Tag Archive for responding to requests

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.

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.

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.

Third parties and FOI

Journalist David Higgerson highlighted a case yesterday where the Department for Transport (DfT) had refused a request for detailed information about overcrowding on trains. The exemption applied was s.43 of the FOI Act, which can be used to protect information which would, or would be likely to, prejudice commercial interests.

First off, let’s give credit where its due – DfT should be congratulated on their openness in publishing all their responses to FOI requests online routinely. This probably wouldn’t have come to light if they didn’t do that. Not many public bodies (not even my own) take that approach. And I’d also say that whilst it’s not perfect in its wording, generally speaking, the response is actually pretty detailed and helpful notwithstanding the decision not to disclose all of the information.

But David draws attention to a serious issue. The key reason given by DfT was that the Train Operating Companies (TOCs) had refused permission for details of passenger numbers to be disclosed. DfT are putting together a new dataset which relies on the cooperation of the TOCs, so they were concerned that if they disclosed such data, the TOCs might not help with the new project.

This highlights a key problem for public bodies answering FOI requests. All information we hold is subject to FOI, but not all of it was created by us. In my experience, one of the most common reasons why exemptions are even considered is to avoid offending third parties. And sometimes third parties can be pretty aggressive in making clear that they don’t want the information that they supplied to be disclosed. Often, they just have no understanding of what FOI means for public bodies, even though they are usually informed in advance about the possibility of disclosure, and we try to explain the situation again when requests come in.

Public authorities need to get better at standing up to third parties. In my experience, some are too inclined to just accept the third party’s view that information should be withheld. Government departments in my experience are particularly prone to this. We have to remember that it is our decision in the end, and not the third party’s.

If the Government is serious about openness, it really needs to tackle the attitudes of the organisations that it does business with, especially amongst those private companies that provide services to the public. If they can’t be made to co-operate, they should be at least threatened with being brought under the auspices of FOI. Then they’d understand the situation much more clearly.

The most powerful third parties even attempt (and sometimes succeed) to change the law to avoid their information being disclosed. A few years ago, MPs fed up with their correspondence to local authorities being disclosed in response to FOI requests tried to enact an amendment to the legislation to specifically exempt any correspondence from MPs. Oh, and while they were at it, they tried to sneak in an exemption for both Houses of Parliament. Eventually that proposal was defeated, but only because once it had passed the Commons, their Lordships were too embarrassed to support it any further.

Yesterday, by Statutory Order (following the passing of the Constitutional Reform and Governance Act by the last Government), the FOI Act was amended to strengthen the exemption for Communications with the Royal Household (s.37). From now on, public authorities will be able to (and will no doubt be leant on to) use an absolute exemption (ie with no public interest test) to withhold correspondence between the Monarch, the Heir and the second in line to the throne and themselves. So in future nobody will be able to find out if the Prince of Wales is seeking to influence planning decisions or the design of hospitals. This only came about, I suspect, because some public bodies felt that there was a public interest in disclosing such correspondence in the past, and pointed out that in this circumstance, they had to disclose the correspondence. That won’t have been happily received.

Some third parties can be very powerful indeed.

A million answers from TfL

Yesterday there was some discussion on Twitter about a request made to Transport for London (TfL) through WhatDoTheyKnow. People were asking if TfL’s response was compliant with FOI.

The request related to the Barclay’s Cycle Hire Scheme running in London. Earlier in the year, the Mayor of London and TfL (of which he is Chair), had boasted of 1 million journeys made on hired bicycles through the Scheme. The requester congratulated them on this and asked for data on each of the million journeys.

A month later, the response from TfL arrived informing the requester that the data would shortly be made available in their online repository, which would require the requester to register. To give him a flavour, the response included data on 100 journeys.

To cut a long story short, the requester was not happy and has asked for an internal review. So was the response from TfL compliant, and if not, how should they have answered?

In short, and from a purely technical point of view, no. The response didn’t provide the information asked for, and nor did it explain which exemptions were being applied.

It sounds to me like a classic case of a senior manager in TfL having difficulty with the practicalities of FOI and suggesting a response in the hope that the requester would go away until they’d been able to work out how to make the data available. On the plus side, TfL clearly were looking at making the data available online (and have now done so), so it’s not that they are just trying to be secretive . So how should they have answered?

The most likely reason that they were not able to provide the information (and this is alluded to in the response)  is that  supplying the data would cost too much. After all, a million records is a lot of data, and there may be serious technical difficulties in transmitting that data. It may cost more than £450 (the cost limit for locating, retrieving, and extracting data under FOI) to employ a consultant to find a way to do that. If this was the case, they should have explained this in their response.

The other alternative that I would have gone for is the exemption at section 22 (future publication). If you’re going to publish information in the future, as TfL indicated they were going to, and don’t feel able to make it available now, that would seem to be a reasonable approach. It is subject to a public interest test, but the fact that the information would be available very soon, and the likely cost to the public purse of providing it sooner would seem fairly persuasive arguments against immediate disclosure.

There’s obviously a separate issue about requiring users to access data via a site which requires registration. But once the information is made available, you could use section 21 (otherwise accessible) to refuse the request and point to the data repository. It’s likely this would satisfy the Information Commissioner unless there was a significant charge or the requester was able to demonstrate some reason why this didn’t satisfy their needs.

I sympathise with TfL – 1 million lines of data could well be difficult to provide via email (one could even speculate that if it had been disclosed via WDTK it might have caused problems for the WDTK website and/or users who tried to download it). But they could certainly have come up with a better answer than the one they gave.