Delving Deeper into Denham’s Drive for a Duty to Document

FOIMan examines the Information Commissioner’s proposals for a new duty to document.

In December, the Information Commissioner, Elizabeth Denham, gave a speech at an event celebrating 250 years of freedom of information. During the speech Ms. Denham indicated that she wanted the government to legislate for a “duty to document”.

I wrote briefly about this at the time. But in my latest piece for PDP’s Freedom of Information Journal (available here), I’ve looked further into the Information Commissioner’s proposals.

Amongst the issues explored are:

  • what effect FOI has had on public sector records management;
  • how the Information Tribunals have dealt with the issue of records management;
  • what problems is the Commissioner seeking to resolve;
  • what tools are available to the Commissioner now;
  • and finally, are there any existing duties to document along the lines that Elizabeth Denham suggests?

FOIMan’s Q&As: how many emails?

If a request asks for the number of emails sent by a public body, should it exclude emails that relate to personal or political matters?

Section 3(2) of FOIA says:

For the purposes of this Act, information is held by a public authority if—

(a)it is held by the authority, otherwise than on behalf of another person, or

(b)it is held by another person on behalf of the authority.

Where it says “otherwise than on behalf of another person”, s.3(2)(a) is usually interpreted to mean that emails sent or received in a personal capacity, or party political emails sent or received by politicians and their advisors, will not be held by a public authority. A decision that illustrates this interpretation is Montague v IC & Liverpool John Moores University (EA/2012/0109, 13 December 2012).

However, if someone asks for the number of emails sent or received by a particular individual at a public body, it will not be appropriate to exclude personal or political emails from total figures on the basis that the information is not held. This is discussed in Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29:

There is a distinction between the content of a personal or political email sent from a DWP email account and the fact that one has been sent which might reflect upon the use of resources within the DWP (within the Act) rather than the content of the emails (which is not).

As the decision goes on to say, it might be appropriate to withhold such information if an exemption applies, for example the exemption for personal data at s.40(2). But for the purposes of FOI, the number of emails on a public body’s email server will be information held, whatever the nature of those emails’ content.

Source: Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29


University Challenge

FOIMan welcomes union scrutiny of universities’ FOI performance and suggests other ways they can help FOI.

A press release earlier this week highlighted poor FOI compliance at universities. Not that long ago, of course, many universities were pressing to be removed from the Act’s coverage.

The press release came from UCU, the university lecturers’ union. It is good to see FOI being used effectively by unions and other groups that scrutinise public sector bodies.

However, reading their press release, I had to suppress a smile. It brought to mind the time when, as my university’s FOI Officer, I was dismayed to discover that an officer of our local UCU branch had sent an email to their members instructing them not to cooperate with my efforts to answer an FOI request. In the end I found ways to collate a response which avoided an unpleasant stand-off (let alone a potential s.77 prosecution for obstructing the provision of requested information). It’s also worth saying that this experience was never repeated, and was most probably the result of a misunderstanding.

But it highlights once again that for most practitioners, the most challenging aspect of FOI compliance is attempting to secure the cooperation of colleagues. Not least when others with influence are advocating resistance.

UCU and other public sector unions have found FOI to be a useful campaigning tool. They can help with the evolution of transparency in public sector bodies by encouraging their members to view FOI requests positively when they are on the receiving end.

Better information?

FOIMan reviews the government’s response to Sir Alex Allan’s review of government record-keeping and information management.

The Cabinet Office

“Good records management is essential for good government”, said Sir Alex Allan in his report to the Cabinet Secretary on the management of digital records in December 2015 (though dated August 2015 at the bottom of the report itself). It wasn’t particularly surprising that he found that the state of records management was not good:

“almost all departments have a mass of digital data stored on shared drives that is poorly organised and indexed.”

He didn’t comment on what that said about the quality of government.

The Cabinet Office – now responsible for information management across government – has published its response this week in a report entitled Better Information for Better Government. For a start, the fact that it has taken the best part of 18 months to respond to a fairly straightforward analysis of the issues with information management within government gives a clue to the single most important reason why records are in a mess: information management is not a priority – for civil servants or their political masters.

The problems that Sir Alex identified – lack of high-level buy-in, failure to comply with record-keeping procedures, a vast legacy of poorly organised information – persist, and the new report doesn’t really offer much in terms of a way forward. It repeats Sir Alex’s analysis of record-keeping, providing a very useful summary of how the problem developed. It also agrees with Sir Alex’s conclusion that technology is the answer – though adds little to our knowledge of how technology will do this. A table lists the technologies that are most likely to be of assistance, but no conclusions are reached as to what should be done. Data analytics or eDiscovery tools are highlighted as being a potentially useful solution, before the report points out that their expense and the need for specialist users might lead Departments not to employ them.

There’s an emphasis in the report on Departments doing their own thing. It’s not hard to imagine those leading the project being fobbed off by Departments wary of Cabinet Office interference, and perhaps weary of (mostly failed) attempts to address poor records management over the years.

The report does recognise the most significant impediment to improved information management: people. There is talk of “creating the expectation of regular information management”. This is to be done by making it easier to save records by improving the technology used, but also by using “nudge” techniques:

“Departments might also consider deploying behavioural science techniques to encourage civil servants to perform information management tasks more regularly and effectively.”

The overwhelming feeling I had when reading this report was deja vu. We’ve heard many times before that records management is poor in government (and, to be fair, in most organisations outside government). We’ve also heard that technology and culture change are the answers. Reading this report I didn’t get the impression that addressing this problem is a priority, nor that leaders in government would be pressing for that to change. Without prioritisation and leadership, I’m afraid we’ll be reading another report like this in a decade’s time, and the decade after that, and…


Government digital records and archives review by Sir Alex Allan, Cabinet Office, December 2015

Better Information for Better Government, Cabinet Office, January 2017




The Fall & Rise of the Publication Scheme

FOIMan finds that the publication scheme has been much misunderstood and champions its role as a useful tool for practitioners.

It is often forgotten, but the Freedom of Information Act established two duties on public authorities. We hear all about the duty to answer requests, but very little about the other one – the duty to adopt a publication scheme.

In the past, I’ve been as dismissive of these schedules as anyone else. However, I’ve recently started to recognise that they have an increasingly important role in achieving compliance not just with FOI, but with other duties as well. What’s more, having delved into the history of the Act, I’ve discovered that there were very positive reasons for the inclusion of this duty in the legislation.

The government and stakeholders were keen to promote publication schemes at the start. Who knew, for instance, that at one point they were being lined up for a starring role in BBC soap opera The Archers?

If you’d like to know more, you can read my recent article for the Freedom of Information Journal. Details of how to subscribe to the journal can be found opposite.