Valid FOI requests via Twitter?

The Information Commissioner’s Office (ICO) has issued a Decision Notice that the Metropolitan Police failed to comply with section 10 of the Freedom of Information Act 2000 (FOIA) which was made to it through Twitter.  In November 2012 the ICO issued a one page document setting out its view on whether a valid request can be made via Twitter.  In that document the ICO acknowledged that Twitter was not the most effective way to submit a FOI request; however, it went on to say that requests made via Twitter are not necessarily invalid.

The test for whether a request is a valid one or not is to be found in section 8 of the FOIA; it sets out the requirements as to what constitutes a valid request.  The Act provides:

(1) In this Act any reference to a “request for information” is a reference to such a request which—

(a) is in writing,

(b) states the name of the applicant and an address for correspondence, and

(c) describes the information requested.

(2) For the purposes of subsection (1)(a), a request is to be treated as made in writing where the text of the request—

(a) is transmitted by electronic means,

(b) is received in legible form, and

(c) is capable of being used for subsequent reference.

 Let us look at each requirement in turn:

The request is in writing

The starting point with statutory interpretation would normally be what is the literal meaning of the word?  Here Parliament has given us some assistance in interpreting what is considered to be in writing.  This does appear to be one of those ‘for the avoidance of doubt’ provisions and was most probably inserted to take account of E-mail.  There is little doubt that when passing the Act Parliament did not think about Facebook or Twitter, indeed when the Act was passed Facebook was barely a thing and Twitter hadn’t been invented.  However, as technology changes it is necessary for the law to move with it – whether it is capable of doing so without amendment by Parliament is a different matter!

Is a tweet transmitted by electronic means?

It is certainly sent and received by electronic means, but what does ‘transmitted’ mean?  According to the literal rule of statutory interpretation we must look at the ordinary meaning of the word transmitted.  Let’s turn to the online Oxford English dictionary and its entry for transmit.  Only the first two definitions are relevant here.  To transmit something is to “cause (something) to pass on from one person or place to another” or “broadcast or send out (an electrical signal or a radio or television programme).”  So, is a tweet transmitted by electronic means?  Sending a tweet is certainly causing something (the content of the tweet) to pass from one person (the sender) to the other (the recipient).  It might also be said that it is being sent from one place (the sender’s computer) to another (the recipient’s computer).  It could be said that sending a tweet is not too dissimilar to sending an E-mail.  Is it by electronic means?  I think that it is clear that it is, for obvious reasons such as without electronics there wouldn’t be the hardware to enable a tweet to be sent.  Is a tweet being broadcast or sent out?  The dictionary gives an example of an electronic signal or a radio/television programme.  What is a tweet?  It is essentially a series of digits which put together displays on the screen as an image – it might be said to be similar to a TV programme.  Whether it meets the second definition or not, I do think that it is safe to say it meets the first.

Is it received in a legible form? 

Well it’s certainly not going to be illegible because it is typeface rather than handwritten.  One might be of the view that this was perhaps to cover a handwritten note sent by fax and so probably isn’t relevant here – I think we can tick this box as well.

Is it capable of being used for subsequent reference?

This is where things get slightly more difficult! The Act doesn’t say who has to be capable of referencing it subsequently.  Obviously, the Public Authority will have to be able to reference it subsequently in order to check that it is complying with the request made.  Furthermore, the requester has to be able to subsequently reference it should they need to make a complaint to the ICO – the ICO will usually want to see the request and where possible evidence of the request having been sent.  However it does not seem to be as straight forward as that.

If I tweet a public authority’s official account, my tweets are not protected and I don’t do anything else then it is possible for both the public authority and I to subsequently reference the tweet.  On the face of it, this would clearly meet the requirement.  Whether or not they know it is there is probably an irrelevant question in the same way someone missing a request in their E-mail inbox doesn’t matter.

The issue becomes slightly more complicated if I protect my tweets later and the public authority is not following me – then only I can subsequently reference the tweet – or if I delete my tweet altogether.  In the first of these two situations (protecting my tweets where the authority is not following me) the tweet is clearly capable of being referenced subsequently, but only by me.   Does this meet the requirements of the Act?  Well I would suggest that in order to establish that we need to understand why Parliament included it.  What situations were Parliament envisaging when they enacted this part of the Act?  The explanatory notes do not provide any illumination on that question.  I don’t have time to, at this stage, wade through the many lines of debate in Handsard on the Bill in the hope that there is an explanation here.  I can’t immediately think of a situation which Parliament would have had in its mind when enacting this section.  On that basis I don’t think that really takes us any further forward.

The question that immediately springs to mind is for how long does the request have to be capable of being subsequently referenced by the authority?  If I protect my tweets on the 20th working day following sending the request is that different to if I protect them immediately following the sending of the request?  After all, by the 20th working day the authority should be in a position to respond, or at least have gathered all of the information in scope and simply be conducting the public interest balancing exercise.  I’d suggest there is a difference.  Quite where the ‘cut off is’ would most probably be a question of looking at the circumstances in each individual case – not an ideal situation though.

What about if I delete the tweet?  That might cause problems when making an application to the Commissioner – although taking a screenshot of the tweet prior to deleting it might cure that.  Again is it dependent upon when I delete the tweet – e.g. on the 20th working day or immediately after it was sent?

These are difficult questions and ones that don’t have clear answers.  However, in at least one case (the first – where the tweet was and remains public after it is sent and is not at any stage deleted or becomes inaccessible to the public authority by way of an individual’s tweets become protected) a tweet appears to meet all of the requirements set out in section 8(2) of the Act.

