Upcoming events featuring FOIMan

FOIMan highlights some upcoming events he’ll be speaking at.

Freedom of Information in Practice: this Wednesday (17th April 2019) at 12.30pm I’ll be delivering a webinar for CILIP (the Library Association) which is open to anyone. We’ll be looking at the practical aspects of FOIA compliance: logging and tracking requests, training, establishing an internal network of helpers and so on. Details of how to book to attend can be found here on the CILIP website.

Effective Records and Information Management: I’ll be leading a day exploring the features of a records and information management programme for Understanding ModernGov on 24 April 2019. A programme and details of how to book can be found here on the Understanding ModernGov website.

Raiders of the Lost Archivist – the Quest for Compliance in the Netflix Era: join myself and Alison Drew as we discover the impossibility of escaping information governance, data protection, record management and freedom of information on a night in with the telly. If you’re attending the Information and Records Management Society (IRMS) conference at Celtic Manor between 19th and 21st May 2019, you’ll be able to hear what Bond, Indiana Jones, Bodyguard and a ton of sci-fi can tell us about the growing relevance of these issues in the modern world. You can find details of the IRMS conference and how to attend here.

Records Management and FOI: I’ll be making a return to the IRMS’s Public Sector Group on 12 July 2019 to discuss how records management does (and sometimes doesn’t) help with FOI compliance. IRMS members have priority for bookings. Details will be available in due course here on the Public Sector Group part of the IRMS website.

Complying with Data Subject Access Requests: a full-day course on handling subject access requests under data protection laws provided by Understanding ModernGov, and taking place on 17 July 2019. Full details here on the ModernGov website.

Watch out for details of more events as they are announced.

 

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.

Are Housing Associations subject to EIR?

FOIMan highlights an FTT decision which provides the latest word on accessing information from housing associations.

Despite governments undertaking to examine the addition of housing associations to the Freedom of Information Act’s (FOIA’s) coverage, it has yet to happen. The Information Commissioner is the latest to call for this change.

There has been debate though as to whether Housing Associations are subject to the Environmental Information Regulations (EIRs). Generally the Information Commissioner has decided not, but last year she put the cat amongst the proverbial pigeons with a decision that an East London housing association was subject due to its ‘special powers’. Lynn Wyeth wrote an excellent piece in the Freedom of Information Journal in the Autumn comparing the Commissioner’s decisions on this issue and seeking to explain why the decision in relation to Poplar Housing and Regeneration Community Association (Poplar HARCA) was different. In summary: it’s complicated.

Well, the FTT has now decided that perhaps it isn’t complicated after all: they’ve upheld Poplar HARCA’s appeal and have concluded that it is not subject to the EIRs. In the course of the appeal, the Commissioner in fact suggested that she’d got it wrong in an earlier case (Richmond – FER0700353), which explained the variation. The FTT agreed that the Commissioner had got it wrong, but in their view it was the Poplar decision that was incorrect. 

As with a lot of disputes over the coverage of the EIRs in the last few years, the case revolved around the Fish Legal case that was referred to the European Court of Justice in 2014. That case examined the definition of public authority at regulation 2(2)(c) of the EIRs and the underlying Directive. It concluded that to ‘carry out functions of public administration’, a body had to have been ‘entrusted with the performance of services under a legal regime’; the services had to be of public interest; and it had to have been vested with ‘special powers’ in order to provide those services.

In the Poplar case, the FTT found that Fish Legal had defined ‘legal regime’ as meaning that there had to be a national law entrusting the body with the performance of those services. This was where the ICO’s case fell down: the FTT could not identify such a law. Without the ‘narrow’ definition of a legal regime set down in Fish Legal, the FTT would have taken a different view – but effectively its hands were tied.

For now then, private housing associations will not be subject to FOI nor the EIRs. Until the government either chooses to extend FOI and the EIRs to them, or inadvertently entrusts them with performance of services under another national law. Or until there is a successful appeal to the Upper Tribunal – whichever of these is sooner.

 

London councils: how good are they at FOI?

FOIMan highlights a new report from the Campaign for FOI on good practice – and whether London councils are meeting it.

The Campaign for FOI has conducted research into the way London local authorities meet their FOI obligations – and has found a mixed picture. They found that:

  • whilst some councils answered almost all requests within 20 working days in 2017-18, three quarters of them failed to meet the ICO’s expectation of 90% answered on time, and seven councils answered on time less than 70% of the time
  • some councils even ignored the ICO’s interventions
  • a third of councils did not publish FOI stats as of December 2018, and very few councils publish figures on refusals
  • four councils do not publish an email address that applicants can use to make requests, instead insisting that requests are submitted via a form, and half of councils do not publish a telephone number so that applicants can ask for advice
  • two-thirds of London councils do not have a disclosure log
  • some councils reported having no internal guidance on FOI, and only a handful published their guidance on their website
  • some council guidance contained errors such as suggesting that staff could charge applicants.

The report makes 14 recommendations including quarterly publication of statistics (which is in any case what is required now under the new s.45 code), that the ICO be clear with authorities that they could face enforcement action, that stats, internal guidance and disclosure logs be published, and that authorities be more helpful to applicants. The full report can be read via the Campaign for FOI’s website (and you may want to consider donating to the Campaign if you find the report interesting).

If you’re working for a council and struggling with FOI, you will find The Freedom of Information Officer’s Handbook addresses all of these issues. You can, of course, also get in touch for training and for help with revising FOI policies and procedures – if that’s of interest, drop me a line.

FOI and Procurement

FOIMan explores how FOI and transparency rules interact with the process of procuring new goods and services by public authorities.

freedom-of-information-graphic-smallOne chapter that didn’t quite make it into my book due to lack of space and time was going to focus on the interaction between FOI and procurement processes (though of course the book still includes useful tips for dealing with requests about contracts). I’ve sought to redress this in my latest article for the Freedom of Information Journal. You can, of course, subscribe to the journal, which contains lots of useful articles and the latest FOI news – details can be found opposite and at http://www.pdpjournals.com. However, you can also read the article here.

My next FOI journal piece will highlight what we don’t know about FOI – some of the ‘facts’ that we bandy around about the Act, but are not quite as set in stone as we might think…

By the way, we’re planning an experiment for a future issue of the journal. If there’s an FOI or EIR problem that you’ve never quite got to the bottom of and would like me to explore, let me know either directly or via PDP. I can’t promise to deal with every query submitted, but the aim is to answer a selection of queries in the article. If it works, we might just do it again. Even if you don’t subscribe to the journal, the eventual article will, as ever, be reproduced here. So if there’s something you don’t know about FOI, and think others might be puzzled by it too, drop me a line with ‘FOI Journal Q&A’ in the subject line and I’ll see what I can do.