1. WhatDoTheyKnow and the Wikipedia citation

    Wikipedia is ‘the world’s largest and most-read reference work in history’.

    Fundamental to keeping its articles accurate and trustworthy is its policy that all information must be supported by citations — links to independent, third party sources to verify that statements are factual.

    Our Freedom of Information site WhatDoTheyKnow, as an archive for information released by authorities, has been cited in countless Wikipedia articles, playing a part in combatting misinformation and allowing interested readers to discover more about the topic they’re perusing.

    And unlike certain publications (including some UK national newspapers), it’s happily accepted as a reliable source (rightly so when you think about it, of course — all the information we publish is coming straight from the horse’s, or rather the authority’s, mouth, with no journalistic spin).

    All that being so, we were curious to see what sort of responses were linked to, and why. Having spent some time clicking through some of those tiny footnotes, we’re pleased to present a selection of the more interesting Wikipedia articles that link to WhatDoTheyKnow as a citation.

    What’s the going rate for this unique job?

    The College of Arms is allied to the Royal Household; it’s an ancient institution that deals with the granting of new coats of arms, the official register of peers, the flying of flags and other such matters of pomp, circumstance and heraldry.

    Coat of ArmsTry explaining to its founders, back in the 1480s, that they would one day be documented on Wikipedia — and that sums paid by HM Treasury to the current Garter King of Arms, Thomas Woodcock, would be available to everyone publicly, thanks to an FOI request on WhatDoTheyKnow.

    The Treasury provides a useful note: “It might be helpful if we explain that the Garter King provides a variety of work for the Government including, but not confined to, providing advice  on  the use/misuse and the protection of Royal Arms, reviewing evidence for Peerage claims, and designing new coats of arms. In addition, he has a key role at many ceremonial occasions including the State Opening of Parliament.”

    We always applaud an authority going out of their way to give context to a response.

    Are they watching us watching them?

    TV licensing is a topic that brings a lot of visitors to browse responses on WhatDoTheyKnow, probably because it’s an area that by its very nature is shrouded in uncertainty.

    Photo of a TV detector van by EagleashCan detector vans really tell if you are watching television without a licence — and if so, how? How many prosecutions have there been for non-payment? Does the BBC monitor anti-licence campaigns?

    Much of our understanding about the workings of the licensing system have come from, or been verified by, FOI responses.

    The Wikipedia entry on TV licensing in the UK links to WhatDoTheyKnow in no fewer than 36 of its 232 citations. These include the following nuggets:

    …and many more.

    Bordering on classified information

    Border Five is an informal forum on customs and border management policy issues, made up of the Department of Home Affairs (Australia); the Canada Border Services Agency; The New Zealand Customs Service; The United Kingdom UK Border Force; and the US Department of Homeland Security.

    Southern edge (customs border) of Captain Cook wharf, Ports of Auckland, New Zealand. An electric fence is faintly visible behind the historical fence - image by IngolfsonHow to verify that these are indeed the member bodies? With this FOI response from the Home Office.

    Clearly, border security is a sensitive issue, and much of the other information requested here — such as the topics discussed and people present at meetings — was refused with a response that they could ‘neither confirm nor deny’ whether the information is held.

    On the rails

    Image by Andy Brass. The Victoria Viaduct, part of the Leamside Line discontinued railwayDisused railway track the Leamside Line is safeguarded from future building developments, Network Rail confirmed.

    Here is an example of an authority complying with the FOI Act despite the fact that at the time of the request they were not subject to it: as they state at the beginning of their response “Although we are not covered by the Freedom of Information Act, we work to disclose information as if we were”.

    Subsequently Network Rail was, in fact, deemed to be subject to FOI, as explored by our researcher Alex in this post.

    Something special

    Special Constable insignia - chart from the Wikipedia pageSpecial constables are unpaid, volunteer members of the police force, and they have their own insignia, which vary from place to place.

    Ranks are marked via the designs on their epaulettes, as depicted in this table which cites many FOI requests to the various forces — it’s possible that a contributor to this Wikipedia page submitted a series of requests specifically for the purpose of helping compile the collection.  Here’s an example request, with a photograph of the insignia they provided viewable here.

    Banner image: Futureatlas (CC- by/2.0). Coat of Arms: Sodacan (CC by-sa/3.0); Detector van: Eagleash (CC by-sa/4.0); Border fence Ingolfson; Leamside Line: Andy Brass (CC by-sa.2.0); Special Constable insignia chart taken from the Wikipedia page

  2. What they don’t know: “information not held” responses

    Under the Freedom of Information Act, you have the right to ask public authorities for information. If they hold the information you’ve requested, in most cases they must release it.

    ‘If they hold it’ is a key point: of course, if the body doesn’t have the data you’re asking for, they can’t provide it, and accordingly, as permitted by Section 1(1) of the Act, they may issue an ‘Information not held’ response.