However, as mentioned earlier section 8(2) does seem to be more of a ‘for the avoidance of doubt’ subsection – a request can be in writing in other ways and it would appear that this has most probably been included so as to ensure that public authority’s treat requests received by E-mail as being valid requests – it would not appear to be the ‘be all and end all’ of the matter.

At the end of the day, what does ‘in writing’ mean? I don’t think we could realistically argue that a tweet is not ‘in writing’ even if it does not meet all of those tests – after all, a letter sent by mail doesn’t meet the requirements of section 8(2) and nobody would sensibly argue or find that such a request is not ‘in writing’ and so section 8(2) is clearly not the complete definition of what is meant by ‘in writing’ within section 8(1).

The request states the name of the applicant and an address for correspondence

Assuming that we have a request made via twitter that meets the definition of being ‘in writing’ the next requirement is that the request must state the name of the applicant and an address for correspondence.  If we accept that a public authority’s twitter accounts is an address capable of having correspondence (not necessarily just a FOI request, but any type of correspondence) sent to it, then equally an individual’s twitter account must also be an address for correspondence.  If an individual does not need to, for example, include within the body of their E-mail their E-mail address (i.e. it appearing in the ‘From’ field is sufficient) then I don’t see why someone would have to include their own twitter handle in their request – it is there for the authority to see in its mentions.

However, the name issue is more problematic.  It is the view of the Commissioner (and I believe that it is the correct one) that the name of the applicant must be their real name – lots of people don’t use their real name (or indeed any of the acceptable forms thereof for the purposes of FOI) in their twitter profile; so there we could have a problem.  If it’s not on their profile, then it’s not a valid request – even if we’ve managed to overcome the ‘in writing’ issue.

Describes the information requested

The final requirement is that the request describes the information requested.  That has to be in enough detail to enable the authority to identify what is sought.  That could be difficult in 140 characters.  However with services such as twitlonger it can be done.  It could also be possible to send the request over a number of tweets (as was done in the Metropolitan Police case linked to at the outset of this blog post).  I don’t see that as being any different to sending it in a number of letters or in a number of separate E-mails.  Indeed, when an authority seeks clarification because it is unable to identify what information is being requested it is looking at a request over at least two pieces of separate correspondence, if not more, to create a valid request.

Conclusion

The ICO does not say in its guidance that all requests made via twitter will be valid, only that a request made via Twitter may not necessarily be invalid.  I would certainly have to agree: it is possible to make a valid request by twitter.  Is it a good idea?  I would say that it’s not, and that it is probably best to stick to more conventional methods such as letter or E-mail.

Costs in the FTT: Snee v Information Commissioner & Leeds City Council

Under the Freedom of Information Act 2000 a decision by the Information Commissioner is capable of being appealed to the First Tier Tribunal (Information Rights) by either the public authority involved or the Complainant.  There is no cost in brining an appeal and parties are generally responsible for paying any legal costs that they incur (public authorities will often be represented as will the Commissioner; sometimes by Counsel).  Under The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 the Tribunal has, on the application of a party, the power to award costs.  It can do so where the appellant has acted unreasonably in brining or pursuing the appeal.

Earlier this month the First Tier Tribunal issued a decision, Mark Snee v the Information Commissioner and Leeds City Council, in respect of an application for costs against an Appellant by Leeds City Council.  The Council were seeking their £20,000 costs in full, having  applied to be joined to the appeal and having been represented by Queens Counsel.  The Appellant in the case, Mr Snee, was represented by Counsel.  The Tribunal’s decision contains some useful information with regards to heir approach to such applications.

Mr Snee’s requests had been refused by the Council on the grounds that they were vexatious (section 14(1) of the Freedom of Information Act 2000).  The Commissioner and the Tribunal agreed that they were vexatious, and it was at that stage the City Council applied under Rule 10(1)(b) of the Tribunal Rules for costs.

One of the Council’s arguments, which was not accepted by the Tribunal, would have had a fundamental effect upon an individual’s right to appeal to the Tribunal.  It was argued that, because Mr Snee’s requests were vexatious he had acted unreasonably in bringing the case to the Tribunal.  The Tribunal did not agree.  It pointed out that the Commissioner had the opportunity to refuse to issue a decision notice where he found the complaint to be frivolous or vexatious, and the Tribunal had the power to Strike out an appeal upon the application of a party where it has no hope of succeeding.  The Tribunal stated that it was right to remember these protections against vexatious or hopeless appeals.  Automatically making appeals against a decision that requests are vexatious subject to the costs provisions where the appeal fails would have a significant impact upon the appeal rights of an individual.  The Tribunal considered that “it must be possible, depending on the circumstances, for the maker of a request regarded by everyone else as vexatious, to defend his or her position on that point without automatically being treated under the costs Rules as behaving unreasonably.”  In other words, it must be possible for an individual who makes a request which is considered to be vexatious to defend their position in the Tribunal.

In the Tribunal individuals who are appealing against the Commissioner’s decision in respect of their FOI request will often not have the benefit of legal advice.  Thus, what might appear to a fully trained lawyer to be “futile or wrongheaded”, the Tribunal considered that “it would be wrong to assume that the challenge is inevitably an unreasonable one for the citizen to bring.”  The comments had a much more general application than that and equally well apply to a range of other Tribunals within the First Tier Tribunal structure where Legal Aid is not available, or is available only in very limited circumstances.

It seems, from this decision, that the chances of an appellant facing a costs order for an Appeal against a decision of the Information Commissioner are unlikely; although it remains a possibility that costs will be awarded in exceptional circumstances; quite what those circumstances will be remains to be seen.  It seems more likely that an unreasonable appeal will be struck out during the early case management stages than for it to progress to a full hearing, thus preventing the generation of significant costs for all involved.

