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.

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