    For the person requesting the information, this can feel like a blow, but we suggest stopping and thinking… is it surprising, newsworthy even, that the public body didn’t hold the information expected?  Sometimes, it’s as interesting to know that an authority doesn’t collect or store a certain category of information as it would be to obtain it.

    Often, though, an ‘information not held’ response may simply be a sign that you should re-request the information from a different body. Given the complexity of government it’s not surprising requests are sometimes misdirected to bodies that don’t actually hold the information requested. Fortunately for request-makers, in such cases Section 16 of the Act requires public bodies to provide advice and assistance and point requesters in the right direction.

    Let’s take a look at a few recent examples where the fact that information isn’t held is at best surprising and at worst a matter of potential concern.

    An NHS Trust doesn’t have data on hospital ward deep cleans

    This request to Wirral University Teaching Hospital asked how many times the wards in Arrowe Park Hospital (one of this NHS Trust’s locations) had been deep cleaned in the months March to May 2020.

    The response states that the Trust does not hold this information:

    “Wirral University Teaching Hospital (WUTH) does not electronically collate this data, ward cleanliness activity is not measured or audited in this specific manor [sic].”

    We think this is interesting information in itself, but the Trust could also have gone into more detail about why such data isn’t collected: is it that deep cleaning doesn’t happen, or is it just not noted? Looking more closely at the wording of the response, perhaps it is recorded, but on paper rather than digitally.

    The request-maker didn’t actually specify that they wanted electronic data, so it is a little surprising that this has been assumed.

    A curious citizen could issue a follow-up request to find out more, or to ask for copies of paper records if they do exist. Equally, if they felt it worth further probing, they might draw this response to the attention to the local Healthwatch, or their local councillors who could look more deeply into the matter.

    DEFRA doesn’t have data on badger cull zone boundaries

    A citizen requested maps from DEFRA to show the boundaries of ‘badger cull zones’ from last year and the proposed ones for 2021. As this was a request for environmental information, it was handled under the EIR.

    DEFRA’s response quotes the exception at regulation 12(4)(a) of the EIR “which relates to information which is not held at the time when an applicant’s request is received”.

    As required by both the FOI and EIR Acts, DEFRA points the user toward the body that it believes will have such information, Natural England, giving them a good idea of what to do next in their pursuit of this data.

    In cases like these, where a request is repeated to another authority, we recommend the addition of annotations, linking each WhatDoTheyKnow request page to the other. Anyone can add an annotation, and it helps people discovering the information through, say, a search engine, to follow the request.

    The DWP doesn’t have data on frozen pensions

    This request seeks information from the Department of Work and Pensions about frozen state pensions, the UK practice of not uprating pensions according to the ‘triple lock’ system if the recipient lives in certain countries abroad.

    It would appear that the request-maker is wondering whether it would actually cost the authority less not to administer such freezes.

    The DWP state that they don’t hold information on the number of staff working specifically in this area:

    “As of March 2021, the DWP has over 90,000 employees spread across different professions (e.g. policy, legal, finance, and operational delivery).

    Many employees deal with a range of issues and do not exclusively focus on one aspect of the DWP’s work. Accordingly, we have no recorded information on how many employees are ‘required to deal with Frozen British Pensions’.”

    They did not provide similar detail on the other questions posed by the request-maker, who has now requested an internal review, a recourse when you believe your request has been handled wrongly.

    “I cannot believe that the DWP does not know the answers to my questions”, says the user in this request for a review. They might have been more precise about where the response has fallen short, but we’ll see whether this avenue is successful, presumably within the 20 working day limit advised by the ICO for internal reviews.

    DCMS doesn’t have data on differing COVID rules for football spectators

    A request-maker wonders why the rules around watching football differed depending on where the match is taking place — apparently grassroots football matches were being denied spectators because they were held on private grounds, while matches on public grounds could welcome a crowd:

    “Please provide evidence / reasoning on what the difference to the threat of Covid there is between private and public football pitches.”

    The Department for Digital, Culture, Media and Sport responds that it:

    “does not have information within scope of your request. This is because DCMS did not make the decisions on whether spectators may attend sporting events, but followed advice given by the Cabinet Office. This would have been a Cabinet Office decision based on evidence that they were privy to.”

    The response then provides an email address for that authority — though we are surprised that the Cabinet Office would not have consulted DCMS or at least provided them with their rationale for this policy.

    Have you had a notable ‘information not held’ refusal, or can you spot one in responses recently classified “not held” on WhatDoTheyKnow? If so, let us know, and we might cover it in a future post.

