Tag Archive for public officials

Exemptions

Exemptions have always been contentious. FOI Man provides a glimpse behind the scenes of how the decision to apply them is taken.

Back in the early noughties, when I was nought but an FOI Boy, the BBC showed a drama featuring Matthew Macfadyen as a young left wing activist gradually becoming disillusioned by the Labour Government’s attempts to water down their Freedom of Information Bill. MM does a fine line in moody young men, and he was particularly cross about the number of exemptions in the finished Act.

Exemptions have remained a contentious issue ever since. My own view is that MM was unduly concerned. Whilst there may be a large number of exemptions in the Act, experience has shown that there are also pretty strong checks and balances on their use. But more on those later.

Most requests result in full disclosure. You might not believe that if you read most commentary about FOI, but the statistics across the public sector bear me out (as I’ve discussed in a previous post). Some requests are too broad and require clarification, or are refused on cost grounds. But a minority are refused and an exemption (or exception under EIR) cited.

In my experience, it is rarely the FOI Officer who decides whether information should be withheld. Normally it is someone in the department that holds the information who suggests that there might be a problem with disclosure, and the ultimate decision to use an exemption will usually be a senior officer’s. The FOI Officer’s role is to advise whether information can be withheld where concerns are raised, and if so to ensure that the case for using the exemption is robust, by gathering evidence, and that statutory requirements, such as providing a meaningful refusal notice, are met.

The exception may be where an FOI Officer is familiar enough with the information requested to know that there may be problems with disclosure. Or, for example, as FOI Officers are often also responsible for Data Protection compliance, when information contains personal data relating to third parties. And on occasion, we may be aware from other sources (eg email discussion lists, other FOI Officers dealing with the same request, etc.) that we might need to consider using an exemption. But I’m always at pains to make clear to colleagues that it is their responsibility to highlight material that shouldn’t be released.

But they don’t need to know about exemptions. When we were preparing for FOI coming fully into force on 1 January 2005, our training courses for colleagues tended to dwell excessively on examinations of the various exemptions available. It only dawned on me later that this wasn’t necessary – and in fact became a hindrance because as we all know, “a little bit of knowledge is a dangerous thing”.  So nowadays if I’m training colleagues or advising them on answering a request, I focus on the key message – consider the harm of disclosure. If they can explain to me what the harm would be, I can then decide if an exemption can be justified.

The sorts of exemption that apply are obviously different from one part of the public sector to another. Central Government departments in particular are going to be most uneasy about policy matters and requests for information relating to ministers. The police are of course going to hold a lot of information that relates to law enforcement and that will be reflected in the kinds of exemption that they use. Other organisations may hardly use anything except the exemption for personal data. So very few, if any, FOI Officers will have used all of the exemptions available – usually they will know about a small sub-set that is relevant to their organisation. It’s a cause of some excitement when we get to use a new one! (or maybe that’s just me…)

Third party data is a particularly tricky problem. Much information held by public authorities was given to them by, or relates to, other organisations or individuals. This could include businesses providing them with services or tendering for contracts, individuals responding to a consultation, even other public bodies that the authority is working with. The Section 45 Code of Practice makes it clear that public bodies should consult third parties when they are considering disclosing data relating to them. But equally it is clear that it is the duty of the public body in receipt of a request to decide whether or not to disclose information. If the third party doesn’t want you to disclose information it can cause a great deal of grief, especially when they have a limited understanding of the obligations that public authorities are under.

FOI Officers and other staff dealing with requests can sometimes find themselves put under a lot of pressure to withhold information. Often they can see the case for the exemption and are happy to make it. On other occasions, they may well argue hard in favour of disclosure with varying results (one of the most common being a funny look from colleagues who are now convinced that they’re not a team player). Sometimes they end up having to make the case for an exemption that they disagree with.

This is not easy, especially if it is appealed as far as the Information Commissioner. One of the trickiest exchanges I had with a case officer from the ICO related to information provided by a very powerful third party. My organisation was under pressure not to disclose that information, and in truth we wanted the ICO to order us to disclose so that we could show that we’d done all we could. But I couldn’t tell the ICO that and they wouldn’t make a decision without more information from us as to how the exemption applied. So for a while we were at stalemate (and the poor requester was still waiting).

At least nowadays, there is plenty of case law to go on. Back in 2005, we were making it up as we went along, and it’s no surprise to me that a backlog built up very quickly at the ICO. Once that case law started to become available, and the ICO’s guidance adjusted as a result, we were able to make decisions on exemptions from a more informed standpoint.

