3.10 Freedom of information
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A Freedom of Information (FOI) request can uncover information that those in power would rather was kept secret.
Although the regulations do not, for the most part, extend to the private sector, being able to get hold of contracts between government departments and companies, statistics, performance data, emails or details of meetings between ministers and company representatives can reveal behind-the-scenes lobbying, revolving doors between the public and private sectors, compromised planning or policy-making processes and the performance of companies running public services.
What follows is only intended to be an introduction. The Campaign for Freedom of Information has produced a comprehensive and easy-to-use guide, available to download from their website. There is lots of information on the Access Info Europe human rights organisation’s website, and Your Right to Know, a book by the journalist Heather Brooke, last published in 2006, remains a very useful resource. The Information Commissioner’s Office also produces their own guide to using the FOI regulations.
The Freedom of Information Act, passed in 2000 and fully implemented in 2005, established a ‘right to know’ legal process through which anyone can make a request to a public authority or government department. That authority must then disclose the information or provide valid reasons under the Act for refusal. The earliest such provision was passed in Sweden in 1766 and today ninety-five countries have passed some form of Freedom of Information legislation.
If the information required relates to the environment or to an authority providing a public service it will be covered by the Environmental Information Regulations (EIRs), which also came into force in 2005. The EIRs are a product of a European Union directive and tend to grant a stronger right of access than the FOI acts.
The FOI Act applies to all UK government departments, Parliament, the Welsh and Northern Ireland assemblies, and all public authorities in England, Wales and Northern Ireland. This includes local councils, NHS bodies (hospitals, trusts, doctors’ surgeries etc), police, armed forces, regulators, quangos, the BBC, advisory committees, museums and publicly-owned companies. It does not cover courts and tribunals, or the security and intelligence services. There is a full list of public bodies on the gov.uk website.
The EIRs also cover private companies providing environmental services, consulting or research for public bodies.
The Freedom of Information Act (Scotland) 2002 applies to the Scottish Executive, Scottish public authorities and the Scottish Parliament, and, while broadly similar to the UK act, it offers some increased access to information.
The Acts are enforced by the UK Information Commissioner and the Scottish Information Commissioner.
The Act covers any recorded information held by a public body, regardless of who created it or when. This can include paper records, emails, information stored on a computer, videos, maps, photographs, audio recordings and handwritten notes. Information which is known to officials but not recorded is not covered. You can also ask for information which may not be contained in one document. This means you can ask specific questions about a topic, or for information to be extracted from a database, rather than relying on the documents that the authority already holds.
The Act requires every public sector organisation to have a publication scheme that describes the types of information it publishes, or intends to publish, along with any charges it applies. These schemes should be available on the authority’s website and you can also request a hard copy. They must have been approved by the Information Commissioner and are legally binding. If an authority refuses to publish information specified in its publication scheme you can ask the Information Commissioner to take enforcement action.
Before writing a request, check what documents the authority has already published in case what you are looking for has already been made available. Usually, the best place to look is the authority’s website. You can also contact the member of staff responsible for FOI. Disclosures from all government departments are currently listed on the gov.uk website. The whatdotheyknow website allows you to browse all requests made through the site, and the responses.
An FOI request must be made in writing, either by email, a letter or a fax. You must provide your name and an address where you can be contacted (which can be that of the organisation you are writing on behalf or, usually, an email address). A request made anonymously or under an obvious pseudonym is likely to be treated as invalid. You don’t have to be in the UK or a UK citizen to make a request. You can also specify how you want to receive the information: for example, in ‘hard copy’ (printed), by email or on disk.
The structure is simple. Just write something like:
To whom it may concern,
I am writing under the Freedom of Information Act to request…
then describe what you want, ending with your name and address.
Saying that you are applying under the FOI Act is a good idea, not because the request would be invalid without it, but because it reminds the authority to follow the correct procedure whendealing with the request. If your request is for both environmental and non-environmental information, cite both the FOI and the EIR acts. Some people also like to remind the authority of its various duties under the regulations.
The Act is ‘applicant blind’ which means that the identity or motive of the individual requester should not be taken into account when deciding whether to disclose information (unless the request is deemed to be ‘vexatious’). There is therefore no need to state your reasons for your request: the test is whether the information can be made public, not whether it can be disclosed to you as an individual.
Other key points to remember when drafting a request include:
o Don’t include any personal opinions, complaints or anger in your request.
o Don’t bombard them with questions.
o Design your request to sidestep exemptions in advance (see below).
o Keep your request separate from any other correspondence with the authority.
o Keep copies and a detailed log of all correspondence related to your request.
The request will be valid as long as it is sent to the correct authority – it is not your responsibility to find the correct individual but it’s sensible to send it to the authority’s FOI officer, if they have one.
You can also send the request to the person who deals with the issue in question if you know who that is, or to the relevant minister, chief executive or press officer (if you are a journalist). Some authorities will have an online request form, though remember to make your own copy of the request if you use this. It’s also possible to make a request via the whatdotheyknow website, in which case the request and the results will be published online.
