist with a broadsheet reported that whenever he made an FOI request, his website instantly registers multiple hits from Government domains. Some suspected that the unease was due to bad experiences with Press Officers who get involved. One commented that his main concern was that if there were different procedures for journalists then the information would be disclosed later, just because of the number of desks that the request/response has to pass over.

Rather more worryingly, an FOI Officer suggested that some authorities are inclined to delay responses to journalists, calculating that when the information does eventually go out, the story will be old news. I want to say that that’s a terribly cynical view, but I can’t in all honesty. Of course that sort of thing happens on occasion, mostly in very political environments. I can’t speak for others, but when I’ve found myself in this situation, I’ve spoken out, and I do think that that’s an important part of the FOI Officer’s role. I’m not sure my bosses have always agreed.

On the journalists’ plus column, one civil servant pointed out to me that they have a hot line to the organisation, through the Press Office, that most people don’t. They only have to use FOI at all for the information that the Press Office are unwilling or unable to provide. Most people don’t have that, so have to use FOI as their only route to information.

And it’s not necessarily because they’re journalists that information goes out late. Just this week I sent out two FOI responses on the twentieth working day to a journalist and I pictured him sat there cursing me for deliberately scuppering his story. It was nothing of the sort of course – we’d had problems pulling the information together, coupled with technical issues, and just scraped the deadline. I alerted the Press Office to the responses that were going out, but it didn’t slow things down (in fact, by the time they responded to my email, the responses had already gone out).

So are journalists being paranoid? Like most of us, probably some of the time they are. Often they get a better service if anything, because we’re more concerned about how they’ll report the story.

But perhaps they’ve got a point. Academic Professor Alasdair Roberts wrote about the experience of Canadian journalists using FOI ten years ago. Government departments in Canada had a systematic approach for dealing with requests from journalists and other types of requester. If a request was from a journalist and/or related to certain sensitive subjects, it would be referred to the Minister. To cut a long story short, Professor Roberts’ research found that the result was that journalists tended to get responses later, and also that their requests were (significantly) more likely to be refused.

I don’t know if anyone has conducted similar research here in the UK (UCL Constitution Unit? University of Northumbria?), but it would be fascinating to hear from them if they have. Maybe those of us who are responsible for overseeing FOI in our respective institutions need to keep an eye out and ensure that we’re doing all we can to provide a fair service to our requesters from the media.

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).