     

    Image: Nicholas Bartos

  3. Exploring information about Freedom of Information in the UK

    To understand the effectiveness of Freedom of Information laws requires good quality information about the volume of requests and how they are being processed.  Picking up on previous work investigating FOI statistics for central and local government, we have built a new minisite that covers Cabinet Office statistics on Freedom of Information in UK central government and OSIC statistics on Freedom of Information in Scotland. This site is up-to-date with 2020 statistics, and can be viewed at: https://research.mysociety.org/sites/foi-monitor

    We can do this because there are already sets of statistics gathered and publicly released for several groups of public authorities in the UK. But in most jurisdictions there is not good information about the overall working of the system, with data often limited to issues that are brought to the attention of the local equivalent of an Information Commissioner. In our recent report we made the case for more information gathering in the UK

    In the UK, there are two good partial sources of statistics about Freedom of Information requests. The Office of the Scottish Information Commissioner (OSIC) has a quarterly process where Scottish authorities deposit statistics about the SAR, FOI and EIR requests they have received, how they have been processed, and how exemptions and exceptions were applied.  For the rest of the UK, there is far less data on the operation of the Freedom of Information Act. The Cabinet Office publishes a similar quarterly series covering FOI statistics covering requests made to a selection of central government ministries, departments and agencies.  

    In principle, FOI in the UK applies to far more public authorities than FOI in Scotland, but in terms of available information, the OSIC collects more information from more agencies. The Cabinet Office collects 76 sets of statistics from 40 agencies, while the OSIC collects 110 from 507. This means that the available picture of information on FOI is far more complete in Scotland. In both cases information is published and accessible as spreadsheets, making it possible to analyse differences between authorities and change over time. 

    However, this information is not always easy to understand or use. To generalise our previous analysis of Cabinet Office statistics, we have built a new minisite that also applies to information about Scottish authorities and in principle could be generalised for other jurisdictions. 

    This allows examination of trends in individual statistics (overall request volumes, how those requests were processed, or how individual exemptions were used) across sectors or individual authorities. These statistics are up to date with 2020 information. 

    We hope this will be a useful resource for all those interested in UK FOI statistics, and as a potential model for how FOI statistics collected can be made easier to access and understand.

    This site can be viewed at https://research.mysociety.org/sites/foi-monitor, and the source code is available on GitHub

    The creation of this mini-site was partially supported by a Adesssium grant.

    Header image: Photo by Tobias Messer on Unsplash

  4. Complaints about FOI requests on public bodies’ relationships with Stonewall

    We’re aware that our Freedom of Information site, WhatDoTheyKnow, has recently been used by a number of people as part of a campaign initiated on the Legal Feminist website, encouraging people to submit FOI requests to authorities who have undertaken the Stonewall Diversity Champions process. This usage has provoked some commentary online, and complaints to our support team.

    Straight off, we should state that mySociety positively and passionately supports the rights to equality and freedom from harassment for Trans people and their allies.

    WhatDoTheyKnow’s site policies prohibit posting information that is unlawful, harassing, defamatory, abusive, threatening, harmful, obscene, discriminatory or profane.

    But the issues that this use of our service has raised about what should and should not remain on the site are not straightforward. They present a challenge to our moderation policies, as we’ll explain in more detail.

    Background detail

    First, here are the facts.

    The post linked to above encourages people to request information from authorities who are Stonewall Diversity Champions.

    Stonewall, for those who don’t know, grew out of the campaign against Section 28 in the 80s, and now describes one of its missions as to ‘work with institutions to create inclusive and accepting cultures, to ensure institutions understand and value the huge benefits brought to them by LGBT people, and to empower institutions as advocates and agents of positive change’.

    This Legal Feminist campaign claims that forcing public bodies “to reveal the detail of their dealings with Stonewall” will have the effect of “putting some pressure on public bodies to withdraw from these schemes”.

    As a result, several hundred FOI requests have been submitted to a large range of authorities through WhatDoTheyKnow.

    How we moderate

    We operate a reactive moderation policy on WhatDoTheyKnow and only respond to issues when they are brought to our attention, or we discover them ourselves through the operation of the service.

    It’s unusual for us to know the motivation of people who use WhatDoTheyKnow to submit FOI requests. The site is, like the FOI Act, open to everyone (so long as they abide by our house rules).

    One of the core principles of the FOI Act is “Applicant Blindness”. The ICO’s guidance states:

    In most cases, authorities should consider FOI and EIR requests without reference to the identity or motives of the requester. Their focus should be on whether the information is suitable for disclosure into the public domain, rather than the effects of providing the information to the individual requester.

    We often see requests being made on our service which appear to be pursuing aims that we may agree or disagree with as an organisation, or as individuals; however, we want our service to be open to, and used by, as broad a range of people as possible. We don’t want to just provide a service to those who share our view of the world.

    Should these requests be removed?

    Our volunteer user support team has been asked to respond to complaints that the FOI requests made as part of Legal Feminist’s campaign are vexatious, hateful and should be removed — and our support team has been striving to approach these complaints in the same way that they approach other complaints about the usage of our service.

