FOIMan explains that it can be difficult to keep an official’s diary secret under FOI.
The Guardian yesterday reported on the outcome of an FOI request that it made to the (then) Department for Communities and Local Government (DCLG) for minister James Wharton’s diary in 2016. The diary eventually saw the light of day after the First-Tier Tribunal ordered its disclosure.
I’ve previously written here about my experience with a request for the Mayor of London’s diary way back in 2006. On that occasion, one of the Mayor’s officials had accidentally disclosed the entire Mayoral diary to a national newspaper, complete with details of the Mayor’s fitness and cosmetic routines.
My next piece for PDP’s Freedom of Information Journal, to be published next month, coincidentally covers the subject of FOI and diaries in depth. For the meantime, however, here’s a brief summary of the arguments that public authorities often make in relation to officials’ diaries and their likely success.
The information is personal data (s.40(2)): private information, such as Mr Livingstone’s hair and fitness regime, but also his home address can be redacted, justified using s.40(2). This will also be relevant for names of some people that the official meets with where it would be unfair to disclose them (e.g. junior officials, members of the public, etc.). However, it’s unlikely to be unfair to disclose meetings of MPs with Ministers, say.
The information is not held: if it is recorded in the diary, it is held – it doesn’t matter what it relates to, or when the event took place (see my previous post on the Lansley diary for more discussion of this point).
It would cost too much to disclose the diary: it is difficult to argue that s.12 (the cost limit) applies if the applicant just wants the whole diary, though it might be relevant if they are asking for certain types of extract, since this will involve locating and extracting the information. Section 14(1) – the vexatious provision – might be relevant if the applicant has asked for a diary covering a long period of time, if it can be shown that officials would have to spend a vast amount of time identifying and redacting entries from amongst the diary content.
The content relates to policy formulation/running of a ministerial office (s.35): only relevant to central government. Hard to argue that a ministerial diary does not relate to running of a ministerial office, and there will certainly be entries that relate to the formulation and development of policy, but harder to make the case that the public interest favours withholding what is usually fairly anodyne stuff. (‘meeting with officials about BREXIT’ for example would hardly be a surprising entry to find in a minister’s diary at present and doesn’t really tell the public much that could be construed as damaging.)
Disclosure would prejudice the effective conduct of public affairs/inhibit free and frank advice (s.36): in practice not very successful in decisions reached by the Commissioner and tribunals for similar reasons to s.35.
National security concerns (ss.23/24): information about a public figure’s location at particular times may well put them at risk.
Information is already published or will be published (s.21/s.22): frankly, this is public authorities’ best option. Adopting a routine schedule of publishing the diary of a prominent official (especially if they know there is interest in this record) means that s.21 (otherwise accessible) can be applied to details already published, and that s.22 (future publication) can usually be used in relation to parts of the diary yet to be made available. As is so often the case, adopting a pro-active rather than reactive approach to this information is of benefit to public authorities. Whilst it means that the bulk of a ministerial diary, say, will end up in the public domain, and that officials will have to carry out work to prepare it, it does allow them to retain a degree of control over what is published and when. It is also going to be easier for officials to prepare the diary to their own timetable than under the pressure of an FOI request deadline. Information that is legitimately exempt under other exemptions can, of course, still be redacted.
Watch out for my PDP article on diaries and FOI, which I’ll publish here in a month or so, and which goes into more detail on all this (including examples).
Practitioners and others often get confused about the way that copyright interacts with FOI. In this 
It’s about time
FOIMan highlights a change in the final version of the recently revised s.45 code that confuses rather than clarifies FOI deadlines.
Cabinet Office
Last November the Cabinet Office published a draft of a revised s.45 code of practice. I summarised the content briefly here on the FOIMan blog at the time, and later wrote a more in-depth piece for PDP’s FOI Journal, which you can read here. An even more thorough (and critical) analysis was produced by the Campaign for FOI in its response to the consultation on the draft code.
Back in July the final version of the code was published. Not a lot had changed but what had isn’t to be much welcomed. One particularly regrettable change simply adds more complexity to an already confused issue.
One matter of repeated debate between practitioners and those using the Act is the seemingly indisputable matter of when a request is received. This has caused particular confusion in relation to requests received by public authorities over a weekend or on any other non-working day.
In fact, it shouldn’t be a difficult question to resolve. The wording of the Act itself offers a clear solution. At s.10(6) it defines the ‘date of receipt’ as ‘the day on which the public authority receives the request for information’. Note that it talks of ‘the day’. Not ‘working day’, a phrase used elsewhere in s.10. So the day of receipt can be a Saturday, for example. The first working day – day one for the purposes of FOI – is the following Monday. This is the approach taken by the Information Commissioner in her guidance (see paras. 36-39).
What’s more, the draft of the revised code also followed this interpretation at paragraph 4.2:
But look what the final version says (with my emphasis in bold):
It is not clear why the approach was changed, but changed it was. The Cabinet Office’s final choice of wording potentially buys public authorities who follow it an extra day when answering FOI requests, yet appears to contradict the Commissioner’s guidance, and more importantly, the wording of the legislation itself. It will be left to the Commissioner and tribunals ultimately to decide which approach they think is correct if this is ever in dispute. I would suggest that it is most likely that they would plump for the wording of the legislation over what the Cabinet Office wishes it said.
Ultimately this is an argument over a day. And given that FOI also requires requests to be answered promptly, it is perhaps academic to a degree. But it does seem unfortunate that the Cabinet Office has chosen to sow yet more confusion over the interpretation of FOI, when it had an opportunity to provide clarity.
Get in touch if you would be interested in training on FOI, including the new code of practice. The new code is covered extensively in my forthcoming book The Freedom of Information Officer’s Handbook, which is due out in the next couple of months. Details on how to pre-order (and obtain a discount) can be found opposite.
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