Princes, letters and Freedom of Information

Yesterday the Court of Appeal issued its judgment in the continuing saga that is the bid by Guardian Journalist Rob Evans to obtain the information contained in a variety of letters sent by HRH Prince Charles, the Prince of Wales to a number of departments of Central Government between 1 September 2004 and 1 April 2005.

The saga has been a long one in which the Information Commissioner agreed with the Government.  However, the Upper Tribunal disagreed and ordered a number of the letters to be released.  The Upper Tribunal found that the letters fell into two categories: those which were about the Prince of Wales preparing to become Monarch and those which were him advocating in respect of causes which were close to him.  It was this latter category of letters that the Upper Tribunal found after determining that they were not covered by the constitutional convention which provides that the heir to the throne be educated in Government business in order to prepare him (or her) for becoming King (or Queen) and that correspondence pertaining to that be confidential and not be released.

After the Upper Tribunal issued its decision the Attorney General issued a certificate under section 53 of the Freedom of Information Act 2000 (FOIA) which sets aside the decision of the Upper Tribunal.  Mr Evans judicially reviewed that decision and the Administrative Court upheld the certificate.  Mr Evans then appealed to the Court of Appeal which quashed the Attorney General’s certificate.

There are two separate issues to the certificate.  The first one that I shall deal with here, is the EU dimension to the case.  Some of the information contained within the letters amounts to Environmental Information which falls to be governed by the Environmental Information Regulations 2004 (EIRs).  Those Regulations exists to transpose into domestic law a EU Directive on access to Environmental Information which in turn exists to bring into EU law the provisions of the Aarhus Convention.  Therefore the principles of EU law apply to the Environmental Information and the domestic law cannot be incompatible with it.  In its judgment the Court of Appeal held that the existence of the veto was incompatible with EU law.  This effectively means that the veto contained in section 53 of the FOIA cannot be used in respect of information which is environmental in nature (as defined by the Directive and the Regulations).

The Directive which the EIRs transpose into domestic law provide that there should be an independent and impartial tribunal to decide upon whether a  public authority has complied with its obligations, and that the decision of this independent and impartial body must be final. The EIRs have, by virtue of the application of the FOIA, an extensive appeals structure which begins with a complaint to the Information Commissioner and subsequent appeal to a specialist tribunal followed thereafter by appeals on points of law potentially all the way to the Supreme Court.  While there is no single independent or impartial tribunal whose decision becomes binding, at some stage a decision will be made by an independent or impartial tribunal which is final and binding upon the public authority.  However, by virtue of section 53 of the Freedom of Information Act, it can be side-stepped by someone within the Executive (in this case the Attorney General).  The Divisional court, in its decision, held that the existence of the right to judicially review the decision to issue a certificate under section 53 of the FOIA.  However, the Court of Appeal disagreed.  The Master of the Rolls said at paragraph 55:

A judicial review of the certificate of an accountable person is substantively different from a review by a court or other independent body of the acts or omissions of “the public body concerned”. The focus of the two reviews is different.

The Court of the Appeal was of the view that as judicial review was focussed on the act of the person who issued the certificate, rather than on the public authority’s compliance with the EIRs, it was in breach of the requirements of European law; therefore it was unlawful.

The Court of Appeal also considered the Attorney General’s use of the ‘veto’ under section 53 in respect of the information contained in the letters which was covered by the Freedom of Information Act.  The Court held that in order for a section under section 53 to be valid, it had to be based on reasonable grounds.  The Court of Appeal decided that for the grounds to be reasonable there would have to be something more than simply disagreeing with the decision.  The Master of the Rolls gave some examples of what ‘something more’ might mean in paragraph 38 of the Court of Appeal’s decision:

a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.

Such an interpretation of the law clearly significantly affects the power of ministerial veto and its effectiveness.  It is also clearly against the intention of Parliament when it passed the Freedom of Information Act.  The veto was placed in the Act by the Labour Government that passed it as a central element of the Act – something to act as backstop to protect central government from inappropriate releases.  It was intended to place central Government in the position of being the final arbiter of what central government information is released under FOI.  It is a constitutional aberration as described by both the Divisional Court and the Court of Appeal, but that is what Parliament determined when it passed the law with section 53 in it.

The Court of Appeal quashed the Attorney General’s certificate which makes the Upper Tribunal’s decision requiring release of certain letters effective again.  It held that his certificate was unlawful in terms of all of the information it was intended to cover.  This is certainly a key judgment and is very interesting.  It engages with some important issues in respect of the ministerial veto, and it is a Court of Appeal decision.  However, as much as I agree in principle with the Court of Appeals decision, I think in terms of the legal matters I suspect that it is vulnerable to being overturned, at least in part, on appeal.

I am of the view that the Court of Appeal’s decision should be treated with a bit of caution.  In respect of the application of the veto  on Environmental Information, the Court of Appeal’s decision appears to be entirely correct.  The existence of the veto does not sit well with the requirements of the Directive and is most probably unlawful in terms of European law.  However, I suspect that the Court of Appeal has fallen into error in its interpretation of section 53 insofar as it relates to information covered by the Freedom of Information Act.  The veto was clearly intended to be used in the way the Attorney General used it when passed by Parliament.  It was Parliament’s clear will and it would be inappropriate to read things into the legislation that as so clearly against the will of Parliament.