    As a charity, one of our objectives is to help citizens find out the information that they are entitled to have under the law.

    As per our house rules, where requests that are unlawful, harassing, defamatory, abusive, threatening, harmful, obscene, discriminatory or profane are drawn to our attention, we will take action. We will also often remove or redact material that is extraneous to the FOI request itself, if it is vexatious or falls foul of our house rules.

    In this case we reviewed two aspects of these requests to determine whether they contravened our house rules or contained vexatious or extraneous material – the body of the requests themselves and also the request titles, which each include a campaign hashtag.

    On careful consideration, we determined that the requests themselves do not fall into any of those categories, being requests for information, sent to a number of relevant authorities.

    We are satisfied that they are sufficiently focused as FOI requests, and appear to have a serious purpose, in that they have the aim of obtaining information from public bodies.

    Once the requests had been made, the authorities began to respond and to release the information sought, if they hold it, as they are (broadly) required to do by law within 20 working days. As per WhatDoTheyKnow’s functions, these responses are also published on the site for all to access.

    The requests have resulted in large amounts of information about how Stonewall works with public bodies being made easily available online. We believe that our site has a role to play in making that information available to everyone, enabling informed debate.

    Considering the request titles, we determined that the inclusion of a campaign hashtag in the title is extraneous to the purpose of requesting information from public bodies and at odds with the sufficiently focused nature of the requests – seeking to bring pressure on public authorities rather than simply focusing on the requirements of a clear request for information.

    For the reasons listed above, we have determined that these requests can remain on the site; however, we have removed the extraneous campaign hashtag from the title of each request.

    Campaigning activity on our site

    Whilst we very much support campaigners making use of their rights under FOI through our service, as per our current policies, WhatDoTheyKnow is not a platform for promoting those campaigns or a particular point of view. In other instances where our attention is drawn to extraneous material in correspondence we remove it, and we have taken the same approach here.

    Image: Ricardo Gomez Angel

  5. Don’t let the auto-responses worry you

    We’re seeing increasing instances of misleading information in authorities’ auto-responses, or standardised replies, to Freedom of Information requests.

    Automated responses can be useful: they are an additional assurance, on top of our green tick, that your request has been received by the authority. Used well, they might point the request-maker towards commonly-requested information, for example, or give some indication of current service levels.

    But some authorities are including statements within their canned text that could cause concern or confusion for people making requests. Let’s take a look at four of the most common examples.

    “Please use the form on our own website” 

    Reading Borough Council’s auto-response says:

    “The process to submit Freedom of Information Act requests has changed to an online request form via Reading Borough Council’s website. This email address will no longer be used to log and respond to FOI requests from the 1st March. Please re-submit your request via the website. […] If you do not process the request via the website, your request will not be actioned.”

    And this response from Bury Council states:

    “In reply to your email regarding Freedom of Information, if the information you require cannot be found/or is not publicised on the Council’s website you will need to make a formal FOI request which can be done by using the online form at www.bury.gov.uk/foi

    Please use this form so that we have all the relevant information in order to reply to your request, we will also acknowledge your request following completion of this form.”

    Both examples are displaying poor practice: requests are valid no matter how they are sent to a public body, as long as they:

    •  are in writing
    • state the name of the applicant
    • provide a means of correspondence
    • describe the information sought .

    Requests should be accepted whether made by letter, email, or even Twitter, and the authority has no right to oblige you to use their preferred channel — and, as it happens, ICO guidance explicitly recognises WhatDoTheyKnow as a valid means of requesting information under FOI.

    Some authorities reference their web form in their auto-response, but then go on to respond to the request anyway — better than not responding, but not ideal, either.

    In either case, we’d suggest following up by responding to the authority, citing our help page for FOI officers, and asking for an acknowledgement that they’ll process your request as they are obliged to by law.

    “We require confirmation of your identity”

    In this auto-response, Leeds City Council says:

    “Please note in order to process your request, we require confirmation of your identity via a copy of one of the following forms:
    – Driving Licence
    – Passport
    – Birth Certificate
    – Council Tax bill
    – Utility bill”

    Leeds aren’t the only body to automatically mention a ‘requirement’ for confirming the identity of the request-maker in their responses. But in fact, ID is rarely called in, and as you can see in this example, the authority went on to process the request once the citizen had provided their full name.

    Even that may have been unnecessary, as our FAQs say:

    “Technically, you must use your real name for your request to be a valid Freedom of Information request in law. See this guidance from the Information Commissioner (October 2007). However, the same guidance also says it is good practice for the public authority to still consider a request made using an obvious pseudonym.”

    Read the FAQs further to find out more about using a pseudonym to make FOI requests.

