Tag Archives: foi

FOI: What is the Section 44 exemption and how can I address it?

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The Freedom of Information Act (FOIA) includes a number of exemptions – or reasons – why a public body can withhold the information you’ve requested. The majority of these are open to interpretation or opinion, and so when they are used to refuse your application they can be challenged – with the ultimate decision resting with the Information Commissioner. It’s particularly useful to follow those decisions, because they can set precedents and be used as part of your request to pre-empt possible excuses.

Even if you can’t pull together a convincing argument that an exemption doesn’t apply, it can be overruled by a public interest test. This ultimately means that even if something is exempt, the information must still be disclosed unless the public interest in maintaining the exemption is greater than the public interest in disclosing it.

Twenty (or so) working days ago, I sent off a FOI request to a local authority, requesting information about a councillor who had been referred to the councils standards committee. The email I got back introduced me to a whole new exemption – one which seems to be the FOI equivalent of the blue screen of death.

Section 44 (S44) of the FOIA – or to use its more friendly title ‘Prohibitions on Disclosure‘ – deals with data which is controlled by other legislation or “obligation”.

The most important aspect of a S44 exemption, is that it’s absolute – which means there is no need for the public body to consider the public interest of the data.

In relation to my request, the council refused under section 44(1)(a) – ‘Where the disclosure of information is prohibited under any enactment’. As with all exemptions the public body should point you to the reason for the exemption, in this case, they pointed out the legislation that prevents the release of the information (Complaints referred to the Standards Committee Referrals Sub Committee are confidential by virtue of paragraphs 1 and 2 of Part 1 of Schedule 12A of the Local Government Act 1972).

The first step should be to consider your initial request against the legislation; is every aspect of your request covered by the legislation? Does the S44 exemption seem relevant to your request (has it been applied correctly?)

The next step is more complex, and requires more in-depth research into the specific legislation the public body are using S44:

  • Does it actually mean the data can’t be released?
  • Has it been made irrelevant by newer legislation or by European obligations/directives?
  • Are there any situations where the law does not apply? (With reference to my FOI request, the legislation doesn’t apply should the individual involved agree to the release of the data, or if the data has been legally released previously).

Depending on the nature/importance of the information, it may be worth getting some legal advice – the law, as it’s written is very complex, and can be difficult to research/interpret.

Another avenue to try is to search Decision Notices on the ICO’s website, to see if they have ruled on a similar request previously. (There currently is only one previous case where S44(1)(a) has come up – FS50168774.)

This should give you some idea if the ICO agrees with the public body’s application of the S44 exemption, and the grounds on which it decided.

S44 is a tough exemption, it is down to the requester to ensure it’s been applied correctly, and with reference to relevant legislation.

There is little scope to respond to a S44 denial, but I’m sure as time goes on we will see more cases where people manage to successfully do just that.

Of course the final option is to petition the Government to change the legislation involved. I await a response from Ken Clarke and will let you know how that goes.

5 ways to simplify an investigation

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If you are trying to investigate something – to get answers to a question – how do you make sure that you use your time most effectively?

 

Here are 5 ways to do just that:

 

1. Write a hypothesis

 

This is the advice of Mark Lee Hunter, explained in a free ebook called ‘Story-Based Inquiry’, and is probably the most important action in keeping you on track.

 

 

A hypothesis helps you clarify exactly what it is that you are gathering evidence for – and it helps you see when your hypothesis needs to change.

 

A good hypothesis should be specific – numbers are good, even if they are plucked out of the air as something to begin with (those investigations linked above may have begun with different hypothetical figures – the important thing is that you start with something you can test). Terminology is important, too – avoid generic terms, and know the jargon of the field you’re looking at.

 

2. Break the investigation down into discrete tasks

 

An investigation is much more manageable – and easier for others to collaborate on – if you have broken it down.

 

Typical tasks might include the following:
  • Find background information – e.g. news coverage, official reports, etc.
  • Find experts
  • Find witnesses
  • Find people who are affected by it (they may gather in online communities such as Facebook groups, mailing lists or forums)
  • Find laws and regulations relating to the issue
  • Find documents – e.g. internal reports, meeting minutes, declarations of interest, etc.
  • Find facts and data – these are often compiled in internal or external databases, research, etc.
  • Write up the story so far – this is particularly useful for providing context for those who come to the investigation later.

