Tag Archive for role of FOI Officer

You be the judge

FOIMan comments on a revealing annotation to a request made via WhatDoTheyKnow.com.

MPs' expenses are in the news once again

Expense claims do cause a lot of trouble for FOI Officers

In my experience, one of the most common causes for a FOI response being delayed is one that many FOI Officers are reluctant to publicly acknowledge. It is that often colleagues are less than cooperative. This can take the form of outright refusal to provide information; of foot-dragging; or simply of being awkward and aggressive. All of this goes on behind the scenes and is rarely exposed to sunlight. After all, FOI Officers have to remain professional and maintain good relations with their colleagues as far as possible.

So we can be thankful to one academic who has thoughtfully published the internal email correspondence between themselves and their FOI Officer on the WhatDoTheyKnow website. The cause of this was a freedom of information request made through the site for the academic’s expense claims. They note that they are “far from impressed” with the handling of the request and that “‘work’ is often self-inflicted” by public bodies based on their experience. They ask us to “be the judge”. So let’s do that.

The request was received on 30 January, and acknowledged on the 3 February. On the same date the academic – a professor – was informed of the request, and asked “Would you please advise how we should handle it?”. The response at first sight seems somewhat sharp to send to a colleague:

“I’m not sure what you are asking. If it’s guidance on how to answer FOI requests then I would have thought the university’s FOI Officer would know how to do their job. If not, they could do worse than to read my book…”

What I strongly suspect the FOI Officer was attempting to do here was to consult the professor as to her views on disclosure – as advocated by the section 45 Code of Practice. In any case, it’s good manners. But it was worded a little loosely, so it’s kind of the professor to volunteer her assistance, even if it does take the form of a plug for her own book.

There is subsequently a delay. Let’s remember that FOI Officers are dealing with lots of requests at the same time, not to mention having other responsibilities. So there may be good reasons why they don’t immediately come back to the professor. On the other hand, perhaps the response to their first email has made them reluctant to re-engage.

When they do write again to their academic colleague, they thank them for their email – which is very nice of them in the circumstances – and advise that “[T]he University will withhold information on your expenses on the grounds of Section 40(2) Personal Data.” Is our professor happy to hear this? Not a jot of it:

“That seems a rather defensive position to take. Surely the first step in such requests is to ask the staff member whether or not they object to the information being disclosed. If they don’t then publish.”

The observant amongst you will note that the FOI Officer has already asked the professor – two weeks previously – how they want the request handled. And they don’t appear to have answered yet.

They do, however, go on to explain – you can almost hear the grinding of the gritted teeth that they’re talking through – how the FOI Officer should handle the situation should the staff member object. The professor of course being the staff member here. Still no indication of her actual view on disclosure though. She helpfully refers the FOI Officer to an Information Tribunal case. Not just any Tribunal case though: “my Information Tribunal case”.

It’s worth noting here that whilst it is common practice to disclose expense claims by those in senior management positions, it is certainly not routine to do this for other members of staff. The Information Commissioner’s definition document for higher education institutions requires universities to publish totals claimed by “senior staff” – and defines this as staff earning over £100,000 per annum and on the senior management team. In my time as a FOI Officer in higher education I don’t recall ever dealing with a request for expenses claimed by academics outside senior management. A quick perusal of WhatDoTheyKnow confirms that such requests are rare. Recently the Commissioner accepted before the First-Tier Tribunal that academic salaries were exempt from disclosure in a particular case. I don’t know what academics at this university are told about their expense claims, but given the above, they may have been led to expect that disclosure was unlikely. If this is the case disclosure could well be unfair, which would support the use of the s.40(2) exemption to withhold expense claims by academic staff. So in the absence of a clear, unambiguous statement from the professor that they are content for their claims to be disclosed, I can understand why the FOI Officer would have proposed to withhold the information. They are not being defensive, merely adopting a default position that is perhaps reasonable in the circumstances. In any case, all the professor has to do is indicate that they don’t want their expense claims to be withheld and they can be released (which they know, as the quote above illustrates).

No doubt occupied with other requests and duties, the FOI Officer takes a little while to go back to the academic again. By this point, they have started to suspect – again, without very much to go on – that the professor may want to disclose her expenses. So they ask whether she has claimed any.

Her academic colleague takes umbrage at being referred to as a “Visiting Professor”. Her pride apparently wounded, she questions why the information is not being sought from the university’s systems, and goes on to add:

“The way this request has been handled has not filled me with a great deal of confidence in the competence of the university’s FOI Office. I can only imagine the negative impression given to the applicant. It has been a useful experience, however, to see how the system works (or rather doesn’t) from the inside.”

I don’t know why the information wasn’t being sought from the university’s systems. Perhaps the FOI Officer had already attempted to, had found nothing, and wanted to confirm this with the professor. Maybe – and boy, I can relate to this – they had experienced problems with data obtained from the finance systems previously and thought it might be easier to go straight to the horse’s mouth. But I do know one thing. The professor hasn’t answered the question. Or indeed, given their consent for the information to be disclosed.

I’ve been a little flippant thus far, but I do think this illustrates a real problem for FOI Officers. If you take the handling of any FOI request out of context, you will see delays, and maybe questions that don’t make sense to the outside observer. It rarely helps improve matters to put individuals under pressure from the start by being unnecessarily unpleasant to them or publicly questioning their competence. It certainly doesn’t help if colleagues repeatedly fail to answer questions put to them by FOI Officers in their organisations trying to prepare responses.

