Tag Archives: freedom of information

FOI Act expansion: the Financial Ombudsman Service

Last week saw another breakthrough for the Freedom of Information (FOI) Act as the Financial Ombudsman Service (FOS) was brought under its scope. Aiming for “transparency and openness” the FOS is to become public as it was suggested in January this year.

Still, the FOS will not be fully public as there are restrictions to what questions it can answer. To start with, personal information will not be disclosed (as it falls under the Data Protection Act) and any information given in confidence or details that fall under other Acts will also remain private.

According to ifaonline.co.uk the FOS said that it “already accepts and fulfils requests for information.” In response a comment on their website reads: “You learn something new every day. I thought FOS stood for Furtive, Obstructive and Secretive.”

The Independent Financial Advisors website has put together a list of question for the FOS (which you can find here) and some tips for “good requests” that include being specific and asking for documents that do exist rather than documents that might exist or that should exist. (For more general tips on FOIs check James Ball’s on Help Me Investigate.)

Finally, as the FOS prouds itself for answering over 1 million enquires a year, do you reckon that number might be doubled now?




New Code of Practice for LA Transparency

At the end of September, the Department for Communities and Local Government produced a new code of practice which aims to encourage Local Authorities to improve their openness and transparency. The goal is that the code will encourage the publication of more Local Authority data, which will in turn improve local knowledge and ‘spark more improvements in the way services are delivered’.

Communities Secretary Eric Pickles seems very impressed with the new code saying “The code sets out clear expectations. It will help unlock more information and increase accessibility for everyone, taking us one step closer to our ambition to be the most transparent government in the world.”

It all sounds very good, but what does the new code bring to the table? Overall the message is quite clear – local authorities should publish their data by default. It seems good in theory, but local authorities already have a great justification for publishing their information. The increasing cost of complying with Freedom of Information (FOI) requests was said to be around £34m in November 2010 and anecdotal evidence suggests the number of requests are continuing to rise. Making more data available – and in a way which it is easily located – would help authorities to cut the workload and cost of dealing with FOI requests.

On that basis it’s easy to see why a number of Local Authorities have already adopted some of the points within the code. For example, one of the minimum requirements set out by the code is that expenditure over £500 is published, but even the accompanying press release notes that currently Nottingham City Council is the only council not already doing this on a regular basis – so is there any need to include this?

The press release goes on to say that “ministers are minded to make the Code a legally binding requirement to ensure authorities can be held fully accountable to the local people they serve.” Even if this becomes the case, there are already numerous Local Authorities who can’t – or don’t – comply with transparency laws that already exist.

In the short term the code should aid FOI requesters in their pursuit of information, by providing them with official guidelines with which to base their requests. It may even help to reinforce the idea that the Government are in favour of greater transparency. In the longer term I imagine some of the more upstanding Local Authorities will implement this new code of practice – a few might even go further. It will be interesting to see how the code is implemented in some of the more transparency shy Local Authorities though, after all it’s these authorities that generally hold the more interesting information.

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

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.

UEA climate change data sets Freedom of Information precedent…

One of the most heated debates of recent years has been climate change, and on Friday, the Guardian reported that the University of East Anglia has had to relinquish masses of previously secret data on climate change because of Freedom of Information law.

It is said to be a victory for critics of the climatic research unit at the University, after two years of strong-holding vast numbers of global temperature records from fellow researchers and climate change sceptics.

However, the decision by the government’s information commissioner (Christopher Graham) is the first of its kind, and Johnathan Jones, who requested the data and is not a climate sceptic, puts it best;

“The most significant features of this decision are the precedents that have been set”

This decision should enable the release of more scientific research to the public as part and parcel of Freedom of Information law.

The law states that public bodies (including universities) have to release data unless there are good reasons not to, and in this case, the UEA said that legal exemptions applied; some of the data belonged to foreign meteorological offices and it was said that there would be value in selling the data to other researchers.

However, the decision by the commissioner “said suggestions that international relations could be upset by disclosure were “highly speculative”, and “it is not clear how UEA might have planned to commercially exploit the information requested.”

It is the first ruling made on climate data since ‘climategate’, and will obviously have huge implications in both the climate debate and in the request for information, as this case should outline procedure for universities and other public-servicing research centres when it comes to offering information the public.