 

3. Keep a record of what you’ve done and need to do

 

The potential for distraction is only partly addressed by a good hypothesis. If you have numerous parts to the investigation then you need to keep track of those – but also avoid spending so much time on one avenue that you overlook others.

 

Blogging the results as you go – and including what needs to be done next – can help you keep track of your progress.

 

Using categories (for questions or types of query) and tags (for people, places and organisations) effectively will allow you to easily find that information by just looking within that category or tag. You can also use a bookmarking tool like Delicious to keep track of online material, using and combining tags when you need to find them again quickly.

 

Blogging also makes it easier for others to find you – if they are interested in the same area. If you don’t want others to see what you’re doing, however, you can make posts or entire blogs private or password-protected.

 

In addition to blogging, there are a range of free online project management tools that can help keep track of the tasks ahead of you (for individuals, Springpad is quite useful in being on hand when something occurs to you).

 

And the Story Based Inquiry website provides a range of templates for keeping track of your investigation too: http://www.storybasedinquiry.com/masterfile/

 

All of the above allows you to get things out of your head and onto paper, clearing your mind to take a step back and re-assess what should be the priority next.

 

4. Exercise your right to information – but use the phone first

 

The Freedom of Information Act, Data Protection Act, Audit Commission Act and Environmental Information Regulations require public bodies to supply information when requested, as long as they hold the information and no exemptions apply. It is very useful for getting hold of information – but too often it is used with no clear idea of what you are actually looking for.

 

Speaking to someone who deals with that information can help you clarify what you ask for. Knowing what information is held, what the jargon is surrounding it, and what policies and reports relate to it, can all influence what you eventually ask for.

 

It also helps if you pre-empt any excuses that may be used to avoid providing you with that information.

 

5. Use computers to drill into large amounts of data

 

If your investigation involves going through lots of tables, it may be worth investing some time in learning basic computer assisted reporting techniques.

 

This will save more time further down the line, as well as potential errors which can creep in when you’re doing things manually (although you should also check initial results manually too).

 

Do you have any other tips for using time effectively in an investigation?

Making FOI requests: pre-empting the ‘commercial interest’ excuse

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Quite often Freedom of Information requests are refused on the grounds of ‘commercial interest’ – or specifically that “the commercial interests of a third party will, or are likely to, be prejudiced”. This might also be referred to as being refused “under Section 43 of the Freedom of Information Act”.

Note that this is separate – although similar to – “commercial confidentiality” which applies to information that has been provided to the public body by another company.

Sometimes the use of Section 43 will be justified. Where it is not, however, is when the public interest in disclosure overrides those commercial interests. And this is where it is useful to be proactive in your FOI request.

The Information Commissioner’s Office is very useful in explaining how public bodies must deal with your FOI request, and provides guidance on each of the exemptions.

If you expect that your request may be refused on the grounds of commercial interest, it’s worth addressing these up front as part of your request, after you have outlined the information that you require.

How to phrase your FOI request to address possible commercial interest objections

Typical phrasing might go as follows:

“Please note that Section 43 of the Freedom of Information Act states that any attempt to withhold information on the basis that it would prejudice commercial interests can be overruled if there is a public interest in releasing that information”

You can then further strengthen your request by specifying how the release of this information does indeed overrule commercial interests on the basis that it will do one or more of the following, which are specifically outlined in guidance by the Information Commissioner’s Office (PDF):
  • further the understanding of, and participation in the debate of issues of the day; 
  • facilitate the accountability and transparency of public authorities for decisions taken by them; 
  • facilitate accountability and transparency in the spending of public money; 
  • allow individuals to understand decisions made by public authorities affecting their lives and, in some cases, assist individuals in challenging those decisions; 
  • bring to light information affecting public safety

Typical phrasing, then, might go something like this:

“This information clearly qualifies as being within the public interest as defined by the Information Commissioner’s Office (Awareness Guidance No.5) on the basis that it “furthers the understanding of, and participation in the debate of issues of the day”; “facilitates the accountability and transparency of public authorities for decisions taken by them”; and “facilitates accountability and transparency in the spending of public money.”