    “We may charge a fee for the information requested”

    Auto-responses like this one from King’s College Hospital NHS Foundation Trust very commonly include a clause saying that they have the right under the Act to charge for the provision of information:

    “As a public authority, the Trust may charge a fee for the information requested. Any fees are calculated in accordance with the regulations issued under the Act. If your request generates a fee payment, I will inform you at the earliest opportunity and provide an estimation of costs.”

    As we explain in our FAQs, making an FOI request is almost always free, and all the more likely to be so when conducted digitally:

    “Authorities often include standardised text in their acknowledgement messages saying they “may” charge a fee, which, understandably, can be a little frightening. Ignore such notices. They hardly ever will actually charge a fee.

    “Most of the activities that authorities can charge for, such as photocopying, and postage, don’t usually apply to requests made via WhatDoTheyKnow, which are all conducted via email. Additionally, a public body can only charge you if you have specifically agreed in advance to pay. See more details from the Information Commissioner.”

    “We may charge for re-use”

    We’ve recently had a couple of users getting in touch about responses stating either that information provided should not be reused because it is copyright, or that there may be a fee for reuse.

    For example, this response from Cleveland Fire Brigade states:

    “Please note that information supplied in response to the Freedom of Information Act requests provide data for inspection by the enquirer, but does not give automatic right to reuse the information contained in this response which is subject to copyright and is not licensed for reuse including marketing.”

    More nuanced responses sometimes point out the difference between use for commercial purposes (disallowed) and use for academic research or journalism (permitted): in this example from Corby Borough Council there is also mention of a fee for such usage:

    “Please note that although this information has been released to you, this does not automatically give you the right to reuse the information. Reuse is defined as ‘the use by a person (or company) of information held by the Council for a purpose other than the initial purpose for which it was produced’. With the exception of non commercial research and private study, any other reuse of information (including the posting of material on a website or distributing printed copies at a meeting) may require a license from the Council, which will be subject to a fee. For more information, or to apply for a ‘Reuse of Public Sector Information’ license you can visit […]”

    Our stance on the reuse of information can be seen in our FAQs:

    “Authorities often add legal boilerplate citing the “Re-Use of Public Sector Information Regulations 2005”, which at first glance implies you may not be able do anything with the information. They also sometimes put copyright notices on material.

    “Careful scrutiny of the legislation, however, shows that you are at liberty to write articles about the information, summarise it, or quote parts of it. It’s WhatDoTheyKnow’s belief that you should feel free to republish the information in full, just as we do, even though in theory you might not be allowed to do so: our policy on copyright explains why.

    “If the information you have received is Crown Copyright then you are able to reproduce it under the Open Government Licence but there are some conditions — check that link for more details.”

    Plus, since anyone in the world can request the same information, we consider trying to restrict it in this way to be misguided.

    So there we are: we hope that this blog post will go some way towards reassuring you if you receive responses like these. And, if you work at an authority, maybe it will encourage you to re-examine your automated messaging so that it is both accurate and helpful for those requesting information.

    Image: Tonik

  6. Reforming FOI in the UK: policy paper launch

    Thanks to everyone who attended the launch of our Research department’s policy paper this week.

    Open Democracy’s Peter Geoghegan and Open Rights Group’s Jim Killock joined us at the event for a fast paced discussion of the problems with FOI we’re all seeing in the current climate, and to what extent the proposals in our paper would remedy them.

    At times, the chat box  was so lively and knowledgeable that it felt like we’d convened the entire UK FOI community, but we know that isn’t quite true, so here’s the video for those that couldn’t make it:

    We’ve also answered the most relevant of the questions that were posed by our attendees, and you can see the responses here. Thanks, too, to Open Democracy for reviewing the paper in this thoughtful piece.

    Alex Parsons, who led on the research, has a handful of side explorations that didn’t end up in the final paper:

    And finally, if all this talk of FOI has awakened your desire to do more around the topic, well, we have just the job opportunity for you.

  7. Network Rail: how accounting definitions of control can expand FOI/EIR coverage 

    Exploring the history of expansions of FOI to private operators for our report on Reforming FOI led to trying to understand the history of how Network Rail became subject to FOI and EIR. This blog post explores how in very niche circumstances, the highest information court is the Office for National Statistics. 

    Network Rail is a body that owns and manages the infrastructure of most of the railway network in Great Britain (England, Scotland and Wales). As such, it holds information of potential public interest, but its status under Freedom of Information (FOI) and the Environmental Information Regulations (EIR) has been contested. A 2006 ICO decision concluded that Network Rail was not a public authority for the purposes of FOI (FER0071801 /FER0087031), but was for the purposes of EIR. This decision was overturned by the Information Tribunal (EA/2006/0061 EA2006/0062) in 2007, who held it was not a public authority for the purposes of EIR either. These decisions are now mostly irrelevant as in 2015 Network Rail became unambiguously a public body subject to FOI and EIR, and was added under s.5 to the FOIA schedule. The complication is that this change was not a political decision, but was effectively decided by the Office of National Statistics.