The Attorney General has been given permission to appeal the Court of Appeal’s decision to the Supreme Court and it will be interesting to see what the Supreme Court has to say.  I suspect there will be a great deal of discussion around the meaning of the words ‘reasonable opinion’ in section 53.

Pro-active disclosure and FOI

It was today reported on the BBC News website that the Chief Executive of NHS Dumfries and Galloway has come out and said that his Board’s FOI initiative had been a complete failure.  NHS Dumfries and Galloway had, in a bid to cut the number of Freedom of Information requests they received, pro-actively published information and statistics.  During the period there had been a 25% increase in the number of requests received.

Before addressing the substantive issue, I will address a couple of questions that I was left with after reading the article.  Firstly, I was left wondering how the Board had decided what information and statistics they were going to publish (it’s all very well publishing information and statistics, but if it’s not the information and statistics that people are interested in it’s not really going to ever have the desired effect).  I was also left wondering how many of the requests received during that period were for information that had already been published.  That is also relevant because if there was a large number of requests for already published information that would indicate a problem with the requesters and not the Board.

Let me take the latter of the two questions first.  FOI is not, and should never be seen as, a way of getting public authorities to do your research for you.  Indeed, there is an exemption with both the Scottish and UK legislation that exempts information that is otherwise available to the applicant.  It is incumbent upon individuals to look for the information they want before putting in their request.  If they did that they might save themselves some time (public authorities essentially have a month to respond to your request) and would also save the taxpayer money.  If a large number of requests received in period of observation were for information already published by the Board then the number of requests could be reduced if people were (a) more aware that the information was pro-actively published and (b) more responsible in their use of FOI.

On the first question that the article left me with, if you’re not publishing the information that people want then people are still going to write to you and request it.  What analysis was undertaken by the Board before deciding what to pro-actively publish and what not to pro-actively publish?   I don’t think I need to say any more on that point here.

I think that public authorities who are seeking to pro-actively publish information to reduce the burden of FOI on them must consider a few things.  Firstly, what is the point of FOI?  Simply, put FOI is about putting the citizen in charge of what information they receive.  Of course, that right is qualified and certain information can be withheld by law.  However, it is no longer the case that the citizen only ever receives the information that public authorities want to tell them.  Unless you are completely open there is always the chance that information you decide not to pro-actively publish is the information that someone would like and that will result in an FOI request for that information.  Secondly, I think that they need to address their views towards openness.  Public authorities should be pro-actively publishing information because they value being open and allowing the public to properly assess what they are doing; not because it might save some money on the balance sheet.

I do not think it unreasonable for public authority’s to assume that by pro-actively publishing information that they will reduce the number of FOI requests that they receive.  It follows that if requesters search for the information before requesting it, they will locate it without the need to request information and as such will not make an FOI request for it.  However, there is the possibility that releasing information will generate further FOI requests.  Releasing information might generate requests for other connected information that is not published, or for more detailed information than is published.  For example, publishing the agenda and/or minutes of a meeting might generate requests for information in documents referred to within the meeting minutes.  Public authorities could take a decision at the time as to whether they are going to pro-actively publish those documents or whether the potential saving by pro-actively publishing them doesn’t negate the cost of considering them for release on the basis that they might be requested in an FOI request.  It is a judgement call for the public authority in question.

Lynn Wyeth (@LynnFOI), an FOI Officer, on Twitter made this point in a tweet that she tweeted.  Her own experience was that pro-active publication generates more follow-on requests.  However, she also made an interesting point when she tweeted  asking “How do you know how many FOI requests you haven’t received, if you haven’t received them?”  There is of course no way for NHS Dumfries and Galloway to know how many requests were prevented because of their pro-active disclosures.  The simple fact is that it cannot.  It can look at the information it does have though and question what it tells them.  For example, if the requests it did receive included a number of requests for information which was already published, it could consider how it could better inform people of what information it is pro-actively publishing.  You will never eliminate requests for information that is already available because you will never eliminate lazy requesters, or those without the technical ability to locate information which isn’t obviously available.

Tim Turner (@tim2040) tweeted that pro-active publication should be done “in the public interest with no expectation of a knock-on effect for FOI”.  I tend to agree with him, but as already stated I don’t think it unreasonable for the assumption to be considered.  Pro-active publication is a good thing, but it should be seen as an addition to FOI and not a replacement for it.  FOI is an important right because it allows citizens to request the information that they want, not just to receive what an authority wants them to see.   Pro-active disclosure is only one aspect of transparency and accountability; that fact should not be lost sight of.

Your Right to Know: International Right to Know Day 2013

ImageToday (28 September) is International Right to Know Day, it is a day which highlights your right to know and obtain official information.

In the UK the Freedom of Information Act 2000, Freedom of Information (Scotland) Act 2002, the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 give people anywhere in the world the right to be given information held by public authorities in the UK, subject to certain exemptions.

It is possible to request information from the UK and devolved Governments, from the police, local councils, the NHS, the prison authorities, the prosecution authorities, the court services and a whole range of other public bodies.  Not only is it possible to request it, but you have the right to be given the information where it is not exempt from disclosure by one of the specified exemptions (or in the case of Environmental Information, exceptions) in the legislative provisions.

Even if an authority states that information is exempt, you have the right to ask them to think again and if they still refuse to give you the information you have the right to ask the relevant Information Commissioner to investigate and decide whether the public authority was right.

The Right to Know is an important right, it helps to hold those who make decisions and spend public money accountable for the decisions that they make and the money that they spend.  It can aid the public’s understanding of the decision making process and can also help public authorities to see where they could be doing things better.