At best, the attitude displayed by this academic shows disrespect for a colleague trying to do a difficult job. At worst, it has contributed to delaying the response to the requester – the response is now overdue. The professor may be able to point to failings by the university’s FOI office, but she hasn’t exactly helped them. In her commentary on the request, she comments that the FOI Officer failed to pick up the phone – but it doesn’t appear that she has attempted this herself. At every stage she had the opportunity to indicate her willingness for the information to be disclosed, but instead chose to score points off a junior colleague, apparently to make a political point.

Rudeness may be understandable – though not really – in someone who resents FOI, forced into the sunlight reluctantly. But if you’re someone who professes to champion FOI and has made their name by using it to hold others to account, you would think that you’d do everything in your power to assist a colleague to meet the Act’s obligations. So it’s odd that the academic at the centre of this sorry tale is one Heather Brooke – famed for being one of the journalists who pursued the disclosure of MPs’ expenses. By adding her annotation to WDTK it cannot be denied that she has enhanced transparency, but I’m not at all sure that it exposes what she intended.

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.

When it comes to making FOI requests, it should be quality over quantity

FOI Man observes that while the volume of FOI requests continues to rise, their quality is not.

If you follow me on Twitter, you may have seen my Tweet on Thursday saying that my organisation had received more FOI requests in 2011 so far than in the whole of 2010. This prompted a flurry of “Me Too”s from fellow FOI Officers. The general consensus seemed to suggest roughly a 25% rise in requests this year. As unscientific as this survey is, it does suggest that use of FOI is still on the rise.

One observer sensibly commented that more requests doesn’t mean more openness. We should consider quality over quantity.

This is absolutely right. Although we’ve had more requests this year, I’ve also refused far more than ever before. Not, in most cases, due to any of the ‘Part II’ exemptions (or EIR exceptions). But my use of the s.12 provision that allows us to refuse requests that exceed the ‘appropriate limit’ has rocketed. Similarly, many requests have been refused simply because they are just too vague or don’t make sense.

Now, contrary to popular belief, I don’t sit around trying to construct new and devious ways to keep my organisation’s ‘secrets’. It’s my job to try, where possible, to answer requests. But it’s also my job to manage requests so that they don’t become an unreasonable burden on the organisation. The Act has those provisions in place to allow us to do that, and the Information Commissioner has in recent years made clear that he is supportive of public bodies who do that legitimately. After all, all public bodies are there to do a particular job, and FOI shouldn’t be preventing them from doing that job.

I always offer advice and assistance to help those who make requests that are likely to cost more than the ‘acceptable limit’ to bring their request within the limit. But often they just give up, and in other cases they respond but make it quite clear that they think I’m just giving them the run around. I’m not.

So it really helps if people make realistic requests in the first place. It saves us all time, and it avoids that nasty taste you get in the mouth when I have to refuse your request (however politely – and of course, I’m always polite – I may explain the situation to you). The key thing is to do your research first so that you can focus your request, and then try not to be greedy. “Fishing trips” are tempting, but as well as being expensive to process even if they can be done within limits, they’re quite often disappointing.

If you want to make FOI requests, you could do much worse than to take a look at my handy guide to making responsible requests. I want FOI to work, but it’s not just down to me to make that happen. It’s in your hands too.

Take it Online

FOI Man explains that online discussion between FOI Officers is part of the job, not a nationwide conspiracy.

I’ve become aware of a new form of twisted corruption that FOI Officers are prey to. And been shocked to realise that I too am amongst the shadowy forces at work. Our crime? Subscription to an email discussion list.

Of course, most professions have such a resource. In my own organisation, I know that the Finance Officers follow lists for Finance Officers; the Facilities Officers follow lists for Facilities Officers; and the Chief Executive follows a list for Airline Pilots…no, sorry, Chief Executives. Most people would recognise that this is a cost effective way for professional people, geographically separated, and often isolated in their own organisations, to share best practice and find solutions to common problems.

So why is it that when FOI Officers do this, we are accused of collusion and conspiracy? I know of one requester who had seen the content of correspondence on the list (notably out of context) and complained that all the correspondence was about how to stop information being disclosed. This apparently demonstrated that not only those who posted messages, but also those who read them, were acting against the spirit of the legislation.  Oh right then, case closed.

Of course all the discussion is about how to stop information being disclosed!!! Our jobs are easy when information can unquestionably be sent out. We don’t need to discuss those cases because they are uncontroversial and can be easily resolved. Applying exemptions is the most difficult part of our jobs (which, by the way, means that we use them as sparingly as possible). That’s the stuff we need the help of our fellow professionals with.

It is helpful to know that if you are considering using an exemption, you are not straying far from the pack. But equally, if there are Officers posting to the list arguing that an exemption can’t be legitimately applied, that can lead others to look again and maybe reach a different conclusion. What’s more, there’s no imperative for FOI Officers subscribing to the list to go along with what others are proposing to do. It’s a matter of choice for each institution, quite rightly, how to respond to specific requests.

This ‘revelation’ (which as far as I know, no FOI Officers have ever sought to hide) has prompted some requesters to threaten ‘investigations’. They are speaking to the Information Commissioner. To the media. To Uncle Tom Cobley. To all.

I don’t blame requesters for being unhappy with our responses. I am happy to look again and ask more senior officers to review how I’ve handled requests. That’s the process. I don’t even blame them for asking questions when they receive similar responses from several organisations (but isn’t that pretty likely? If you’ve asked a question about an issue that is sensitive to one organisation, the chances are that it is sensitive to all).

But for goodness sake, can we please be allowed to do our jobs? In an informed way without every routine action that we take being seen to be a conspiracy? What next? Will FOI Officers be banned from reading my blog in case I corrupt them with my dark and cynical ways?

Believe me requesters when I say that if you think that the problems with FOI lie with FOI Officers talking to each other, you are barking up the wrong tree.