Tag Archive for public officials

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.

Number crunching: Who’s better – Boris or Ken? Only one way to find out…

FOI Man looks at what FOI performance statistics tell us about the attitudes to openness of the rival Mayoral candidates in London

Even if you’re not a Londoner (and I wasn’t always), and possibly even if you don’t live in the UK, you are probably aware of the colourful personalities that have inhabited the ‘glass testicle’ (or motorbike helmet if you’re of a more gentle disposition) as London’s Mayor.

For 8 years, City Hall was the domain of Ken Livingstone, who before its abolition in 1986, had been the Leader of the previous pan-London authority, the Greater London Council (GLC). He claimed credit for increases in police numbers in the capital, improvements to the transport infrastructure, and winning the 2012 Olympic and Paralympic Games for London.

Many were surprised when a combination of voter fatigue, corruption allegations and a backlash from the outer borough residents saw him fall to the eccentric but charismatic figure of Boris Johnson in 2008. Boris claims to have cut staff numbers across the GLA Group, is proud of the city-wide ‘Boris-Bikes’ scheme that has been introduced by his administration, and has used London as the guinea pig for many of the ideas that the Coalition Government has begun to roll out nationally in the last year. In particular, he claimed to be bringing in a new transparency to City Hall.

So is Boris really more transparent than Ken? Some of his initiatives are undoubtedly a move in the right direction. Two years before Eric Pickles took on local authorities and insisted that they published all expenditure over £500, the GLA was publishing its expenditure over £1,000 (radical at the time). You can now access that data, together with much else, in the pioneering London Datastore.

It’s probably a little unfair though to compare this with Ken’s record. Nobody published datasets until very recently, and there was little pressure to publish all expenditure until Boris’s campaign team came up with it. So points to Boris for keeping up with (and slightly ahead of ) the Jones’s on pro-active disclosure. But the GLA (especially City Hall) was always rather good at pro-active disclosure on its website – it’s just the methods that have changed.

A fairer fight can be based on FOI statistics. Who is quicker at answering requests? How ready are they to use an exemption? Courtesy of a WhatDoTheyKnow requester, the figures for 2007 to 2010, and the GLA’s internal request log, can now be found online (links below so you can do your own analysis).

A caveat. I’m not a statistician, so don’t expect too much from this analysis – it’s just my impression gained from playing around with the numbers. But what do I think the figures tell us?

Well, London’s journalists regularly complain about the speed of response to FOI requests from the GLA. So has that got worse or better since Boris’s election in May 2008?

First thing to say is that the GLA Group consists of five main bodies. There is the Greater London Authority (GLA) at the centre, which supports the Mayor and the London Assembly on a day to day basis. Then there is Transport for London (TfL), the Metropolitan Police Authority (MPA – which oversees the Metropolitan Police Service, what we know as ‘The Met’), the London Fire and Emergency Planning Authority (LFEPA) and finally the London Development Agency (LDA – which used to be known as ‘the Mayor’s piggy bank’ and is being abolished as we speak as part of the Government cuts).

Across the Group (excluding TfL), it may surprise you to hear that there has been little change over the last four years in the speed of responses. Approximately 14% of requests are answered later than 20 working days. And that was the same in Ken’s last full year (2007). It also should be borne in mind that this performance has been maintained in the face of rising volumes of requests, and job cuts. In 2007, the whole group received 1,662 requests. By 2010 that had risen to 2,807.

One glaring exception stands out. It is no surprise that TfL were investigated by the Information Commissioner for their performance. In 2007, only 17% of requests were answered late (still a significant figure). In Boris’s first full year of 2009, 35% of requests to TfL were answered late. The situation is clearly improving from more recent figures, but it remains a mystery as to why there was such a sharp rise in the rate of late responses following Boris’s election.

So what about use of exemptions? Well, again, proportionally, not much has changed across the group as a whole. The exception, this time, is the GLA itself at City Hall. In 2007, exemptions were only used in 6% of cases. This has risen in every year since and in 2010 15% of requests were fully or partially refused. The GLA’s detailed log indicates which exemptions were used, and this suggests a rise in the use of exemptions for commercial and policy information. To be fair, the biggest rise has been in the use of the section 40 personal information exemption, which could well just be the entirely reasonable redaction of private individuals’ names and contact details.