There are two aspects of the Freedom of Information Act as passed which mean that Matthew Macfadyen’s character can sleep easy in his bed at night. Neither thing, bizarrely enough, was in the original Freedom of Information Bill at its First Reading. They were both introduced during Committee Stage – so Tony Blair didn’t have it all his own way. One is the power of the Information Commissioner to order disclosure (as opposed to just ‘advising’) and the other is the public interest test for most exemptions. In a further post I’m going to talk about how we apply the public interest test and why I think it is so important.

Why my £9K saving wasn’t a victory for the Big Society

Earlier this week I sent the following Tweet:

“Preparing an FOI response, identified £9k that should have been reclaimed. Hasty emails being sent to recover it. FOI can save real money.”

This is great news, of course. As a direct result of FOI, a significant figure was saved, which can now be reinvested in other areas of our work. I was able to use it to demonstrate to a senior figure how, despite its occasional frustrations, FOI can save the organisation money. What this isn’t though, is evidence that through more openness we can cut down on the number of public servants employed. This isn’t a triumph of the Big Society.

Although the information was requested through FOI, the error would not have been evident to the requester. In order to provide the information requested, more detailed information had to be collated. It was only when somebody directly affected (ie a member of staff) saw the detailed figures before the response went out that they noticed the error. Even if the detailed figures had been disclosed, it is highly unlikely that the requester, or anyone else, would have noticed the discrepancy.

This also highlights the importance of having someone check responses before they go out. I’ve posted before about the fact that no process of discovery is fool-proof. David Higgerson wrote yesterday about the irritation for the requester when erroneous data is released. The only real answer to this is for someone who knows the information well to check it over before it is disclosed. And for the FOI Officer to cross his fingers before hitting send.

If you don’t use it responsibly, you’ll lose it

Wow, the end of February already! I’m reminded that I started this year by posting my guide to making responsible FOI requests. Judging by some requests that we FOI Officers receive, a reminder is timely.

Here’s a perfect example of the sort of thing that drives us round the twist (and drags the reputation of FOI through the mud). The requester asked universities:

“I am really interested in the heights in feet and inches of the interviewees and the accepted undergraduate population.”

And there’s the requester who uses What Do They Know to bombard hospital trusts with questions such as:

“1) How long does a medical degree take to complete?

2)  How many specialities are there?

3)  Which specialities require surgical ability rather than just diagnostic ability?

4) a) How long does a doctor have to see a patient in any capacity?

b) How many gigabytes of information are on the website provided for doctors by the BMA?

c) How much did the BMA website cost to collate?

d) Is the BMA website open to the general public’s use?

e) If not why not?”

Of course, the person concerned may be honestly curious about these issues. And giving them the benefit of the doubt, they may think that a hospital is the best place to go to ask these questions (rather than say, checking the BMA website). But why they have to send the same questions to 18 NHS Trusts (which is an improvement on the last set that went to approximately 200) I’m not sure I understand.

It’s tempting I’m sure to think that these are just the whinges of public servants who should just get on with it. And to a point you’re right. But I have a sneaking suspicion that sooner or later this Government is going to find that FOI is as inconvenient for them as it was for some in the last government.

Remember the ‘toilet roll’ requests that were rolled out by the Labour Government when it wanted to adjust the fees regulations? I think we’ll someday soon hear a Coalition minister reeling off the most ridiculous requests they can find as justification for tightening up on FOI (there were some hints of this in Martin Rosenbaum’s interview with Lord McNally recently). And this time they’ve got the added argument of the need to make significant cuts to public services. This government likes openness (just like the last one to be fair) just as long as it has the choice over what it is being open about.

So, a reminder – if you or anyone you know is tempted to make an FOI request, ask them to take a look at my ten top tips. Don’t make it easy for politicians to portray FOI as an expensive luxury.

Ten things I love about UK

I’m very conscious, perhaps overly so, of the irony of writing a blog about FOI and openness anonymously. But for the moment at least, I think it remains the best way to do this. The next best thing is to explain a little about where I’m coming from – declare my interests as it were. And as it’s St. Valentine’s Day, what better way than to list the things I love – in no particular order.

1. The Freedom of Information Act

It may be hard to believe sometimes, but despite everything, I am passionate about this piece of legislation, regretted by some but valued by many. That’s why I write this blog. Even when I’m criticising requests or requesters, as I occasionally do, I’m doing so because I fear that irresponsible use of the Act may lead to it being watered down, or that at the very least diminishes its reputation with colleagues. And while people often lament its flaws, I think it’s one of the most open FOI laws in the world. Shame its drafters can’t be more proud of it.