This public interest test will probably also help you focus on what information you should ask for.

Some other notes:

“The price submitted by a contractor is likely to be commercially sensitive during the tendering process, but less likely to be so once the contract has been awarded.” 

“Where a company enjoys a monopoly over the provision of the goods or services in question it is less likely that releasing the information will have a prejudicial impact on that company.” (guidance by the Information Commissioner’s Office (PDF))

The public body cannot make any presumptions on the commercial interests of the company, but should ask the company to make its own case if it wants information to be withheld. This cannot be used as an excuse for delaying a response: “Failure to respond by those being consulted does not remove the obligation [for the public body] to respond within [the 20 day] time limit.” 

It should also be noted that the public body also does not have to adhere to the wishes of the company. Any case put forward by the company for withholding information is only that: a case. If that case is overruled by the public interest in disclosure, then the public body can still – and should – release the information.

What next for FOI?

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Any keen FoI-er will have come up against extensive waiting times and delays in attempting to get hold of information. Not to mention the difficulty in uncovering which body holds what information. Yesterday it was announced that the Ministry of Justice is to review the Freedom of Information legislation, brought in under by Tony Blair’s government. The act has come under recent scrutiny, since it came out that Blair himself thought its passing had been a mistake.

 The Past

 In 1996 Tony Blair presented awards at the Campaign for Freedom of Information annual awards ceremony. He paid tribute to “Maurice Frankel who has for many years been a tireless campaigner for freedom of information” and celebrated that “I think that the case for freedom of information is actually getting stronger not weaker”. (full speech available here: http://www.cfoi.org.uk/blairawards.html)

But in September of last year Blair’s memoirs were published, and it became clear that he had changed his tune. The Guardian was the first paper to interview the former Prime Minister following the publication on September 1 2010. During the interview Blair admitted that some of his policies might not have been as wise as he once thought. Top of the list were the ban on fox hunting and the Freedom of Information Act, passed in 2000.

He said: “It’s not practical for government. If you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations. Everybody knows this in their walk of life. Whether you are in business – or running a newspaper – there are conversations you want to have preliminary to taking a decision that are frank. And if those conversations then are put out in a published form that afterwards are liable to be highlighted in particular ways, you are going to be very cautious. That’s why it’s not a sensible thing.”

 

The Present

 Since then the legislation has been reconsidered. And supported.

At the beginning of the year the coalition announced plans to widen the scope of the Freedom of Information act, thus making more public bodies answerable to the act and bringing in measures to make information more accessible.

  • to extend the FOI Act to a range of regulatory, representative and other bodies
  • to implement the last government’s measures to release old government records after 20 years instead of 30 years
  • to make documents available at National Archives
  • apply the Act to companies that are jointly owned by more than one public authority

But is it all too good to be true. Speaking about the plans, Kenneth Clarke, Lord Chancellor and Secretary of State for Justice sad: “The measures outlined will increase transparency. However, we must also ensure that information which it is not in the public interest to release is properly protected.”  

The Future

Now the Ministry of Justice is promising to hold a further review of the legislation later on this year, following pressure from Ministers to make the Local Government Association subject to FoI. There is unlikely to be a change to the scope of FoIs but it’s possible the charging policy could change. The Local Government Chronicle wrote yesterday: “councils hoping for a repeal of the scope of FoIs would be better advised to wait for hell to freeze over”.

Key to the policy revamp will be motions to try to encourage the sharing of information. Justice minister Lord McNally said he hope that amendments will force public authorities to “proactively release data in a way that allows businesses, non-profit organisations and others to re-use the information for social and commercial purposes”. He believes that the changes will mean that a greater amount of information will be available. It is expected that councils will argue against the motion on the grounds of cost. LGC wrote: “MOJ will be looking at the costs of complying with current legislation as part of its review, so councils are likely to have their best opportunity yet to properly highlight their plight.”