However, as it is an important right it must be used properly.  Using it to annoy or upset individuals in a public authority, to carry on a personal dispute with a public authority or using it with no real purpose behind receiving the information isn’t helpful.  It costs money to process a request and it does take public authority staff away from delivering their core function, which will have an impact on the public authority.  Inappropriate use of the Act could lead to important information access rights being lost or reduced and that would be bad for everyone.

Over the years the way in which public services have been delivered is having an impact on the ability of the public to properly hold those responsible for making decisions and spending public money to account.  This has resulted in an effective reduction in the information access rights that people have.

Freedom of Information is important.  However, Government’s should be a lot more proactive in their release of information.  There are many benefits to this, not least if it’s already in the public domain somebody doesn’t have to request it through information access rights.

I’m using International Right to Know day to write to my elected representatives reminding them of the importance of FOI, and to ask them to ensure that they press the Government to extend and protect FOI as well as pressing the Government to be more open and pro-active with information in the first place.

Useful Resources:
UK Information Commissioner – http://www.ico.org.uk
Scottish Information Commissioner – http://www.itspublicknowledge.info
WhatDoTheyKnow – http://www.whatdotheyknow.com
Freedom of Information Act 2000 – http://www.legislation.gov.uk/ukpga/2000/36/contents
Environmental Information Regulations 2004 – http://www.legislation.gov.uk/uksi/2004/3391/contents/made
Freedom of Information (Scotland) Act 2002 – http://www.legislation.gov.uk/asp/2002/13/contents
Environmental Information (Scotland) Regulations 2004 – http://www.legislation.gov.uk/ssi/2004/520/contents/made

Public authority contact details and FOI

This is an FOI decision from the Information Commissioner that I have planned to blog about for some time, but have now only just got round to blogging about it.  On 11 March 2013 the ICO issued decision notice FS50468600 which involved the Department for Work and Pensions (DWP).  The content of the decision notice is not all that important until we turn to paragraphs 32-36, which are headed up as “other matters”.

In particular paragraph 35 is of note in which it states that his office experienced difficulty in actually speaking to those who were involved in the request at the DWP’s side of things.  It described the DWP’s practice of not providing telephone numbers or contact details within its responses and how this makes it very difficult for the appropriate contact to be located within the organisation.  The public authority advised the Commissioner that it did not include these details so as not to breach the privacy of the non-senior staff involved; it described the staff in question as not being in public-facing roles.

In Paragraph 36 of the decision notice the Commissioner states quite clearly that he does not agree with this approach.  The decision notice states that “if such staff are responding to requests made under the FOIA then he considers this to be a public-facing role which is unlikely to attract an expectation of privacy” (Paragraph 36).

The DWP are by no means the only public authority which has adopted similar processes in respect of FOI requests.  I can remember one time trying to get hold of a central Government department (I can’t remember exactly which one, but I have a feeling it was either the Home Office or a connected public authority) to discuss a response that had been issued by them (something that merely wasn’t very clear and, as it later transpired wasn’t in need of an internal review). However, there was no contact details provided for the individual.  I was informed that the FOI team were not public-facing and they wouldn’t speak to members of the public over the telephone.

It was very frustrating and actually resulted in a higher cost to the public authority in my case.  There was just one thing that I wasn’t clear about and I’m sure that had I been able to have a quick telephone conversation with the person who issued the decision then there would have been no need for them to conduct an internal review.  However, the Authority’s attitude and processes meant my only option to get the clarification was to request an internal review.  This will have then required a senior member of staff within the authority to review the entire handling of the request and issue a response to me; far more expensive than 5 minutes on the phone explaining something to the applicant.

Not publishing contact details for those responsible for FOI within the organisation also makes seeking advice and assistance from the public authority almost impossible.  My reading of the Act suggests to me that advice and assistance is not only something to be provided in a refusal notice, but something that should be available to prospective applicants.  I know that I’ve certainly phoned up a public authority and had a chat with them about a request before making it; as a consequence I have been able to frame my request in a way that has made it a much more efficient process for the public authority (and thereby reducing the cost to the taxpayer).  The FOI Officer, knowing the structure of their organisation and how information is generally held, was able to advise as to what information they were likely to hold and how it was likely to be held.

I tend to agree with the commissioner that anyone sending a response out to a FOI request is clearly public-facing; it might be that a particular role was not public facing pre-FOI, but in these post-FOI days anyone could, in theory, be a public-facing member of an authority’s staff.  It should be easy for applicants to contact public authorities, not least because the public authority is obliged to provide advice and assistance, but it can just save public authorities money.  It can help ensure more focused FOIs that are easier to deal with and can prevent expensive internal review requests (or perhaps even more expensive ICO investigations).

Hopefully the ICO’s criticisms of this approach in this decision notice will feed their way round any other public authorities who still adopt a practice of not giving out contact details for someone able to provide advice and assistance.

The importance of FOI training in public authorities

A decision notice published by the Scottish Information Commissioner yesterday (7 March 2013) highlights why it is important that all staff within public authorities have at least a basic working knowledge of the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Decision 032/2013 concerned an information request made to NHS Fife.  The applicant made an information request to NHS Fife on 2 August 2012 to which NHS Fife responded on 5 October 2012.  This represents a significant delay on the 20 working days permitted by section 10(1) of the Freedom of Information (Scotland) Act 2002.  The decision notice does not give any reason as to why it took NHS Fife so long to respond to the information request.

On 18 October 2012 the applicant wrote to NHS Fife requesting a review of their decision.  The request for review was sent directly to a particular member of staff with whom the applicant had been having protracted correspondence.  Unfortunately for NHS Fife that member of staff did not “recognise the significance” of the request for review under the Freedom of Information (Scotland) Act 2002 and consequentially did not take the action required to ensure that NHS Fife was able to respond within the timeframe permitted by section 21(1) of the Act (which is 20 working days).