    When implementing the 2010 European System of Accounts (ESA10) in 2014, the Office of National Statistics (ONS) retroactively reclassified Network Rail as a “central government controlled, nonmarket body classified as part of the Central Government sector”, and as having been so since 2004. This did not result from any new understanding of facts, but ESA10 included several new tests of government ‘control’ of an organisation: the ‘degree of financing’ and the degree of ‘risk exposure’. Previous tests (appointment of officers, provisions of enabling instruments, contractual agreements) had not concluded that Network Rail was government controlled but these new tests changed that picture.

    The ‘degree of financing’ test required the government to ‘fully or close to fully’ fund the body for it to count as government controlled, this was not the case with Network Rail. The second test of risk exposure is sensitive to the question of who holds debt for the organisation. In this case, ONS argued that the debt was guaranteed by the Department for Transport, and there was an effective statutory obligation for the government to step in if Network Rail was to collapse. This by ESA10 criteria made Network Rail government controlled and part of the public sector. The reclassification was announced in 2014, and the new framework agreement between Network Rail and the Department of Transport agreed that Network Rail should be subject to Freedom of Information (1.15). While the body was added under section 5 of the FOI Act (rare), this order is in other respects similar to the frequent amendments made under section 4 as it reflected a change in ‘the public sector’ rather than including non-public sector bodies fulfilling a public function under the Act.

    Given accounting change means that retrospectively Network Rail should be seen as part of the government accounts in 2007, does this have any impact on the underlying logic of the Information Tribunal decision that it was not subject to EIR at this time? In this case, the Information Tribunal did consider the degree of government control through the same test of board appointment and public funding that the ONS similarly considered Network Rail to ‘pass’. It did not consider the question of where the debt is guaranteed, but this would have been a novel approach. This wider idea of government control might be useful in future questions of examining government ‘control’ of an organisation for EIR purposes. However, subsequent decisions by the Upper Tribunal have suggested a strict definition of control as meaning “no genuine autonomy”, creating a high bar for a control based argument. The debt test of control is an inversion of the typical control argument. The organisation may (like Network Rail) have fairly clear operational autonomy but the government does not have autonomy because it holds all of the risk and none of the decision-making power. This is a situation that the public accounts (and good governance rules) should seek to correct but may not meet the strict test of control.

    This more general idea of independence from government was a supporting part of the Information Tribunal’s argument and not the key argument. The main difference between the Information Tribunal and ONS arguments is this question of what would happen if Network Rail did not exist. The Information Tribunal argue that the services provided were not necessarily a public function, as “[i]f [National Rail Limited] did not perform these functions, they would be performed by some other similar body, not by central government”. In contrast, the ONS’ position was that the Department of Transport was on the hook both on the debt guarantee and through the Railways Act 2005 maintaining an older responsibility to “protect the interests of users of railway services”. This is interpreted by ONS as implying the government would need to keep the railways operating as “that government could allow Network Rail Ltd to fail while stepping in to support and protect the wider rail industry seems questionable, given that no one else is bearing any significant financial risks in relation to Network Rail”[1]. The evaluation of who holds the financial risk questions the Information Tribunal’s premise that another similar body rather than central government would perform the functions of Network Rail. As Network Rail’s functions were only possible as a result of substantial arm’s length support from the central government, the same would be true for any replacement organisation and so the central government is not a disinterested party. This undermines the argument about lack of control, but it was just one supporting argument. It is unclear if the approach would have led to a different decision, but it seems unlikely.

    In the niche situation that government control is a result of risk exposure, the Network Rail case shows the Information Tribunal and Upper Tribunal are not the only possible avenue. A  large and significant organisation that was judged to not be subject to FOI and EIR is now retrospectively understood to have been part of the government accounts throughout the whole period. Accountancy arguments of control may or may not convince the courts, but they only need to convince the accountants.

    Footnotes:

    Header image: Photo by Felix on Unsplash

     

  8. FOI and appeals to the regulator

    Following our report into Reforming Freedom of Information in the UK, there were several pieces of research that didn’t fit inside the final report. This exploration of differences in outcome and response times is one of them. 

    Freedom of information law in both Scotland and wider UK jurisdictions allows requesters who have had information withheld to request an internal review, where the authority is asked to reassess their original decision. This is a process that frequently changes the outcome. Based on data in Scotland, 40% of internal reviews result in some form of new information being released, and based on the UK central government roughly 25% of internal reviews lead to more information being released.

    After internal reviews, requesters can appeal exemptions (or complain about delays in response) to the regulator. In Scotland this regulator is the Office of the Scottish Information Commission (OSIC), while in the rest of the UK this regulator is the Information Commissioner’s Office (ICO). In response to appeals, the ICO can issue a decision notice on whether an authority has properly complied with the law, and if not, how to rectify the situation.