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Please stop wasting my time and money and just send me the data

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Web developer Adrian Short made a Freedom of Information request to Transport for London for journey data from the London Cycle Hire scheme on 8th October. In January TFL released data to some developers. Yet to date TFL have not complied with the FOI request and Adrian Short is one developer who is not able to make use of the data.
Adrian Short is a supporter of the Barclays Cycle Hire scheme. He created a free API service for live data, which helped developers produce the rich choice of cycle hire apps Londoners enjoy. His motive? “I’m keen to do what I can to help people use it and to make it work better.” 
What happened
08.10.2010 Adrian made an FOI request for records of the first million Barclays Cycle Hire journeys as a CSV file.
05.11.2010 TFL send the first 100 journeys as  an email attachment and say the full million will be available from their website
04.12.2010 London Open Data Hack day passes without the TFL data
27.12.2010 Adrian requests internal review by TFL of their handing of his FOI request
05.01.2011 TFL make the data available from their developer area, which requires registration and agreeing to TFL terms and conditions
TFL: “I note your preference to be sent this data directly without having to register. This will be considered as part of the internal review, which should take place next week”
Adrian: “ Please stop wasting my time and money and just send me the data.”
What Do They Know FOI documents
Million journey zip file
The data is now available to developers who accept TFL’s terms. Developers have been able to produce visualisations, for example these by Suprageography
and Steerdavies 

Media_httpwwwsteerdav_eisfe
You could also download the million  journey zip file from a link in this Guardian article Guardian Data Blog, but you would have no legal basis for distributing a service which used the data.
The Licence: some highlights
2.1.2 only use the Transport Data in accordance with these Terms and Conditions and the Syndication Developer Guidelines, and not use such information in any way that causes detriment to TfL or brings TfL into disrepute.
2.1.3 You shall not make the Transport Data feeds available to any third parties, save with TfL’s prior written consent
2.1.7 only display the Transport Data for the intended use as approved in the registration form
4.4 TfL may change, suspend or discontinue all or any aspect of the Service or Transport Data, including its availability, at any time, and may suspend or terminate Your use of the Service at any time and for any reason
Whose data?
The TFL licence is completely at odds with government open data directives, the policies of the Greater London Authority Datastore, of which TFL is a member, and guidance from the GLA Data Committee:
“Robust requirements in all contracts to include ‘allow for free commercial re-use of public data’. This is included in the Data Charter for London.”
Issues
1. FOI compliance.
In making the data available, but subject to a restrictive licence which negates your rights under the Freedom of Information Act, TFL are clearly in breach of the Information Commissioner’s guidelines. The offer to enter into a developer contract with TFL is not a response to an FOI request. Is it possible that an Information Governance Adviser in the Information Access & Compliance Team is unaware of  this?
2. Commercial development using Public Sector Information
The terms of the licence are so onerous for developers that it is difficult to see how significant commercial investment in TFL data can take place. Visualisations and weekend apps, yes, but try raising investment for a service where your use of data may be suspended or terminated at any time for any reason.
3. Is it the policy of TFL to delay compliance with this FOI request to encourage developers to sign up for their T&Cs? Whilst that may look like a strategy from inside the bunker it can only serve to undermine innovation in services using transport data.

How are the BBC handling their FOI data…?

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Now, more than ever, public organisations are trying to make themselves just that: public.

“The genie cannot be put back into the bottle, however hard authorities try,” writes John Kampfner in today’s Media Guardian. “The information relationship has shifted, but the power relationship has not. The Democracy recession is gathering pace.”

The general public now have a thirst for that most gritty and honest of information and journalists more than ever are gaining access to it.

This means that everyone is becoming more wary of the way in which both public and private organisations handle, store and release information for public consumption and record.

This is why we are mentioning onebillionpageviews: the anti-license fee website have offered a single download that allows access to all the Freedom of Information requests that the BBC received (and hosted on their site) before 2008, which were later removed.

First of all, it is shocking that whilst everyone is so tuned in to the way in which public organisations handle data that the BBC would simply remove a huge cache of data from their site.

Secondly, for the BBC to do anything this brave and seemingly careless with their data when websites like NoTVLicenseFee are willing to keep that store of data available for the foreseeable future seems counter to their nature as a ‘public’ organisation.

They have also chosen to host every freedom of information request that the BBC received since the big removal and any more that arise in the future.