If you’re not sure about your request you can ask the authority you are writing to for advice. They are obliged by law to provide reasonable advice and assistance to anyone wishing to make a request for information. This can include help ascertaining what information is recorded by the authority or what they have already published, as well as assistance in framing the request in the most effective way and advising if there are likely to be any exemption problems. The authority should also provide assistance if you have a disability that means you are unable to write a request.
Authorities should not take any longer than 20 working days to provide the information you asked for, or explain their reasons for withholding it. Under the UK FOI Act, authorities are permitted to extend the normal 20 working day period by another 20 working days if the request is especially complicated or long. Some may cite lack of staff time as a reason for a delay. Requests under the Scottish FOI Act and EIRs must be dealt with within 20 and 40 working days respectively, with no other permitted extensions.
Sometimes, authorities will try to drag the process out, making extension after extension. If this drags on for months, it may be time to consult the Information Commissioner, or at least threaten to.
If your request is denied, you have the right to be told why. If disclosure was deemed to be against the ‘public interest’ then the reasons should be given.
In most circumstances you should be told whether the authority holds the information you are requesting. However, if the request would not have been disclosed in any circumstances – for example if it related to court records or the security services - then the authority is unlikely to reveal whether or not it holds the requested information.
Among the most common ways for a body to reject a request is by claiming it would cost too much to find and deliver the information, so you need to make yours as specific and unambiguous as possible. Requests to the Ministry of Defence for “everything you hold related to BAE Systems” are easily rejected, for example.
For a government department, the cost limit is £600, equivalent to three and a half days work at a fixed rate of £25 per hour. For all other public authorities the limit is £450. Authorities may only use the costs of locating, retrieving, extracting the information, putting it into any special form that you requested and redacting (obscuring) any exempt information. They may not include the time taken to decide whether or not they have to disclose the information.
If you know the documents you want, for example minutes of a particular meeting, a specific report or a set of figures, then describe them as precisely as you can. Alternatively, you can make a request for a particular type of record produced over a specific time period, such as correspondence or emails between the authority and another party over a given period. For example, a request for all correspondence between the Department for Work and Pensions and Atos Healthcare is probably going to get rejected. A request for all correspondence between the Minister of State for Disabled People and Atos Healthcare between January and June 2013 stands more of a chance.
You can ask for more than one thing, as long as it doesn’t exceed the cost limit. You could, for example, also ask for minutes of any meetings that occurred between the minister and Atos for the specified time period.
If you send in lots of separate requests on the same subject, the authority may aggregate them into one request if they are made within 60-working days of each other, and then use the cost-limit to refuse the request. Requests may also be aggregated if, in addition to being made within 60 working days of each other, they are made ‘in concert’ (i.e. if the requester’s name is different but the authority believe the requests originate from the same individual or organisation).
Under the Scottish FOI Act, the authority must answer each request separately.
If you’re told you’re exceeding the cost limit just make another request for less information. You can also ask the authority’s advice on how to narrow your request to within the cost-limit so that you receive at least some of the information you requested.
Cost limits work differently under the EIRs, under which the authority may issue you with a ‘reasonable’ charge for information that exceeds the cost limits (which are set at the same level as under the FOI act).
The FOI regulations are also riddled with exemptions that authorities can cite as reasons for not disclosing information. However, they are not always deployed correctly and require careful scrutiny to ensure you are not being denied information you are entitled to.
The authority must show why the information is exempt, and that the public interest in not disclosing is greater than the public interest in doing so. Do not simply accept the authority’s use of an exemption without checking the legislation yourself first.
It is worth remembering that if the public interest in disclosure and the public interest in withholding are judged to be equal, then the authority must disclose the information. Similarly, if there is little public interest in either withholding or disclosing the information, then the authority must disclose it.
The list of exemptions to which the Public Interest test applies to is long. For a full list see the legislation on the Ministry of Justice’s website.
COMMERCIAL INTERESTS AND CONFIDENTIALITY
The most relevant exemption for getting information about companies is probably section 43 of the act, which sets out an exemption from the right to know if:
“the information requested is a trade secret, or release of the information is likely to prejudice the commercial interests of any person.” (A person may be an individual, a company, the public authority itself or any other legal entity.)
The Information Commissioner’s guidance expands on this, saying “a commercial interest relates to a person’s ability to participate competitively in a commercial activity, i.e. the purchase and sale of goods or services. The underlying motive for these transactions is likely to be profit”.
This is a frequently cited reason to deny information relating to companies but the exemption is still subject to the public interest test so it can be worth appealing – explaining why the public interest in disclosure outweighs any ‘harm’ caused.
To make things more difficult, the commercial interests exemption very often overlaps with section 41, which sets out an exemption from the right to know where the information requested was provided to the public authority in confidence. Companies are fond of commercial confidentiality clauses when signing contracts and these can be hard to get around.