FOI: why who is requesting (shouldn’t but) can matter

Freedom of Information requests should be “applicant blind” and “motive blind” but they are often not treated as such – David Higgerson, head of multimedia for Trinity Mirror Regional, points out in his blog post FOI FAQ.


This means that FOI rules are being breached if a press officer, to whom your request has been passed on by the FOI officer, asks you what you need the information for. 


It is important for journalists to be aware of this to ensure their FOI requests are not treated differently just because they are coming from a member of the Press. Read David Higgerson’s other post on how NHS officers are being instructed to keep an eye on ’round-robin requests’ as evidence that, in the world of FOIs, not all requests are equal.


A public sector FOI practitioner who blogs under the name FOI Man has posted his insider’s view on when he deems it fair to reveal the identity of the requester and when not. 


Double-edged sword

Until I read FOI Man’s blog, I hadn’t been fully aware of the implications of an FOI officer sharing details of journalists’ requests with the organisation’s press officer, whose job, after all, is to manage its relations with the Press. The press officer cannot, of course, ask the FOI officer to modify the FOI response but it is still rather a worrying thought that spin doctors should be able to freely see who is asking for what information and comment on a draft reply. 


FOI Man says he often removes the name and contact details of the requester before circulating them in-house. But authorities are entitled to know who made the request and may need to know their ID to ascertain that it is not ‘vexatious’. 


In practice, in the spirit of the FOI Act, transparency works both ways: just as you count on full disclosure of the information requested, there is nothing an FOI officer can ultimately do to justify withholding information on the person requesting the information.


Vexatious or not vexatious?

Higgerson explains in his post that the circumstances under which a request can be considered as such are restricted. More details and examples can be found in this guidance note issued by the Information Commissioner’s Office “Vexatious or repeated requests“. 


 Below is a summary of the four possible ‘vexatious’ scenarios. 


1. The requester is obsessive: if the requesters’ records show FOI requests on the same topic are being used repeatedly to reopen issues that have already been considered.


2. The request is a harassment: if the authority believes the request itself could constitute harassment ‘of a reasonable person’. Requests biased by complaints/accusations, use of hostile or offensive language, or an unreasonable fixation on a particular individual could all be used as grounds to classify the request as harassment.


3. The request is seen as aiming to cause disruption: the authority must prove the requester has got malicious intent, but the argument would hold only in the unlikely event the requester has openly stated they are out to cause maximum inconvenience.


4. The request lacks real purpose or value: an auhority can claim this but only as an additional argument to support points one to three above. Thankfully, for the requester, the ICO rules that “it is not appropriate to use lack of value as an argument simply because you cannot imagine what the value might be” and that the fact that the FOI request has a serious purpose can stop it being vexatious.


ID Protection

Section 8 of the Freedom of Information Act states that for a request to be valid the request must “state the name of the applicant and an address for correspondence”.


The dilemma arises, however, when someone is requesting information about their employer. In such instance identification of the requester may not be in their best interest. 


FOI Man says there is then no other recourse than to go undercover and use a (credible) pseudonym, though it is not a method he condones.


‘At your own risk’, is probably the best answer. The ICO clearly states “pseudonymous requests are outside the scope of [the Information Commissioner]’s jurisdiction”. 


Is it a case of right to know versus the right not to be known.

The potential for permanently unlocking public service information…

Freedom of Information has enabled access to information.

But sometimes, there are still issues with making this information accessible to all in usable formats, whilst still avoiding charging or licensing issues.

It’s nice to see a government-encouraged website trying to change things; the Public Sector Information Unlocking Service, although the regulator for the re-use of public sector information, is trying to encourage the copying and re-mixing of data by allowing users to essentially make mini-petitions for information.

They ask you for the problem, your ideal solution and what you will do with the information. Requests are stored by data (under each month) and adding your name and e-mail address allows you to ‘support’ a request, giving it more prominence and a greater chance of getting noticed.

It’s a good idea with potential, but at the moment, the information asked for is a bit vague and confusing (a lot of people get confused when asked for ‘the problem’, and whether or not this with regards to why the information couldn’t be easily accessed or why they are asking for the information), and it only allows access to information that is accessible under the Freedom of Information Act.

Alongside this, it seems that, for a long time, none of the requests have gained any supporters, and despite requests dating back to 2008 it seems as though the whole thing hasn’t really caught any momentum.

It is something to keep an eye on forever, and something that could make the utilisation of Freedom of Information and access to open data a whole lot easier.

How you should use the Freedom of Information Act…

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.