2. The public sector and its employees

I’m constantly dismayed by the portrayal of the public sector and its employees by the media and politicians. It’s not so much a political football as a punchbag. And yes, there are people who earn too much (though not very many), or are lazy, or aren’t very good at their jobs. But guess what? There are in the private sector as well (I know, I’ve worked in both).

Every time a newspaper or an MP decides to take a swipe at a public sector worker or mock a job title that sounds silly to them, they might do well to remember that these are normal people, or in other words, readers and voters. They’re doing something, and meanwhile contributing to the economy, often supporting families, living by all those values that politicians love to espouse.

As one of my readers Tweeted last week, even those “back office” workers that we’re always told are ripe for cuts, are important because they ensure that the police, nurses, doctors, etc. can spend as much time as possible doing what they’re expected to do. If there are less “back office” and “admin” staff, you can pretty much guarantee that those “front-line” workers will be spending more time filling in forms, filing, and less on helping people.

And through it all, whilst being exposed for the crime of claiming a salary by their political masters, threatened with redundancy, and vilified in print, they keep, in the words of Churchill, buggering on. Being inventive. Giving meaningful advice (and, by the way, I’d rather listen to an expert who knows their subject than a politician who has studied the subject for five minutes in the back of their ministerial Jag). Trying to find ways to save money. Making their masters’ vague ideas actually work (and keeping them on the right side of the law). Administering justice. Ensuring those in need receive benefit payments. Getting us to work. Teaching children. Saving lives…

And many of them retain a sense of humour.

3. Politics

Can’t help it. It’s fascinating, isn’t it? The dodging and weaving, the crazy unpredictable deals. The making-historyness of the whole thing. And the sheer grandeur of our political scene. How can you beat the Palace of Westminster as a theatre for our national story? Or City Hall as the goldfish bowl of London politics?

I’m not party political, and I try to keep an open mind. That said, it’s probably fair to say that my politics have moved left of centre over the years. May last year was thrilling, and whilst I may be appalled at some of the consequences, I can’t help gawping on. Bet you can’t either.

4. The BBC

Comedian and songwriter Mitch Benn summed this up so much better than I can, but you know, I do love old Auntie. No doubt she has her faults, but come on, we pay, what? About three quid a week? For often brilliant television and radio which is delivered without interruption from advertisements. For quality impartial journalism, respected the world over. For mind-stretching documentaries that broaden our horizons.

Even its commercial rivals benefit from its existence. Their schedules are made up of programmes that are clearly inspired by the BBC’s work. Their ‘talent’ was often groomed (in the nice way) by the BBC.

It’s got to be one of the very best things about this country and without it we would all be the poorer. I have no objection to paying my licence fee (and frankly would pay more with pleasure). For goodness sake, they brought us…

5. Doctor Who

Yes, FOI Man is a geek. It’s a shock I know.

6. Information professionals

This is for all those librarians, information specialists, archivists, records managers, and of course FOI Officers. What we do has real value, and we shouldn’t stop fighting to make that clear to colleagues, politicians and the media.

I heard of the staff of one library service, threatened with job cuts of two-thirds, who were told by a senior manager that they weren’t needed anymore because of Google. Aside from the crass insensitivity and ignorance of this statement, it really demonstrates the arbitrary nature of some of the cuts that are going on. Instead of basing decisions on considered analysis of our public services, decisions are being made on the basis of managers’ and politicians’ personal prejudices and guesswork.

Sometimes you need people who understand the organisation, who know their subject inside-out, who know where to look, who understand the legal requirements, who can balance them with practical realities. In the Information Age you need the very best scouts to plot your path through the information jungle.

7. The NHS

Can you imagine getting seriously ill, or breaking your leg, and your first thought being “Oh God, did I remember to set up my insurance?” or “I wonder what my bank balance is?”. Thank God we live in the UK and have the NHS. We really should be very proud of it.

8. That things are sometimes very complex

In a few months’ time we’re supposed to be being asked whether we’d like a new voting system. I can already predict the main argument of the ‘No’ campaign. AV will be too complicated for people to understand. Really? Really? Yes, they’ll look you in the eye and tell you that people can’t write 1, 2, 3 in order of preference on a piece of paper.