NHS Fife’s explanation that the member of staff who received the request did not recognise the significance of a request for review under FOISA would suggest that something has went wrong procedurally and most probably around staff training.  All staff within a public authority should be able to spot information requests and requests for review.  Having identified an information request of request for review all staff should know what to do with such correspondence.  When staff are not able to perform these tasks it can lead to problems such as in this case where a requirement for review went unanswered beyond the statutory deadline.  As a consequence an application was made to the Commissioner and a decision notice has been issued.

This decision notice should serve as a reminder as to how important that all staff (whether they routinely deal with information requests or not) should have at least a basic knowledge of information access rights to ensure that public authorities comply with their obligations under the various access regimes.

‘Thinking time’ and Freedom of Information

Yesterday a debate was held in Westminster Hall on the Government’s response to the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000.  The debate was very poorly attended by MPs; but those few who did ensured a good quality debate was had.

Of concern though was the government’s response; and in particular its continued desire to see how it could include “thinking time” into the cost calculations under section 12 of the Act.  Most are agreed that including such time into the cost calculations would significantly damage the Freedom of Information Act.  Including such time into the cost calculations would not help reduce the burden of “frivolous” or “vexatious requests” as they are most likely to be simple requests which require little time.  The requests they would affect are the ones where the public interest has to be considered; and in particular, those requests where the public interest is finely balanced.

We would begin to see more requests being refused simply because the complexity of establishing exactly where the public interest lies will take too long; that will undoubtedly mean information which could expose wrongdoing or corruption in public office is not released.  That would fundamentally undermine the Act.

Another example of requests that might be covered are ones which produce a significant volume of information.  Imagine another MPs expenses type request which produces volumes of recorded information.  The information could easily be retrieved within existing cost limits; but when thinking time becomes included in the request such a request would be refused (not necessarily because it’s difficult to establish where the public interest lies, but because each piece of recorded information has to be considered for disclosure).

Allowing thinking time will also create a disparity between public authorities.  It’s a subjective thing that is not easy to consider objectively. One FOI officer might be able to read the same document much more quickly than another FOI officer.

The introduction of “thinking time” would fundamentally undermine and significantly damage the FOIA and must be rigorously opposed by Parliament to ensure that the record of the FOIA as a strong piece of legislation is not destroyed.

In the words of Iain Gray MSP in a recent debate on FOI in the Scottish Parliament; “No Government likes FOI. FOI is always inconvenient, but it is the right thing.”  The UK Government may not like FOI, but it is the right thing to do and they must not be allowed to weaken the Act.

Government responds to Justice Select Committee on FOIA

Almost one week ago the UK Government finally issued its response to the Justice Committees detailed and quite frankly excellent post-legislative scrutiny of the Freedom of Information Act 2000.  I am now finally getting round to putting my thoughts on the Government’s response to the Justice Committees report (although I have already written to my MP to highlight some of my major concerns with the Government’s response).

I don’t wish to give the impression that the Government’s response is a complete disaster for Freedom of Information; there are many good and bad things about their response.  I will start first with things that (in my view) are worth highlighting as “good” things from the Government’s response before turning to the (in my view) “bad” things.

To be celebrated is the clear indication from the Government that they do not consider their own “open government” agenda as being a replacement for FOI.  The Government’s response described the two agendas as “complimentary” to one another.  This is a clear recognition by the Government that Freedom of Information plays an important role in our democracy.  The Justice Committee said in their report that the FOIA “has been a significant enhancement of our democracy”.

Another big thing to celebrate from the Government’s response is that FOI requests are to remain free.  There was a push by a number of public authorities during the evidence stages of the post-legislative scrutiny (which was evident before the post-legislative scrutiny and after) for there to be charges for making information requests.  The Government isn’t convinced though and has ruled out charging for requests saying:

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act.

This is welcome news because we only have to look to Ireland to see what damage charging for requests can do to Freedom of Information.

One final thing from the Government’s response I personally think is worth celebrating is a change to the rules on prosecuting authorities under s.77 of the Act.  Currently a prosecution under s.77 has to be launched within 6 months from the date of the offence.  It can easily be more than 6 months since the offence before the Information Commissioner’s Office begins to investigate a complaint under s.50 (a likely time for a s.77 offence to be discovered).  The Government has rejected the Justice Committee’s proposals to make it an “either way offence” (meaning it could be tried in the Crown Court); however, it has indicated that it will change the Act so that the six months to bring a prosecution starts when the offence is discovered rather than from when it is committed.  This means that if the ICO discovers s.77 offences it can now prosecute them.  The Information Commissioner did say in evidence to the Justice Committee that his office had seen evidence of destruction of information after a request had been made (an offence under s.77) but they had simply not been able to get them to court in time.

Having looked at the things worth celebrating from the Government’s response; it is time to turn to the things that are a cause for concern.

Some people have placed the first thing that I wish to address in this section as something to celebrate.  However, I do not share that view and I will explain why I consider it to be a bad thing.  In their report the Justice Committee suggested making the timeframe for internal reviews statutory.  This is the position in Scotland under the Freedom of Information (Scotland) Act 2002 (s.21(1) provides that a review must be carried out promptly and no later than the 20th working day following receipt).  The Government has decided not to implement this recommendation and has instead suggested providing guidance in the s.45 Code of Practice on the conduct of internal reviews.  There is currently advice on timescales for the carrying out of reviews; that is provided by the Information Commissioner’s Office in ‘Good Practice Guide (No. 5)’ which sets out a timescale similar to that found within s.10(1) of the FOIA for initially responding to a request.

