Tag Archive for Twitter

What we don’t know

FOIMan explains why some truths we cling to about the UK’s FOIA are not quite what they seem.

A few months ago I was delivering some FOI training to a local authority (always available at competitive rates, folks!). I was explaining how far council officers were expected to go when searching for information to answer an FOI request. In particular I stated that if it was known that information had been deleted but still potentially existed on a backup, the backup should be searched.

The council’s FOI officer cautiously picked me up on my assertion. They had, they told me, had a written statement from the Information Commissioner’s Office (ICO) that contradicted me. So surely I was wrong?

The truth is that despite what we are often led to believe, there are some aspects of FOI law that are not certain. The legal system has not yet settled on the ‘right’ answer. This is the case when it comes to debates about information held on backups and whether it is considered held. In the example above, neither I nor the ICO are technically wrong; but then strictly speaking we’re not right either. We’re both interpreting the existing law, and both interpretations are arguable.

This is because English law revolves around the concept of precedent. But precedent can only be set by courts that make a decision beyond a certain stage. In a recent Upper Tribunal decision (LO v Information Commissioner, [2019] UKUT 34 (AAC) (29 January 2019)), Judge Jacobs was critical of the Information Commissioner for treating decisions of the First-Tier Tribunal (FTT) as ‘authoritative statements of the law’. Strictly speaking, they’re not. When it comes to backups, we only have rulings of the FTT to go on, so there is no definitive answer yet on that issue. Interestingly, on this issue, the ICO choose not to accept the FTT’s approach without question in their guidance.

My latest piece for PDP’s Freedom of Information JournalWhat we don’t know (which you can access here) – looks at this issue in more depth – looking at the backups query, but also a couple of other questions which have not yet been answered definitively – perhaps surprisingly. You’ll see that there are disputes between the ICO, the FTT and the s.45 Code of Practice which will only be resolved if those matters reach the Upper Tribunal. It ends by asking what questions you may have about FOIA or the EIRs – as I’ve mentioned before, we’d like to answer some of your conundrums in a future issue of the Journal.

FOI requests via Twitter – a Supreme problem

FOI Man looks at whether FOI requests can be made via Twitter, and concludes that it just isn’t a very good idea.

Earlier today, the UK’s Supreme Court started to use Twitter to much excitement (well, a little, and mostly from lawyers and geeky-types like me). Their first Tweet directed Twitter followers to their Twitter policy, available on the Supreme Court website.

Personally I was impressed that the Supreme Court actually had a Twitter policy. But the stirrings in my Twitter-stream were not about that. No, some of you were concerned about a short statement half way down the page:

“Sending messages to our Twitter feed will not be considered as contacting the Supreme Court for any official purpose (including the administration of cases or Freedom of Information requests).”

Oh dear. The thing is, this goes against advice provided by the Information Commissioner’s Office last year. After some deliberation, they came out with a statement saying that as long as the name of the Twitterer was clear (perhaps in their profile), and the information requested was clear, a Tweet could be a valid FOI request. And I agree with their analysis.

This all comes down to the definition of a request at section 8 of the FOI Act. To be valid, a request has to be in writing; it must provide the name and address of the requester; and it must describe the information that they are looking for. That’s all. It’s long been accepted that you could in principle make a request via text message. It’s not much of a stretch therefore to say that the same applies to Twitter.

In short, if someone does make a valid request to the Supreme Court via their Twitter address, and they ignore it, the requester could complain, and the Information Commissioner could slap them on the wrists for not complying with the Act. So their statement is pretty meaningless. And of course, because they’ve said it, there are now people up and down these isles submitting requests that they wouldn’t have done if the statement wasn’t there, just to prove a point.

My view on this is that using Twitter to make an FOI request is generally a waste of everybody’s time. Of course you can make a request through that route. But why? Firstly, it’s not the easiest thing to fit a request into 140 characters – there are ways round that (eg links), but if you’re going to link to another document why don’t you just use email in the first place? Secondly, if, like the Supreme Court, the authority clearly isn’t geared up to receive requests through that route, the chances are that your request won’t be seen. So then you complain. Well, woopy-doo (I believe I may have invented a new utterance of celebration, but bear with me) – you’ve successfully caught the authority out. But you haven’t got the information you wanted. So who wins here?

Somebody made the excellent point that it’s not a massive job to instruct whoever is maintaining the Twitter feed that they might get FOI requests and to be on the look out for them. That’s absolutely true. But in practice, most authorities probably aren’t aware that requests can come through that route. Jonathan Baines blogged last year about one surprising authority that didn’t seem to be (I promise you, you’ll love this, if you haven’t heard about it before). Also, even those of us who are aware – is this really a priority amongst the many messages that we want to get out to colleagues about FOI (and other things)? I have mentioned it to the people in my authority who maintain official Twitter accounts (and mine isn’t one before you unleash a thousand Tweets in my direction, those of you of a mischievous disposition – @foimanuk is a personal account), but I’m pretty sure that they will still be surprised the first time that it happens (that being the point – it’s still a very unusual thing to do).

And let’s be clear. There are lots of ways to make a valid FOI request that would most likely get you nowhere. In theory, next time your bins are being emptied, you could hand a written note to your waste collection operative, and as they’re providing a service for the council, that would arguably count as an FOI request. Good luck with that.

I’ve got no problem with FOI requests being made in any format or via any media in principle. Some authorities are very good at adjusting to new technologies and providing new ways for the public to interact with them. But many aren’t so good, or have limited resources to support additional communication portals. Is there really any point in sending a request through unusual media if the likelihood is that the authority won’t see your request?

Postscript, Tuesday 7 February

Shortly after I published this post on Monday, the Supreme Court Communications team tweeted the following, addressed to myself and Andy Mabbett, who Tweets as @pigsonthewing, (and who had first alerted me to the Twitter Policy):

@pigsonawing [sic] @foimanuk Fair point! We’ll accept FOIs via Twitter and will amend our policy accordingly.”

And true to their word, the statement in their policy now reads:

“We would prefer to receive Freedom of Information requests via email or letter, in order to assist us in giving them a full response, but we note the Information Commissioner’s Office guidance on the validity of Twitter as a channel for receiving such requests and will handle them in accordance with that guidance.”

A swift and sensible response to the points raised, and it reflects well on the Communications team at the Supreme Court. Let’s hope there will be more moves towards openness in our court system. For more on that, I do recommend Adam Wagner’s post from earlier today.