In deciding whether the disclosure of a particular piece of information would be harmful or beneficial to the public, a great deal of judgement is exercised bypublic authorities’ information officers. The dominance of market ideology and a culture of secrecy mean that the emphasis is often on protecting short-term commercial interests at the expense of transparency and accountability.
The important thing to bear in mind if you receive a refusal claiming commercial confidentiality is that the authority must be able to prove that the information being refused would really must have a prejudicial effect on of the company involved if disclosed. The test must rest on the content of the document in question, not its type (tenders, contracts etc).
Another important point to recall is that the commercial interests exemption does not necessarily compel the authority to refuse the whole document, but rather to redact the sensitive information in it so you can’t see it. A public authority may disclose a contract with a company, but redact details of financial returns, for example. The right to know under EIRs is stronger for this and many other exemptions. For instance, they do not allow for commercial confidentiality to trump the public right to access information about emissions.
Other exemptions that may be of particular interest to anyone looking into the relationship between companies and governments are those that cover the formulation of public policy. They are phrased to include everything relating to the process, not just advice. It is very rarely adjudicated in the public interest to disclose information prior to the decision being taken, so you might be better off making your request after the policy has been formulated. The two main concepts hindering disclosure are:
1. ‘Safe space’ i.e. preserving an environment in which policy-makers can make decisions without being distracted by criticism or public pressure.
2. ‘Chilling effect’ i.e. ensuring that policy-makers are able to conduct and record their policy-making free from fear of future disclosure of its details.
These two factors will diminish over time, especially if there has been a change of government in that time.
More positively, following a request by Friends of the Earth, the Information Tribunal adjudicated that there is no expectation of privacy for senior government officials or lobbyists meeting each other or their attributed comments, declaring:
“there is a strong public interest in understanding how lobbyists, particularly those given privileged access, are attempting to influence government so that other supporting or counterbalancing views can be put to government to help ... make best policy”.
A negative reply should also inform you of what to do to appeal the decision and how long you have to do so. You will usually first appeal to the authority itself, requesting an internal review.
Explain as clearly as you can why you think the authority was wrong to reject your request and cite any supporting legislation, previous cases and decisions made by the Information Commissioner. The onus in not on you to prove the authority’s wrongdoing, but for the authority to prove that it has complied with the law.
You can also request a review if you are not happy with how your original request was handled or if you think the authority does hold information it claimed not to in the original reply (minutes of meetings whose existence were denied have miraculously been found after an internal review, for example). If the authority again rejects the request, you can appeal to the Information Commissioner. Again, be as clear and specific as you can about why you think the authority is wrong, making the public interest case for disclosure, and including copies of your request, the initial appeal and any other correspondence and emails with the authority. Remember to check the Commissioner’s website for specific advice on making requests.
If the Commissioner upholds your request they will issue the authority with a notice requiring it to disclose the information to you, or to do whatever else is deemed necessary to comply. If the authority disobeys this notice they can be held to be in contempt of court and in theory, may face a fine or even imprisonment. If you’re not satisfied with the Commissioner’s decision, you can appeal to the Information Tribunal (as can the authority). The tribunal can then be challenged in the High Court but only on a point of law. Controversially, both UK and Scottish ministers have a veto which allows them to overrule certain decisions made by the Information Commissioner. The use of this veto must not be secret and may be judicially reviewed.
FUTURE CHANGES TO THE FOI ACT
Governments tend not to be too fond of FOI regulations. New Labour seemed to regret passing the FOI Act very soon after they’d passed it - Tony Blair wrote in his memoirs that he “quakes at the imbecility” of it.
At the time of writing, the Coalition Government is seeking to restrict the right to information provided by the FOI Act by making it easier for authorities torefuse requests on cost grounds. all who use the FOI Act and limit its reach.
The Campaign for Freedom of Information are campaigning against these changes. Contact them for more details.
CASE STUDY: MILITARY LICENSES
It can sometimes take a long time to get the information you’re looking for. The Campaign Against the Arms Trade (CAAT) spent a year and a half trying to get information out of the Department for Business, Innovation and Skills (BIS) about which companies had applied for licences to export military equipment, and what the destination countries were.
They started by asking for the names of companies that had applied for licences to repressive regimes like Bahrain and Saudi Arabia, requesting information on some of the most controversial weapons categories which included tear gas and sniper rifles. They eventually got BIS to disclose all companies that had applied for arms licences to any country in 2010 – i.e. just before the brutal suppression of many of the popular uprisings in the Middle East and North Africa. This information was enough to allow anti-arms trade groups to go to companies based in their local areas with solid proof that they had intended to sell military equipment to a particular country, and put pressure on them to stop doing so. The request below has paved the way for further requests for information for other years, and has allowed CAAT to better piece together the details of the UK companies profiting from wars and repression around the world.
I would like to request a list of the names of all companies that applied for licences for the export of equipment with Military List ratings during 2010. I would like the companies to be listed by destination country.
I anticipate that the simplest format for the list would be a spreadsheet with just two columns - one for company name and one for destination country.
xxxx , CAAT