So, on balance, there’s not much between Boris and Ken on FOI and openness. And that’s not to be sniffed at in the light of rising volumes of requests and cuts to staff answering them. But the figures do perhaps suggest some worrying trends, in punctuality and use of exemptions, in the first half of Boris’s first term of office.

Here are the links to the WhatDoTheyKnow data – see what you can make of it.

GLA FOI statistics

GLA FOI Log

TfL FOI statistics

LDA FOI statistics (watch out for their exemption stats – I think they’ve provided total numbers of exemptions used as opposed to numbers of requests where exemptions were used, which is a subtle, but important, difference)

LFEPA FOI statistics

MPA FOI statistics

 

Attack of the Zombie FOI Requesters

FOI Man suggests that for FOI to thrive, we need to start listening to its critics from within the public sector. And recognising that zombie requesters won’t help.

Last week’s Friday fun was an FOI request to Leicester City Council regarding their emergency planning. Specifically, their planning for the eventuality of an invasion of zombies. And we now know (though the formal response is yet to be sent out) that the council is not prepared for a sudden incursion of the braindead (insert witty comment here).

Reaction on Twitter was mixed. Most found it amusing (and I amongst them in truth). But some, and not just public officials, saw it as a misguided use of FOI. A subversion of an important right.

The journalist David Higgerson feared that the story had been planted by a public authority press officer to show how FOI was being abused. But he was encouraged by the response of the local authority’s Head of Information Governance, Lynn Wyeth, who had this to say of the request (according to BBC News):

“To you it might seem frivolous and a waste of time… but to different people it actually means something,” said Ms Wyeth.

“Everybody has their own interests and their own reasons for asking these questions.”

A sentiment worthy of applause. It’s absolutely at the heart of FOI that it doesn’t matter who is asking or what they are asking for, their request should be answered. It is a right. And FOI Officers should take Ms Wyeth’s approach at all times. If somebody asks the question, just answer it.

And yet…and yet. Whilst I share that view, and I know that many other FOI Officers will, I’m sure they will also share my experience that the majority of our colleagues are not yet there. They are cynical of the advantages that FOI brings. Some of those colleagues are at senior levels, and David mentions the councillors who grumble about the cost of FOI. It’s not just councillors. There are many who resent the time and apparent cost of FOI. I hear it all the time.

We who believe in FOI can always find an answer to their concerns. But however right we may be, there are many who will remain unconvinced. And unfortunately, as the public sector comes under more financial pressure in coming months and years, their voices will get louder. And they will point to requests about zombies, the paranormal and toilet rolls to support their case that FOI is costly and fails to deliver benefit. There will be many in Government who will sympathise.

It has happened before. In Ireland, following similar experiences, the Government introduced an inhibitive charging scheme. Requests dropped off rapidly. But so did the effectiveness of FOI in that country at opening up government and the public sector.

My fear is that a combination of zombie requests, public sector spending cuts and lack of support for FOI at all levels in public authorities could seriously damage our right to access information in this country.  As FOI Officers, we have a duty to promote FOI to our colleagues. But we can’t just keep repeating the same old answers in the hope that they will have a ‘road to Damascus’ conversion.

The only way we can progress in instilling FOI as a culture in our organisations and our country is to listen to colleagues’ concerns. Are there ways we can work with them to demonstrate that FOI doesn’t have to be a threat? Can we recognise that sometimes the results of FOI are unhelpful? These are questions that we need to seriously consider and find answers to.

We should acknowledge that some requests are a waste of resources (even if we can’t actually refuse them). We should use exemptions appropriately where colleagues have legitimate concerns. We should refuse requests that will be overly onerous on grounds of cost. And as long as we don’t compromise on ensuring that requests are responded to in compliance with the legislation, we should work with colleagues in other departments who are responsible for defending our organisation’s reputation.

There’s no shame in any of that. But it might, slowly but surely, start to win over some of those with concerns over FOI and dampen down demands for restrictive reform.

 

Why is my simple query being treated as FOI?

FOI Man suggests that how an enquiry is badged is irrelevant – it’s other issues that dictate how long a request takes to answer.

A question I get asked a lot is why, when an individual asks a simple question of their local council or other public authority it gets treated as FOI. Their concern, presumably, is that handling a query as an FOI request will take longer than handling it as a routine enquiry. And that organisations are deliberately badging queries as FOI for this purpose.

To be honest, this is one of those issues that causes confusion on both sides of the fence. I’ve written previously about the inside view of this. As I said on that occasion, the difficulty is that the legislation doesn’t distinguish between ‘routine enquiries’ in written form and more complex requests that most people would consider ‘FOI requests’.