The problem is that a great number of authorities seem to frequently take considerably longer to conduct reviews than the time set out in the Commissioner’s Guidance.  Some of these authorities are central government departments; which doesn’t hold out much hope for compliance with guidance in the s.45 Code of Practice.  I can’t see how providing guidance to deal with a failure to apply guidance as to good practice will address the problem.  It seems to me that building in a statutory framework on internal reviews is what is needed here (as is tightening up the public interest extension at s.10(3) of the Act).  It is important to note though that there are a great many public authorities who conduct internal reviews diligently and don’t kick them into the long-grass.  It is also important to note that the Government is of the view that reviews should be carried out quickly.  I don’t see why they can’t put that view into statute rather than a Code of Practice.

Another concern is the Government’s indication that it will continue to consider what else could be included in the cost caulcations.  For those with a limited knowledge of FOI; there exists the “appropriate limit” which if a request exceed the public authority can refuse to comply with the request.  The current appropriate limit is £600 (for central government) or £450 (for other authorities).  Furthermore, if the time taken to comply with the request exceeds 24 hours work (for central government) or 18 hours work (all other authorities) then the public authority can refuse to comply with the request.  In respect of time taken to deal with the request there are certain activities which cannot be included in the calculation.  The time taken to consider whether the information can be disclosed or the time taken to redact exempt information currently cannot be included.  The Government is considering whether both of these activities could be included in these calculations.

There is a major problem here in that it is hard to objectively judge reading and redacting time.  One FOI officer in one authority might take longer to read and consider information than another FOI officer in another authority considering the same information.  It becomes about the ability of individual FOI officers.  Moreover, it risks meaning that large volumes of information might be refused simply because it will take a long time to consider the information.  It would also mean that cases where the public interest is finely balanced could be refused because it will take too long.  This could conceivably prevent important information exposing wrongdoing in a public authority from being revealed.  It would, in my view, fundamentally undermine the purposes of the FOIA.  The Government is also considering slightly reducing the current 24/18 hours limits.

Another issue, which I hadn’t initially picked out, is the Government’s indication that multiple requests by one person on unrelated issues to a public authority could be grouped together.  Currently, making multiple requests on the same (or substantially similar issues) can be grouped together for the purposes of the repeated/vexatious exemption.  Permitting the grouping together of unrelated requests by a named individual or group will likely harm journalists.  One of the fundamentals of the FOIA is that it is supposed to be “applicant blind” there is no way that such a change could be implemented which wouldn’t harm journalists without giving consideration to the identity of the applicant.  Imagine the effect on large organisations like the BBC or large national newspapers that might make a large number of requests on different issues to public authorities.  As a result of this change a request which could uncover wrongdoing could be refused because they’ve exceeded their “quota” of FOI requests to the public authority.

Another concerning issues is the Government’s apparent intention to extend the use of the so called “ministerial veto”.  This would be concerning if the veto was to be used widely an in circumstances that are not exceptional.  The point of the ICO and appeals from there to tribunals and the courts is to allow independent people to consider the request and information objectively.  It would undermine the purposes of FOI if the Government were regularly to become the final arbiter of what information they hold gets released.  We’ve already seen an increased use of the veto since the 2010 election; most recently to hide the content of letters Prince Charles had sent to a number of Government departments.

On the whole; there are some excellent things from the Government’s response that will strengthen FOI.  However, there are also things which are of concern and could weaken the FOI regime and should be opposed if the Government tries to introduce them.  No doubt there will be further blog posts on FOI to come as both the UK and Scottish Government’s go about amending the respective FOI legislation.

If you’ve read the blog post to the end then thanks and congratulations!  I could have said much more, but didn’t want to write a full-blown essay on the Government’s response.  The Government’s response can be read here.

Release of Prince Charles letters blocked by Attorney General

The Attorney General, The Rt. Hon. Dominic Greive QC MP, has today signed a certificate under Section 53 of the Freedom of Information Act 2000 which overturns the decision of the Upper Tribunal (Administrative Appeals Chamber) in Evans v The Information Commissioner and Seven Government Departments ([2012] UKUT 313).

Section 53

Section 53 has become known as the “ministerial veto” and has been used by the current Government the most since the Freedom of Information Act 2000 (FOIA) came into force.  The veto gives an “accountable person” the right to issue a certificate in relation to any decision of the Information Commissioner, the tribunals or courts regarding an information request made pursuant to the Freedom of Information Act 2000 which has the effect of overturning the decision of the Commissioner, tribunal or court.

In essence it places a public authority given powers to make us of s.53 as the final arbiter in a dispute over whether they were correct to withhold information requested under the FOIA.  It was a key condition placed on the legislation by Jack Straw, the Secretary of State for Justice when the FOIA went through Parliament.  The Commissioner, Tribunals and Courts are there to act as independent arbiters who can look at the case with “fresh eyes” and perhaps more objectively than the public authority or applicant can.  However, at the end of the day the Government remains the ultimate controller of what information it holds it releases.

The Evans requests

The requests in question were made by Rob Evans, a journalist at the Guardian newspaper, in 2005.  They sought the content of correspondence between HRH Prince Charles, the Prince of Wales, and the Ministers of seven departments of central government.  Those departments were:  Department for Business, Innovation and Skills; Department of Health; Department for Children, Schools and Families (now the Department for Education); Department for Environment, Food and Rural Affairs; Department for Culture, Media and Sport; Northern Ireland Office and the Cabinet Office.

