Tag Archive for responding to requests

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.

Vexatious requests – new Tribunal decision

Just a quick post from me today to flag up an interesting Tribunal decision on vexatious requests (s.14 of the Act). The case is particularly interesting as both the Tribunal and the Commissioner are seen to support the use of the provision to defend against the FOI equivalent of ‘Denial of Service’ attacks.

The decision is also entertaining in its descriptions of the lengths that the University concerned and the Information Commissioner went to to establish that a number of individuals were acting in concert.

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.

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.