Thursday, January 03, 2013
Using the Freedom of Information Act
As an Assembly Member I often find myself resorting to the Freedom of Information Act to conduct basic scrutiny, often in circumstances when I should not have to use this device. For some reason an official Assembly Question from a member does not carry the same weight with Ministers and Officials as FOI requests. Thus, we often have to write formally to get any sense out of Government.
Equally, a fairly innocuous request for information from a local Council, even when publication is in their interest as well, is often shunted off to the FOI Officer and subjected to statutory timescales. In many cases they are ignored and one does not get an answer at all despite the legal obligation on the Council to respond. In other cases Councils meet the deadlines but are deliberatively obstructive. The worst Council in Wales for being bloody-minded in this way, in my experience is Flintshire. Other people may have found otherwise.
That is why I was interested in this article from an investigative journalist on how to get the most out of the Freedom of Information Act. Most of the tools he outlines out are already in my reportoire but there are some useful tips there on interpretating the various responses:
1) Study the exemptions used very, very carefully. The UK FOIA contains exemptions which government/public bodies can use to withhold information. For example, if the information you’re requesting contains the personal data of a living person, they won’t release it (Section 40). Thankfully, they have to tell you why they’re not releasing it. This alone can provide clues about a story. For example, in a recent FOI response, NI’s police told me that they couldn’t release information about a crime because:
“….information may sometimes be provided by bodies listed at section 23(3). In this case, I am unable to confirm or deny whether the police hold any information relevant to your request and sections 23(5)….. are cited to protect the involvement or non-involvement of bodies listed at section 23(3).”
Despite the sketchy wording (“involvement or non-involvement”), I was able to deduce that they had received intelligence about the case from another security body (one of those listed under Section 23(3)). After months of digging, this was a big breakthrough. Even though they refused to answer my questions, I learned something new.
2) If a public body refuses to release information, ask them to conduct an internal review. If the review finds in their favour, you can escalate it to the Information Commissioner’s Office (ICO) who will then conduct an independent review. I recommend doing this. When public bodies refuse to release info, it’s often because they think the journalist will just go away. They’re betting that you have a deadline to meet and don’t have time to argue with them. Prove them wrong. If nothing else, you’ll make them think twice about denying requests on a whim.
3) When developing your argument for release of the information, think like a lawyer. Your impassioned plea for public accountability will fall on deaf ears. The only thing the ICO cares about about is if the spirt and letter of the law was followed correctly in the original decision. You must argue that it wasn’t and have the evidence to prove it. Build your case as if you’re a prosecutor trying to convince a jury.
4) When public bodies refuse to release information, their reasoning can be quite vague. My favourite excuse is: “It would not be in the interests of national security to release this to you – and we can’t tell you why because it concerns national security.” Often, it turns out that national security was not at risk at all; the real problem was a fear of negative press coverage. Use the ICO review as an opportunity to drill down into their reasoning. Even if the ICO sides with them, you may be able to glean information about what makes the information so sensitive.
Absolute exemptions require a different tack. As there is no public interest test, your only option is to argue that they shouldn’t have been applied in the first place.
5) Above all, be persistent. It may be a long and painful process but if you succeed at nothing other than being a pain in the ass to the authorities, you’ve succeeded.
Equally, a fairly innocuous request for information from a local Council, even when publication is in their interest as well, is often shunted off to the FOI Officer and subjected to statutory timescales. In many cases they are ignored and one does not get an answer at all despite the legal obligation on the Council to respond. In other cases Councils meet the deadlines but are deliberatively obstructive. The worst Council in Wales for being bloody-minded in this way, in my experience is Flintshire. Other people may have found otherwise.
That is why I was interested in this article from an investigative journalist on how to get the most out of the Freedom of Information Act. Most of the tools he outlines out are already in my reportoire but there are some useful tips there on interpretating the various responses:
1) Study the exemptions used very, very carefully. The UK FOIA contains exemptions which government/public bodies can use to withhold information. For example, if the information you’re requesting contains the personal data of a living person, they won’t release it (Section 40). Thankfully, they have to tell you why they’re not releasing it. This alone can provide clues about a story. For example, in a recent FOI response, NI’s police told me that they couldn’t release information about a crime because:
“….information may sometimes be provided by bodies listed at section 23(3). In this case, I am unable to confirm or deny whether the police hold any information relevant to your request and sections 23(5)….. are cited to protect the involvement or non-involvement of bodies listed at section 23(3).”
Despite the sketchy wording (“involvement or non-involvement”), I was able to deduce that they had received intelligence about the case from another security body (one of those listed under Section 23(3)). After months of digging, this was a big breakthrough. Even though they refused to answer my questions, I learned something new.
2) If a public body refuses to release information, ask them to conduct an internal review. If the review finds in their favour, you can escalate it to the Information Commissioner’s Office (ICO) who will then conduct an independent review. I recommend doing this. When public bodies refuse to release info, it’s often because they think the journalist will just go away. They’re betting that you have a deadline to meet and don’t have time to argue with them. Prove them wrong. If nothing else, you’ll make them think twice about denying requests on a whim.
3) When developing your argument for release of the information, think like a lawyer. Your impassioned plea for public accountability will fall on deaf ears. The only thing the ICO cares about about is if the spirt and letter of the law was followed correctly in the original decision. You must argue that it wasn’t and have the evidence to prove it. Build your case as if you’re a prosecutor trying to convince a jury.
4) When public bodies refuse to release information, their reasoning can be quite vague. My favourite excuse is: “It would not be in the interests of national security to release this to you – and we can’t tell you why because it concerns national security.” Often, it turns out that national security was not at risk at all; the real problem was a fear of negative press coverage. Use the ICO review as an opportunity to drill down into their reasoning. Even if the ICO sides with them, you may be able to glean information about what makes the information so sensitive.
Absolute exemptions require a different tack. As there is no public interest test, your only option is to argue that they shouldn’t have been applied in the first place.
5) Above all, be persistent. It may be a long and painful process but if you succeed at nothing other than being a pain in the ass to the authorities, you’ve succeeded.
Comments:
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Could I have your opinion on this case, on What Do They Know: http://www.whatdotheyknow.com/request/117194/response/338279/attach/html/2/20121203163754321.pdf.html
The Office of the First Minister and Deputy First Minister in Norther Ireland are claiming that using FOI to get information which has been asked for in NI Assembly questions which have not been answered, would prejudice the conduct of public affairs - which seems like nonsense to me.
Any thoughts about it from your experience in Wales?
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The Office of the First Minister and Deputy First Minister in Norther Ireland are claiming that using FOI to get information which has been asked for in NI Assembly questions which have not been answered, would prejudice the conduct of public affairs - which seems like nonsense to me.
Any thoughts about it from your experience in Wales?
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