Complexity is beautiful. The FOI Act could have been drafted to say exactly what information would be disclosed and what wouldn’t. It would have been simpler. But it wasn’t. We’ve got prejudice and public interest tests. We have to make judgments and balance theoretical ideals. It’s often not very easy. But it’s much more interesting and it means that the Act doesn’t stagnate – the boundaries of openness will be constantly in flux.

Current events demonstrate the value of complexity perfectly. Egypt had a very simple political system until last week. Now things will very likely never be simple again. Freedom is complex.

9. The Law

It’s not always convenient. Last week 200-odd MPs (perhaps that should be 200 odd MPs) found it so inconvenient they opted to vote to break it. Funnily enough, quite a few leading politicians around the world take this approach. They’re generally called Dictators.

Freedom is protected by the law. I’ve generally found that judges, despite their reputation, talk a hell of a lot more sense in their judgments than politicians do when they react to them. Next time you hear a judgment reported that makes them huff and puff with indignation, try reading what the judge actually said. He or she will have set out their thought process. It will be based on precedent and existing law. You might not agree with their conclusion, but at least you’ll understand why they reached it. And it will be based on reason and learning, not what will keep a few voters or vested interests in key constituencies happy.

10. And last but not least

She knows who she is. Without her encouragement, support and patience this blog wouldn’t exist.

Happy St. Valentine’s Day. Hope you’re as fortunate as I am today.

What is an FOI request?

Chris, commenting on my last post, asked why FOI requests are treated as ‘Special’. Surely, he suggests, the way that the legislation was drafted, there shouldn’t be any distinction between the requests that we class as ‘FOI’ and other, more routine enquiries?

Chris, you’ve opened a huge can of worms there. Thankfully, I’ve had some help from another FOI Officer – do take a look at their extensive answer in the comments to my last post. I’ll see if I can add some context here.

The truth is, Chris is absolutely right. Section 8 of the FOI Act defines a request as:

“a request which –

(a) is in writing,

(b) states the name of the applicant and an address for correspondence, and

(c) describes the information requested.”

You can see the problem. This definition encompasses pretty much any enquiry that anyone makes to a public body. Even those made by other public bodies. It covers enquiries that are already covered by other legislation. It covers things that the writer never intended in their wildest dreams to be classed as FOI.

What most people responsible for implementing FOI were considering at the start was “how do we avoid unnecessary bureaucracy?”. We don’t want to make it harder for people to get information we already give out. We don’t have any more resources to deal with this legislation. And we really don’t want to annoy colleagues who have established and effective processes in place.

So any enquiries that were already dealt with under existing procedures were left that way. Where authorities thought things through properly, they also made sure that targets for answering correspondence generally were brought into line with FOI (I know of at least one authority that thereby doubled its own targets for answering correspondence, so it wasn’t all bad news).

In addition, we were expected to maintain statistics on the numbers of FOI requests received. In order to report on statistics we had to be clear what we were going to count. Clearly we couldn’t count the ones that were already being dealt with under other procedures as they weren’t being logged with us. Routine enquiries – for published material, for application forms, for details such as opening times – were excluded. What was left was what we now call ‘FOI’. A pretty common definition of these requests used in many authorities is:

  • it mentions FOI or EIR and/or
  • it will be complex to comply with and/or
  • staff are unsure how to deal with it and/or
  • it is for information that wouldn’t normally be disclosed.

You would not believe the hours and days of my life that I have spent arguing with colleagues about whether a piece of correspondence should be classed as ‘FOI’ or not. Never mind the fact that unless they’re planning to withhold the information it really doesn’t matter as long as they answer within 20 working days. Or that if they are planning to withhold it, then it definitely should be dealt with under FOI procedures. It causes real angst to people.

Why? Generally because, rightly or wrongly, people perceive FOI procedures within their authority as more complicated than other processes. In many organisations, a response to a piece of correspondence marked as FOI has to be sent for formal approval. The same enquiry, if not marked FOI, could be answered the same day by the relevant team without such formal approval. So there’s a clamour not to mark requests as FOI if it can possibly be avoided.

It’s an arbitrary distinction to a degree. It’s entirely possible that somebody could ask for an internal review of the response to their enquiry which wasn’t treated as FOI if they weren’t happy with it. It’s equally possible that the team concerned might disclose information that they shouldn’t do because checks weren’t carried out.

I think, unfortunately, it also has a lot to do with how many people in public authorities still see FOI. It is, in their view, still an expensive and time consuming imposition. More bureaucracy. The truth is that the things that public employees hate the most about FOI are, for the most part, not even required by the legislation – just by their own political masters and senior managers.