It’s great that a site like this wants to hold organisations to account and make sure that data is readily available amongst the rise in public curiosity into how their money is being spent, but it is also important that massive organisations like the BBC are careful to not be caught in the crossfire that grows out of the “democracy recession”.

Why the Freedom of Information Act makes GPs vulnerable under the new NHS

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by Chie Elliott

The National Health Service is about to undergo a major overhaul, with strategic health authorities and primary care trusts being abolished and GPs gaining control of the NHS budget and responsibility to commission healthcare services. 

Some GPs are not happy about the pressure imposed by their additional administrative duties, which could detract from their primary role as doctors. Others may see the change as empowering, but more power probably also means increased public scrutiny – for doctors are not immune to the spying eye of Freedom of Information Act.

The resolution of case reference FS50295954 of the Information Commissioner’s Office involving a general practice in County Durham illustrates the point. 

The case was referred to the Information Commissioner, when the complainant failed to obtain full disclosure of the information he had requested to the practice. The ICO ruled in favour of the complainant. 

What happened? 
1. The complainant wrote an FOI letter to Weardale Practice requesting information on eight points mainly relating to the Practice’s Health and Safety regulations. 
2. Some of the information was released after the Information Commissioner intervened but some remained undisclosed.
3. The Practice tried to justify withholding information by using section 40 (2) of the Freedom of the Information Act, which refers to exemption on the grounds of personal data protection.
4. The Commissioner did not think disclosure of the information requested would cause damage or distress to the individuals whose data would be made public through it.
5. The ICO considered that Weardale Practice was in breach of the Freedom of Information Act.

You can read the Decision Notice in its entirety here. 

The law is clear on doctors’ accountabilities. Schedule 1 of the Freedom of Information Act covers which public authorities the Act covers. Part III of Schedule 1 relates to organisations and individuals in the National Health Service, with paragraphs 44 and 45 referring specifically to GPs and other medics:

“44. Any person providing general medical services, general dental services, general ophtalmic services or pharmaceutical services under Part II of the National Health Service Act 1977, in respect of information relating to the provision of those services

45. Any person providing personal medical services or personal dental services under arrangements made under section 28C of the National Health Service Act 1977, in respect of information relating ot the provision of those services.” 

Under the Freedom of Information Act, not only a practice but individual doctors working at the practice are considered to be public authorities and can therefore be held accountable. 

Nothing new there. The novelty could be in the fact that we may be evaluating our GPs less as healers of our ailments, more as politicians in charge of public affairs that impact our welfare. 

As long as the Freedom of Information Act rules, it is the patients who will have their fingers on the doctor’s pulse.

 

How you should use the Freedom of Information Act…

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The Freedom of Information act, despite becoming common practice amongst the new wave of journalism, is still a very new concept to a great deal of the public, and finding the best way to present data that is acquired through this act can be a difficult task.

AcademicFOI are the perfect example of an organisation who are doing great things with useful data.

First of all, they ask questions and make sure everyone knows what questions they asked; the whole process not just public but easy to understand.

Take, for example, the most recent investigation into workplace bullying at UK universities.

The Freedom of Information request covered fourteen questions, covering all the universities.

This data is daunting, even to the most experienced, so for the public to even attempt to consume this raw data there must be a lot of work done.

They immediately outline the key findings, the mission groups and the extremes; the ‘newsworthy’ data that provides the key news angles and gives the most interesting answers. Further interesting findings are then outlined and explained, clearly.

The next section is where they really come into their own; they unveil every question asked, explain what they should have asked with hindsight, and where they could or have encountered problems.

This is not your standard public process as they make public every aspect of the investigation. The basic excel data is available for download and their findings are presented in tables categorised by the question they apply to, so nothing is hidden, their news values are openly identified and the data is there for you to find answers to any questions you may have.

Although, it would be useful if then information were available in Google Docs formats as well, to help move along the adaption of data for other journalists.

All in all, if there was a way to deal with data that best represented what the Freedom of Information Act is all about, it is this way. Making everything public is what the act was created for, and allowing your audience to interpret the data rather than consume it is something that more organisations need to become open to.

