What we don’t know

April 9, 2019 / / 5 comments

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 Journal – What 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.

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Are Housing Associations subject to EIR?

March 25, 2019 / / Comments Off on 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.

 

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London councils: how good are they at FOI?

March 18, 2019 / / Comments Off on 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.

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FOI and Procurement

March 8, 2019 / / Comments Off on 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.

 

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Openness by Design: less fluff please

February 8, 2019 / / Comments Off on Openness by Design: less fluff please

FOIMan comments on the ICO’s new draft FOI strategy ‘Openness by Design’.

A few weeks ago the ICO published its draft strategy for FOI and access to information over the next three years. It is still open for consultation until 8 March so if you have a view on the strategy, make sure you submit a response.

I’ve been reading it with a view to doing the same, but I thought I’d make some initial comments here.

The strategy focuses on five priorities:

  • Work in partnership to improve standards of openness, transparency and participation among public authorities in a digital age.
  • Provide excellent customer service to members of the public and public authorities and lead by example in fulfilling our statutory functions.
  • Raise awareness of access to information rights and make it even easier for the public to exercise their rights.
  • Promote the reform of access to information legislation so it remains fit for purpose.
  • Develop and sustain our international collaboration.

It’s hard to disagree with these statements of intent but that’s because they’re pretty bland – with a few tweaks they could have been copied and pasted from pretty much any corporate strategy document (the Scottish Commissioner’s strategic plan for 2016-2020 lists some very similar priorities, but they are worded more specifically). It would be good to see something more meaningful being promised. There are certainly opportunities to do more on FOI so it is not that there is nothing to say.

The more detailed exploration of these strategic goals is more enlightening. There are some hints of changes in approach (such as the collection of ‘systematic feedback’ from applicants and authorities). Strategic priorities are listed. The most striking of these are plans to develop a self-assessment toolkit; assessing the feasibility of transparency impact assessments along the same lines as Data Protection Impact Assessments; promoting digital means to enhance transparency; and building the case for changes to FOI (see my last post for more on that).

Much of this is laudable in principle but is a bit, well, er…fluffy. Do we really need the ICO to develop a ‘service charter’ to improve matters? If money is tight on the FOI side why is so much attention given to international relationships (I appreciate I’m starting to sound like the ERG here, but it’s a fair question)? Given the volume of requests that many authorities are struggling with, should the ICO really be devoting more of its scarce resources to increasing awareness amongst the public of FOI (it is part of the Commissioner’s statutory role to do that, but is it a priority over other things at present?)?

Come to that, why only ‘assess the feasibility’ of impact assessments? The Commissioner has been talking about them for almost a year so shouldn’t they have assessed the concept already? The few concrete ideas mentioned in the strategy seem to involve adding extra red tape to the FOI and openness process – whether it be impact assessments or self-assessment toolkits.

There’s lots of talk of ‘working in partnership’ with stakeholders, ‘using feedback’ and ‘develop engagement channels’. But aren’t the ICO already doing this? Some of the priorities outlined are so vague and amorphous that it is hard to know what they really mean.

One of the things that struck me when I was researching The Freedom of Information Officer’s Handbook was how little support practitioners get in doing their jobs. The ICO rightly points out that FOI’s benefits are not always recognised by public authorities, and that too much energy is spent on complaining about its cost. But my concern is that this strategy in its present form is not going to help win practitioners and their colleagues over, nor help them to improve their performance.

And there are specific and measurable things that the ICO could do to help practitioners and foster a more positive attitude to openness.

For a start, look at the Scottish Commissioner’s Office. I’m sure they’re not perfect, and they don’t have as wide a remit, nor is their constituency as large. However, with the limited resources they have they do a lot. The UK ICO could do worse than to look at the things they do:

  • collect and publish FOI stats– at the very least I’d like to see some solid commitments to enforcing the new code of practice requirements on authorities to publish these (the Commissioner talked about looking at the publication of statistics in the same speech a year ago in which she discussed impact assessments, so shouldn’t they have some meaty ideas by now?)
  • publish more guidance on the practicalities of FOI compliance (there is a mention of this in the strategy to be fair to the ICO)
  • highlight the learning from recent decisions in accessible ways, such as the Scottish ICO’s weekly round-ups and associated tweets
  • be seen to take on even the most powerful public authorities if they are not cooperating. I don’t need to bang on about certain government departments as plenty of others better placed than me to comment (as here and here) have done that. I understand that sometimes there may be more effective means than formal action to move things on, but it would be good if this strategy gave some indication of a new approach and what the ICO is prepared to do in the face of intransigence.

In short, practitioners need more concise and usable guidance; they need practical assistance; they need to be able to compare their performance to others; they need to know that if they tell their colleagues that they should comply, that they won’t look silly when government departments are let off the hook.

The ICO claim that one of their values is to be ambitious. I think they should put more emphasis on being ‘service focussed’ and in particular provide some more quality support for practitioners. Without educated and empowered practitioners, everything else in FOI falls apart. At the same time, where an authority is not playing ball, there needs to be less partnership and more confrontation. Get the basics right and everything else will follow.

The above comments may be unfair criticism of what is intended to be a high level declaration of intent. However, whether it be here or elsewhere, the ICO need to demonstrate that they are going to promote and enforce FOI compliance in a more practical and active way.

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