    In general,  the OSIC is more likely to rule in favour of information disclosure than the ICO. Building on previous analysis by OpenDemocracy, in the 2015-2019 time range 53% of ICO decision notices fully upheld the original decision of the authority, whereas for the equivalent time range only 34% of OSIC rulings were fully upheld. The average time from complaint to decision notice was 120 days for an ICO complaint and 140 for an OSIC complaint. For OSIC decision notices, decisions that found in favour of the authority on average took longer (97 as opposed to 126 days), while for the ICO the reverse was true but with a smaller difference — decisions in favour of the authority took less time (120 as opposed to 125 days). In both cases, decisions that led to partial results took longer.

    Chart showing differences in appeal outcome for different regulators. In table below.

    Diagram 1 – Decision notice outcomes for each regulator

    Chart showing difference in time for regulator to respond. In table below.

    Diagram 2 – Average days taken to reach different conclusions by different regulators.

    OSIC ICO OSIC (time taken in days) ICO

    (time taken in days)

    For applicant 39% 28% 97.27 125.73
    For authority 34% 53% 144.40 119.86
    Partially upheld 27% 19% 198.60 141.28

    Table 1 – Decision notice outcomes for each regulator

    There are several different explanations for these differences. It may be that the stronger prejudice threshold in FOISA leads to more decisions in favour of the applicant, or it could reflect a different attitude of the regulator in how they approach decisions. Regardless of the mechanism, a typical complaint to the OSIC is more likely to result in a change to the decision, than the typical complaint to the ICO.

    In both contexts, ministers have the ability to override the decisions of the Information Commissioner. This power is more restricted in Scotland, relating only to information of “exceptional sensitivity” that has been requested from the Scottish administration. This power has been used multiple times by ministers in rUK but has not been used in Scotland.

    Header image: Photo by Monty Allen on Unsplash

  9. What are environmental information requests and how do they differ in Scotland?

    Following our report into Reforming Freedom of Information in the UK, there were several pieces of research that didn’t fit inside the final report. This exploration of differences in outcome and response times is one of them. 

    The right to access environmental information in the UK is the result of the implementation of an international convention (Aarhus Convention 1998) to provide greater access to environmental information, public participation in environmental decision making and a legal framework that allows challenge to decisions that run against the above. There are separate regulations creating the right for EIRs in Scotland (Environmental Information (Scotland) Regulations 2004) and rUK (Environmental Information Regulations 2004). Unlike FOI there are no substantial differences in the legal basis of EIR requests in Scotland. In both cases, it is a local implementation of directive 2003/4/EC of the European Parliament and of the Council and exceptions and time scales are the same in both jurisdictions.

    The key differences are:

    • EIR applies to a narrower range of information than FOI.
    • EIR applies to more types of organisations than FOI.
    • EIR requests have a higher bar to rejection.

    EIR information is a subset of FOI information[1] but a different set of exceptions apply and all exceptions include a public interest test. Authorities have to pass a harder test to withhold information in general. For emissions data, there are even fewer exemptions that can be used to withhold information. Data on usage in Scotland suggests that this leads to a higher rate of information being initially granted, and that appeals against use of exceptions are more successful.  79% of EIR requests yielded at least some of the requested information, compared to 75% of FOISA requests. There is also a slightly higher success rate for internal reviews for EIR requests. In 57% of EIR reviews the original review was upheld, compared to 60.4% in FOISA that were wholly/partially upheld. Direct comparison is difficult as by definition they are requests for different kinds of data, but EIR requests do seem to be more likely to return the information requested.

    The regulations governing environmental information requests (EIRs) entered into force at the same time as the respective Freedom of Information Acts, but there are important differences between the two frameworks. The regulations apply only to Environmental Information, and so cover less information than FOI law does, but also bring new organisations into scope that are not covered by FOI laws. For instance, the ICO found in early 2020 that Heathrow airport was subject to EIR as it had functions entrusted by law. Bodies that carry out aspects of public administration are subject to EIR, but may not be to FOI. On the other hand, bodies that are only partially covered by the Freedom of Information Act may be exempt from EIR requests (for instance, the BBC).

