We are currently running a series of free, online seminars on Using Freedom of Information for Campaigning and Advocacy.
The aim is to upskill social change organisations, particularly those working with marginalised communities and with limited capacity. Attendees will come away from these sessions with the skills and understanding they need to support their campaign or advocacy work through FOI — and, by sharing the videos, we hope that the benefits will spread further, too.
The first seminar in the series was on Getting the Most From FOI.
Jen, mySociety’s Projects and Partnerships Manager, gave practical advice on how to shape FOI requests to maximise the chances of a full response; what the outcomes of a request might be; and how to deal with each of those outcomes.
You can watch the video here. We’ll also summarise the advice below.
Framing and wording FOI requests
The more thought you put into your request before submitting it, the better the outcomes are likely to be.
Plan for your desired results
Start by thinking about what you’re going to be using the information for.
- What are you trying to do with it?
- So what information do you need?
- How are you going to use it?
For example, you might need the information to feed into some research, in which case you could request base level statistics. Or you might be looking for a big headline number to shape your request around, in which case you can make a single, very tightly defined request.
Asking the right place for the right information
Consider what information is actually recorded. You can only ask an authority for information they already hold — but that doesn’t necessarily just mean documents. Videos, photos, recordings, WhatsApp messages, etc all count as information, and can all be requested.
Once you’ve narrowed down what you need, identify which authority holds the information. It’s worth doing some research here, as it might not always be the one you first think of.
Keep your request well-defined
Consider how you word your request. If an authority has to come back and ask for further clarification, this resets the clock on the 20 working days within which they have to respond — and it won’t begin until they’ve received your clarification. So it’s good to try and pre-empt the problems that might cause delay or rejections of your FOI request.
Don’t be afraid to be very detailed: it’s better than missing something out. You can even include what you’re not interested in, to help narrow the request down.
What time period do you want information from? State this, because otherwise the authority might assume you mean for all time, in which case it could be rejected as being too big a task and therefore taking too much staff time to compile.
Make sure you are extremely precise. For example, when you refer to “a year”, that might be interpreted as a calendar year, financial year, or school year, so specify which you mean.
If there’s anything you already know about the information — like how the types of record you want are generally named, or where they might be found — add those details to your request. You can even send an initial FOI request to ask how the information is held at that authority, which can inform your main request.
Make sure you’re asking for something the FOI officer can easily search for. As an example, asking for data about the ‘local area’ is too vague a term. So if you want information for a particular place, specify what you mean by providing the postcode, road names or the distance from a specific point.
Doing this sort of preparation work is definitely worthwhile, especially in fast moving campaigns, as a clarification will cost you another 20 working days — ie four whole weeks.
How to make a request on WhatDoTheyKnow
Jen made a request during the seminar which you can watch step by step from the timestamp 25:52 to 37:39.
Possible outcomes to FOI requests
Once you’ve made your request, as noted, the authority has 20 working days within which they must respond.
If there is no response:
- Nudge the authority to remind them about your FOI request – you can do this through WhatDoTheyKnow just by adding to the thread on your request page.
- If after a few days there is still no reply, you can report the matter to the Information Commissioner’s Office (the ICO) – more on this shortly.
- If you decide you no longer need the information, and there’s no benefit to it being made public, you can (and should) withdraw your request.
If you get a response:
- Legally the authority must confirm or deny whether they hold the information (or tell you that they “neither confirm nor deny”).
- In the best case scenario, the information you’ve asked for is released with no other issues.
- As mentioned above, the authority might ask you for a clarification, because they need to understand your request better.
- They might say they’re performing a Public Interest test (more on this below). There’s no legal time limit within which this must happen, though guidance from the ICO suggests it should be completed within 20 days.
- Your request might be rejected. Again, more on this below.
The Public Interest test
The Public Interest test weighs the benefits to society of releasing the information against the arguments against releasing the information.