There exists, by way of constitutional convention, a right for the heir to the throne to be educated in Government business in order to prepare him (or her) for becoming King (or Queen).  The convention also provides that such correspondence is confidential and its existence or content should not be disclosed.

Upper Tribunal Decision

The Information Commissioner and First-Tier Tribunal sided with the Government and held that the public interest in maintaining the exemption (ss.37, 40, 41 of the FOIA and Regulations 12(5)(f) and 13 of the Environmental Information Regulations 2004).  However, the Upper Tribunal disagreed and in a 65-page judgment outlined the reasons why it decided that most of the withheld information should be released.

It could be argued that there is no public interest in the constitutional convention which provides a right for the heir to the throne to be educated in Government business and for those  pieces of correspondence to be confidential.  That argument is a simple one of democracy given that the Monarch is unelected and in a democracy unelected officials should really not be in a position to influence the way in which a democratically elected Government conducts its business.  This is an argument that I am minded to agree with, but I won’t set out my reasons in full for this here as it really does stray beyond the aim of this post.  However, I shall return to the influencing Government point later.

The Upper Tribunal has accepted the constitutional convention and applied it in this case.  Some of the information withheld properly, it decided, fell within the scope of that constitutional convention.  However, much of the correspondence that was withheld was not, in the Upper Tribunal’s mind, covered by the convention.  That correspondence was lobbying by HRH The Prince of Wales, sometimes on behalf of others.  It was nothing more than correspondence trying to persuade the Government to take a different course.  The Government receives many such letters each year from a wide variety of people.  All those letters would more than likley be capable of being obtained by way of in FOIA information request.  The difference in this case was that the lobbying was coming from the Royal Family and potentially has the influence behind it to cause a change of Government policy.  We might never really know whether the Government changed its policy on things as a result of correspondence received from HRH The Prince of Wales.

Constitutional conventions are not, the Upper Tribunal rightly pointed out, law.  They do not have the same position as a written constitution (such as in the United States of America) and have nowhere near the same effect.  They are essentially, in a lot of cases, nothing more than Parliamentary and Governmental etiquette.  The Upper Tribunal points to the convention that says a Prime Minister must resign from office if, after a general election, he (or she) ceases to lead a party with the majority of seats.  This is a good example of a convention to look at (and indeed we can look only to a few years ago to see it in operation).  Following the 2010 General Election the Labour Party no longer had the majority of seats in the House of Commons.  No party did, by the largest party was the Conservative Party.  While they did not have a majority they arguably had a mandate to govern the United Kingdom (certainly more of a mandate than the other parties did).  However, Gordon Brown remained Prime Minister for several days following the General Election.  Even once the Conservatives and Liberal Democrats had agreed to enter a Coalition there was nothing, in law, requiring Gordon Brown to resign as Prime Minister.  It is simply etiquette that when a Prime Minister looses an election he resigns (essential in a democracy, but not legally required in the United Kingdom).

The Upper Tribunal was placed in a rather unusual position in this case.  It was being asked to consider the extent of a particular convention rather than a purely legal question.  The Upper Tribunal looked at the convention and reached a decision which, from its judgment (and common sense), appears to be a sensible one which gives effect to the convention protecting correspondence educating the heir to the throne in matters of Government policy.  Discussion of this particular convention can be found in paragraphs 89-112 of the Upper Tribunal’s judgment.

The judgment of the Upper Tribunal is lengthy and I don’t want to spend too much time on going through it.  However, the key to understanding the Upper Tribunal’s decision is quite simple, in my view, it rests on the content of the correspondence.  We know from the Tribunal’s decision that HRH The Prince of Wales has been writing to the Government to lobby them on a wide range of issues.  This is not new news to us and has been covered elsewhere, such as in a Biography of HRH by David Dimbleby.   There is, I would submit, a strong public interest in the extent of Prince Charles’ lobbying of the Government.  Someone who is unelected and has as much power and influence as the Royal Family do, particularly senior Royals, must be subject to a level of scrutiny and the public interest in that is greater by the mere fact that they are not elected (in my view).

I won’t say anymore on the Upper Tribunal’s judgment.  I have linked to it at the bottom of this blog post and will now move onto the Attorney General’s s.53 certificate.

The veto of the Upper Tribunal’s decision

The decision to veto the Upper Tribunal’s decision that a large quantity of the withheld information ought to be released is a serious blow to democracy in the United Kingdom.   The Attorney General’s reasons for vetoing the release of the information read more like reasons for releasing the information than not.

The Attorney General makes reference to these being “The Prince of Wales’ most deeply held personal views or beliefs”.  The Monarch is, by constitutional convention, supposed to be politically neutral.  Releasing the information cannot harm the Prince of Wales’ political neutrality because that was harmed the moment his views were communicated to the Government through his correspondence.  If the Prince of Wales is willing to set out his views prior to taking to becoming King then it is not unreasonable to consider that he might be willing to use his influence as Monarch (when he becomes the Monarch) in expressing his views in the future.

This decision from the Attorney General is clearly wrong and undemocratic.  It strikes at the very heart of what the Freedom of Information Act aims to do.  It is open for Mr Evans to seek a Judicial Review of the Attorney General’s decision to use Section 53 of the FOIA.  I hope that he will do so, supported by the Guardian Newspaper.  To date the use of the veto by the Government has gone unchallenged and it risks the democratic process if the Government are not properly held to account over doing so.

Links
Evans v the Information Commissioner and Seven Government Departments [pdf]
Statement of Reasons for use of veto by the Attorney General [pdf]
Criticism for government veto over release of Prince Charles’ lobbying correspondence