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.
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.