When an authority rejects a request, it has to be because of one of several set reasons (called ‘exemptions’). Some of these exemptions require them to hold the public interest test before they can be applied.
Other exemptions are absolute, that is they can be applied with no Public Interest test. The most common of these are:
- Section 21 — the information is already in the public domain
- Section 12 — the cost limit has been exceeded, ie it will take too much time or be too costly to fulfil your request.
Some authorities include details of how they’ve applied the Public Interest test, and how they reached their conclusion, as part of a reply.
Possible rejection responses
A rejection to an FOI request may take one of several forms.
- Information not held: the authority is saying that they don’t have the information you’re asking for.
- If you think that’s not right, resubmit your request after doing a bit more research. Include any evidence that supports your belief that they do have the information. It might simply be a matter of wording your request less ambiguously so that they know what you’re talking about.
- You might ask for an internal review: this means requesting that the authority’s FOI team look at the decision making process applied to your request, and reconsider whether it was valid. This can be easily done via WhatDoTheyKnow: it guides you through the steps. And it’s worth doing: our research shows that, for example, 50% of refusals from local councils get overturned at the review stage. We recommend saying why you think an internal review should be performed (and in Scotland you must).
- You can ask the FOI team to pass your request along to the right place, or tell you who might hold the information so you can send it there.
- The information is held, but your request has been rejected: If they are declining to provide the information you’ve asked for, the authority must explain which exemption — ie, authorised reason for rejection — it is applying (see below).
- As above, if you don’t agree with their decision, you can ask for internal review, including your reasoning.
Possible outcomes of an internal review
After the internal review, there will be one of the following outcomes:
- The exemption is overturned, and the information you asked for is released
- The exemption is partially overturned, and some of the information is released
- The exemption is upheld, and no information is released
Possible reasons for rejection (exemptions)
Understanding all the various exemptions that can be applied to an FOI request requires time and effort — but if you receive a refusal and you’re not sure what the exemption means, you can always ask the WhatDoTheyKnow team for help.
Jen mentioned a couple of the most common exemptions we see being applied:
- Section 14: Vexatious or repeated requests. If you submit a lot of requests to the same authority within a short time frame, they might be seen as unreasonable (vexatious) — or they can be considered together by the authority, and then might hit the cost limit.
- Section 8: Asking you to provide more information about yourself: for example, if you’ve made a request under the name of your organisation, the authority might ask you to provide a person’s name instead. Bear in mind that you don’t have to use your full name: you can use an initial and last name, or just your title and surname, etc.
Prejudice test
Exemptions can be ‘absolute’ or ‘qualified’ exemptions. If they are absolute, then there’s no further action necessary from the authority. For some qualified exemptions, however, they must carry out a prejudice test.
This tests whether it can be demonstrated that there is a causal link between releasing the information you’re asking for, and harm arising.
Scotland
In Scotland, they have their own points of law around FOI, and they have their own Information Commissioner.
Scottish law around FOI is covered by WhatDoTheyKnow’s Help page here.
If the authority still rejects your request after an internal review
If you have been through the process of having your request refused, requesting an internal review and still receiving a refusal, you may wish to continue to pursue the information — especially if it’s valuable to your work and you disagree with the grounds on which the rejection has been made; or you feel there’s a strong case for the information to be in public.
At this point you can take the matter to the ICO: fill in a form on their site or send an email to their review address (ICOCasework@ico.org.uk). Include your arguments as to why the information should be released.
Before you do so, it’s a good idea to read and follow the ICO guidance. There’s a help page on WhatDoTheyKnow as well.
The possible outcomes here are:
- The ICO rules in your favour and will tell the authority to release the information. If they don’t comply they may be in contempt of court.
- The ICO rules in favour of the authority’s non-release. This does not have to be the end of the matter; if really determined, you can go to tribunal and set out why you disagree with ICO’s decision. If you get to this stage, please do get in touch with the WhatDoTheyKnow team who can give help and advice.
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Image: Desola Lanre-Ologun