    Differences in Scotland

    As in rUK, the definition of a Scottish public authority is wider under EIR than FOISA. This includes publicly-owned companies and those more generally under the “control” of a public authority. There are two points of distinction between the UK and Scottish legislation around what is covered. The first is that private bodies added under s.5 of the FOI Act are also explicitly added into coverage of EIR (the equivalent section in the UK says that inclusion under s.5 does not mean a body is subject to FOI). The second is a smaller point of distinction that the UK EIR reflects the language in the European directive that “any other body or other person, that carries out functions of public administration” are subject to EIR, but this is not present in the Scottish EIR. The result is that UK case law elsewhere that is focused on the definition of public administration is less applicable in Scotland, whereas as the OSIC put it (page 10), “[t]he decisions issued in Scotland have therefore focussed on the definition of “control” rather than of “public administrative functions”. That said, issues of control are not ignored in rUK case law with an upper tribunal judgement arguing this could only be engaged when “an entity had no genuine autonomy”. This distinction is of interest, because there are clear examples of when a body has been seen subject to EIR in Scotland but has been held not to be in rUK.

    Through a combination of political decisions and OSIC decisions there are differences in equivalent bodies being subject to EIR in Scotland and rUK. Registered social landlords in Scotland were as of 2019 subject to EIR as a result of being added explicitly to FOISA, but the OSIC has held since 2014 that they were covered by EIR as they were under the control of the Scottish Housing Regulator. In the UK, the Upper Tribunal has ruled that similar registered social landlords in rUK are not “public authorities”. There are three possible explanations for this difference:

    • A different legal context – the presence of a defined test around public administration has led to a more binary view of the importance of control in rUK law, compared to a more nuanced approach taken by the OSIC in the absence of a public administration test.
    • A different regulatory context – the relationship between specific regulator and social landlord may be sufficiently different to pass “control” tests in Scotland that are not passed by the UK housing regulator.
    • A different oversight context – OSIC may have been mistaken in their control test, but was not legally challenged.

    This difference is mostly immaterial as Scottish FOI’s larger expansion to private organisations has made the difference on EIR irrelevant, but this reflects that differences in the practical availability of information rights can flow from for practicalities in regulation and oversight, as well as the law.

    Fees are an example of regulatory difference where information is more accessible under UK EIR. Both EIR and FOI/FOISA regimes allow for a cost to be attached to the provision of information but FOI has a minimum ‘appropriate limit’ before this is engaged, and so most responses are uncharged. EIR has no minimum limit, and so all requesters may be charged the (small) costs of providing the information if the authority has made their charging regime public. As EIRs in Scotland and rUK are regulated by different bodies, practical differences in regulation even where the underlying law does not differ.

    In a 2019 case, an ICO decision found that a ‘reasonable’ charge under EIR should effectively track the idea of an ‘appropriate limit’ in the Freedom of Information Act. The official guidance has not yet been updated to reflect this decision (through correspondence, this is still planned). The existing 2016 guidance did already argue that public authorities should ‘avoid routinely charging for all EIR requests’, but the equivalent OSIC guidance does not. The practical result of this is the ICO may uphold a complaint that Croydon Council should not charge a £50 fee for access to environmental information at all, whereas OSIC would agree that Glasgow City Council could charge £50 if this price was listed publicly. In practice, fees are rarely practically charged for EIR in Scotland but when the regulations are identical the dynamics of different regulators following different processes lead to differences in the practical implementation of EIR.

    For more information, OSIC have published details on the distinction between EIRs and FOISA in Scotland. Paul Gibbons’s series in the Freedom of Information journal is a useful guide to the practical differences between the two legal regimes in rUK.

    [1]: As FOIA and FOISA have specific exemptions for environmental data, in general requests that can be considered under EIR should be, rather than under FOI rules

     

    Header image: Photo by Gemma Evans on Unsplash

  10. Your chance to test out Projects, our newest tool for FOI

    Are you investigating, researching or gathering large quantities of data through Freedom of Information requests? Perhaps you’re a journalist, academic or NGO. We’re looking people based in the UK who’d like to try out our new ‘Projects’ feature for WhatDoTheyKnow Pro.

    Projects allows you to crowdsource the extraction of data from multiple (or batch) FOI requests made to multiple authorities. You can set up a project with a brief description of what it is and what you are hoping to achieve, and some tasks that volunteers can complete to help you with this aim (like categorising responses, or answering questions about the data released).

    Once that’s done, you can set it up to invite volunteers, who can help you to extract all the information you need from the released responses.

    You’ll be able to download your volunteers’ input as a spreadsheet, meaning analysis of the data is much quicker and easier — so you can get on with the task of forming conclusions and writing up your findings.

    What we’ll need from you

    Projects is still in its nascent stage, so we need feedback from our testers. This will help us improve the service and tailor it to users’ needs, based on real life use cases.

    Right now, we handle the setup and importing of the requests you want to work on manually (that is, our developers have to do it) — but we’re working on improving this aspect, and your feedback will be crucial in shaping the direction our development takes. We’re also looking for general comments, once you’ve used the service, on what’s useful and what’s missing; what you tried to do but couldn’t, and what made things easier for you.

    If this sounds interesting, please get in touch at pro_team@whatdotheyknow.com. We look forward to hearing from you!

    Image: Jessica Lee