Tag Archive for role of FOI Officer

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.

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.

Is FOI purpose-blind?

Is a public authority allowed to question why you want information? FOI Man investigates.

It’s a standard mantra that we’ve all got used to trotting out, both within and outside of public authorities. All FOI requests should be dealt with irrespective of who has sent them and why they want the information. But just what is this based on?

The truth is that there is no directly stated requirement of this kind in the Act. As the Information Commissioner’s guidance states:

“There is no specific reference in the FOIA or the EIR to the principle that the identity of the requester should be ignored, but it is the absence of references in the legislation to the identity of the applicant from which the general principle is drawn.”

The same goes for the reason as to why the request is made (although the European Directive on which the EIR is based does say that applicants shouldn’t have to declare an interest). It’s really just that it is a practical inference from the way the legislation is drafted that as the authority is under an obligation to disclose requested information to anyone who asks, it shouldn’t matter who they are or why they are asking.

So if an authority does ask you why you are making a request, they’re not strictly contravening the Act. It is pretty broadly accepted that it is bad practice though. The Commissioner and anyone else looking at an appeal further down the line would undoubtedly take an adverse view of such questioning unless it could be justified. Which is probably why the s.45 Code of Practice says:

“Care should be taken not to give the applicant the impression that he or she is obliged to disclose the nature of his or her interest as a precondition to exercising the rights of access, or that he or she will be treated differently if he or she does (or does not).”

Having said that, it would be well worth you having a chat with an FOI Officer/member of an authority’s staff who does ask you why. It may well be that they are trying to (albeit clumsily) provide advice and assistance by establishing what you really want to know. It could be that your request hasn’t been clear enough, or that they think you’re asking the wrong question and want to point you in the right direction. But I’ve always trained staff to try to avoid the ‘why’ question because of the potential for misunderstanding.

So in summary, it’s a bad idea for authorities to ask you why you’re making a request, even though it isn’t directly prohibited by the Act (or the EIR). Thanks to Ross Pollard (@ishbroken on Twitter) for asking the question.

Why the public interest test is so important

Most exemptions are subject to a public interest test. But why is it so important to ensuring that the Freedom of Information Act works?

If you make FOI requests, you probably hate it when public authorities respond citing an exemption. If the Bill that the Labour Government first presented in 1999 had stood, all requesters would have remained frustrated.

The Bill allowed for appeal to the Information Commissioner. But the Commissioner would only have been able to advise public authorities to disclose information. Few, if any exemptions were subject to a public interest test. So the Commissioner would only have been able to advise disclosure if it was clear that the public authority had mistakenly applied an exemption. Let’s take a look at what that means.

I’ve carried out a rough and ready survey of the decisions reached by the Commissioner in 2008 relating to one of the exemptions, section 36 (prejudice to effective conduct of public affairs). Section 36 is a very broad exemption and has been criticised in the past because of this. In 2008, 30 decision notices were issued relating to the exemption. In 21 of these cases, the Commissioner found that the information did fall within the exemption. Not really terribly surprising given the breadth of the exemption.

But of those 21 cases, the Commissioner ordered disclosure in 13 cases because he found that the public interest test had been applied incorrectly. And that’s why the public interest test is so important. If all the Commissioner could consider was whether an exemption applied, his power to challenge public authorities’ decisions would be very limited. The public interest test has empowered the Commissioner to take a broader view, and as a result has really given the FOI Act teeth.

So what is the public interest? It’s not defined in the Act, but it is a well known concept in law. In a high profile Australian court case, it was defined as:

“…a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members…events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest.” (DPP v Smith [1991] 1 VR 63 at 75 for those lawyers amongst you who like to check my facts)

Or, as the Information Commissioner’s guidance more succinctly put it, the public interest is that which serves the interests of the public, not necessarily that which the public is interested in. So whenever we apply a qualified exemption (which is most of them), we have to consider whether the public will be better served by disclosure or by withholding the information.

The Environmental Information Regulations explicitly say that public authorities should presume that information should be disclosed when considering the use of exemptions. But the FOI Act, believe it or not, doesn’t actually say that. In practice though, the courts have found that there is an assumption that information should be disclosed running through the Act. It is, after all, called the Freedom of Information Act.

This means that one of the arguments for disclosure is always that there is a public interest in accountability and transparency. There may well be arguments in favour of disclosure in addition that are specific to the information requested. So, for example, it might be argued (and often is) that as an issue is currently the subject of controversy, there is a public interest in disclosing such information so that public debate can be well informed. The arguments for disclosure can be very general, yet they should be given considerable weight.

The next step is to consider the arguments against disclosure (and in favour of applying the exemption). Of course, in truth, unless we (or at least somebody in the public body) thought there were strong reasons for withholding the information, we wouldn’t even have started down this route. Try making an FOI request to a public body for its written consideration of the public interest in cases where the information was eventually disclosed – there won’t be any record. Part of the FOI Officer’s role is to be aware of case law and have a sense of whether or not withholding information is viable. If we don’t believe that a public interest can be successfully argued, expect us to resist the reliance on an exemption in the first place. Of course there are times when we have to find arguments even if we don’t think there is a strong case, but it is usually possible to find reasons – there is generally some grain of justifiable concern if someone is insisting on withholding the information, even if we’re not necessarily convinced that it would survive an encounter with a member of the Commissioner’s staff.

So what does survive an encounter with the Information Commissioner or the Information Tribunal? Analysis of their decisions demonstrates that it is about how convincing the argument is. It will be more convincing where an authority is able to produce evidence of the damage to the public interest. A great example I saw recently was when a University argued successfully in favour of section 36 to withhold a list of email addresses for all their staff. Quite often in the past, the Commissioner has ruled in favour of disclosure in these kind of cases, but what I think was different about this case was that they were able to produce evidence, in the form of experience of previous accidental disclosures, that disclosure could cause significant disruption to the university, and that this was not in the public interest.

The public interest test is a complex process. You can’t say for sure, whether you’re a public authority or a requester, which way appealed decisions will go. It ensures that the application of exemptions is fluid, that FOI doesn’t become trapped in the year 2000 when the Act was passed. It’s a brilliant mechanism and one that shouldn’t be underestimated in any assessment of how important the Act is in practice.

 

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.