Why is the Electoral Commission trying to make life difficult for journalists?

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That’s the question that David Higgerson is asking after casting his eye over the results of various investigations into electoral expenses, and a Freedom of Information response from the Electoral Commission revealing “that it told councils there was ‘no provision in law’ for people to take notes from the expenses

“Several authorities had sought information on what to do if reporters asked to look at the documents, and the response from the Commission’s North West team was:

In the absence of any definitive legislation on this point, the prudent option is to inform the paper that ‘inspect’ does not extend to the taking of notes. To that end, if the paper wishes to look at the returns in more detail at a later date, (for what ever purpose) they should purchase a copies.

Higgerson points out that “while there is nothing in law which says people can take notes, there’s nothing in the law which says people can’t – so why make the distinction?”

More on David Higgerson’s blog here.

You can join one of the various investigations into election expenses here. If you want to start your own there’s plenty of advice on this blog – post a comment if you want help.

How to investigate

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Think something is unjust or unfair – or just curious to know why something happened or how something works? Are you saying “Someone ought to do something”? That someone is you.

Society is only as good as those individuals willing to stand up and ask questions of the people in charge. I’m guessing you’re one of those individuals.

As a seasoned battler with bureaucracy here are my top tips about what works and what doesn’t when it comes to finding things out.

First, though, you might want to know the sort of mindset that helps in an investigation. The good investigator must value his or herself and her right to know. If you paid for it or it’s a public service then you have a right to know how that money is spent or why a decision was made.

An investigator should also have the ability to:

  • Think independently
  • Question received knowledge
  • Laser through bullshit
  • Find facts

What we can’t do at Help Me Investigate is do your investigation for you. And you probably wouldn’t want us to.

Your case is something about which I imagine you feel very strongly and that is always the best motivation for finding out something.

What we will do is provide an environment, tools and a community that can help.

Accessing information is a matter of persistence and will. It took me 5 years of persistent effort and even a High Court case before MPs were forced to disclose their expense receipts. It’s not going to be that difficult to find out why a tree was cut down on your road but the point is that you will need some tenacity and will. Don’t give up at the first hurdle but equally don’t be dispirited if you don’t get results overnight.

The aim of this site is empower people by giving them the tools they need to investigate for themselves and to break investigations up into lots of smaller tasks – ‘challenges’ – that people can complete in their own time. You can find advice on this website and also on my website www.yrtk.org and book ‘Your Right to Know. There’s nothing we can do that you can’t, and you will have much better knowledge of your particular situation and the people involved.

As for making Freedom Of Information (FOI) requests – I’d recommend you use this website: www.whatdotheyknow.com. You can read many other requests (including some of mine) and see how various public bodies respond. The site will also help you keep track of requests and when organisations need to respond.

If you come across a specific hurdle and think we can help, do get in touch.

Tips for creating your own investigation:

1. Be specific

If you want a concrete answer you must ask a concrete question. If you think the council has an unfair parking system try to find a way to quantify that. Ask for a breakdown of tickets issued by street, of revenue raised, etc.

Officials can avoid giving a straight answer to a general question; it’s much harder if you ask a very specific detailed question.

2. Be clear

You must first be clear in your own mind what you want to find out. Then keep your investigation concise.

Have a main point and stick to it. Don’t wander off on personal digressions or gripes. Write grammatically and use a dictionary to spell correctly to avoid being written off as part of the ‘green-ink brigade’.

3. Be reasonable

It’s not always a conspiracy. More likely you’ll find the reason something went wrong was due to incompetence or a failure of communication within the institution.

Avoid personal insults. This leaves you open to being attacked personally yourself and you should want to maintain the moral highground.

4. Manage your expectations

Think in terms of tangible things you can actually do. ‘Get rid of all evil parking attendants’ is not really a manageable goal. Instead think about what you can do: make a phone call, write a letter, send a freedom of information request, do some research, talk to people, campaign.

You should expect to come up against opposition, after all no one likes to admit they are wrong and few people willingly give up power.

You would hope that those in authority understand that in a democracy they serve at the pleasure of the people and that they would welcome the involvement of the citizenry. But I found this is not usually the case and you will have to go some way to collect enough evidence to force change.