It just struck me as I answered this question again that the complaint about how an enquiry is classed is missing the point. There’s no reason in theory why something should take longer to answer just because it is considered an FOI request by an organisation. It’s irrelevant. The reason why something takes longer to answer, however it is badged, is because there is something about it that makes it more difficult to answer.

That might be that it relates to something that is controversial or sensitive. But just as likely it could be that it’s not as easy to find or collate the information as you, as a member of the public, think it should be. It might be that the person who deals with it has gone off sick for the day. There are all sorts of reasons why some enquiries might take longer to answer than others.

In fact the advice that FOI Officers tend to give their colleagues is that if a query is contentious or novel then they should handle it as an FOI request. But it’s not the fact that it is an FOI request that means it will take longer to answer – it’s the fact that it needs proper consideration.

In other words, badging something as FOI isn’t a way of “kicking an enquiry into the long grass”. By definition, it can’t be – we have to answer within a set time limit (and OK we don’t always succeed, but we are obliged to get there in the end).

That’s not to say, of course, that some authorities don’t stretch the requirements to the limit. But that’s not a problem with the FOI legislation, and we should remember that FOI has significantly enhanced people’s right to information in the main, not reduced it. If there wasn’t a right to information through FOI, I suspect that many enquiries would never be answered, let alone be answered quickly.

So if you are told that your enquiry is being dealt with as an FOI, don’t groan. It’s not poor old FOI’s fault. But if you think it’s taking longer than it should, don’t be afraid to ask why with an open mind and a friendly tone.

Keeping secrets secret

The Daily Telegraph has highlighted the tricky issue of redaction. FOI Man reflects on the perhaps surprising difficulties of blanking out a bit of text.

Today’s Daily Telegraph features a story about redaction. And for a change, this is not a story complaining about public authorities redacting too much, but about them failing to do so properly.

The Departments for Health and Communities and Local Government, and the Ministry of Defence, are all alleged to have disclosed and published documents containing redactions. But unfortunately, it appears that the redactions were poorly done, and as a result, the material that should have remained secret can be read by requesters and others with very little effort on their part.

Redaction, for those who don’t speak FOI, is the term used to describe blanking out information in documents. It happens when public authorities are disclosing documents but there are particular words or passages that contain sensitive information and are therefore exempt. Rather than refusing to provide the whole document, public authorities will blank out the relevant sections.

It is a difficult process from start to finish. First of all, if the document (or documents) is very long, it can be time consuming (and this time often can’t be included in estimates of the cost). Secondly, as the Telegraph has highlighted, the practicalities of how to redact are not straightforward.

The Telegraph gives two examples of how redaction can go wrong. In the first, it appears that the Civil Servant responsible thought they had successfully blanked out the relevant sections using available software, but when the journalist studied the documents, it was a simple matter to highlight the relevant sections to see what had been supposedly hidden. In the second, rather more prosaic (and familiar) example, the text had been blanked out using a black marker pen, but when the document was held up against the light, again the information was magically revealed.

Another common difficulty occurs with Track Changes™ or similar functionality in office software (or more accurately, with staff understanding how it works). In a previous job, we  purchased redaction software in an attempt to overcome these issues, only to find that it didn’t work properly (it tended to blank out more than the section you wanted to cover up).

In the end, less technical solutions tend to be the most effective. The standard one is to use a black marker pen to cover the relevant words, then photocopy the pages, possibly use the pen again on the photocopy, then photocopy the pages again, and so on until you (and usually half a dozen colleagues interrupted to double check it for you) are satisfied that the words or passage can’t be read.

My favoured solution, sometimes complemented by the one above, is to use cut up bits of Post-It ™ note or paper that can be otherwise secured, and place them over the relevant sections before photocopying the pages (taking care not to dislodge said bits of paper en route to the photocopier). You can even indicate the relevant exemptions on the paper covering each section. This is effective, and has the added benefit of making your desk look like the aftermath of a Blue Peter craft session. “And here’s a document I prepared earlier…”

So I feel for my colleagues in central Government. They will no doubt want to read up about redaction, so if they and you want to know more, both the Information Commissioner and the National Archives publish useful guidance for public authorities.

If you’re waiting for my post on exemptions and the public interest test, don’t worry, I haven’t forgotten about it. I’ve just extended the deadline(!) and hope to publish it later this week.