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.
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
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”
“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.”
- 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
– 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.
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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:
- Network Rail: how accounting definitions of control can expand FOI/EIR coverage
- FOI and appeals to the regulator
- What are environmental information requests and how do they differ in Scotland?
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.
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”. 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.
- 1: Document 2.1 in this FOI
Header image: Photo by Felix on Unsplash
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.
Diagram 1 – Decision notice outcomes for each regulator
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.
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 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.
: 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
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 firstname.lastname@example.org. We look forward to hearing from you!
Image: Jessica Lee
The right to access official information is fundamental in a healthy and vibrant democracy. Freedom of Information (FOI) legislation is a vital tool in research, journalism, and in supporting citizens and groups to hold their public institutions to account. In the UK, the Freedom of Information Act has now been in operation for over 15 years. Campaigns against adding new restrictions to Freedom of Information are generally successful and reflect the fact that FOI has become part of the constitutional settlement — but at the same time positive changes are resisted.
The Freedom of Information Act is static while the ways in which public services are delivered are changing. The regulator’s FOI work is underfunded and as such there is more focus on the data protection duties within the regulator’s portfolio. The picture of change that comes out of central government statistics is not encouraging, and there is not the data available to understand if this is a broader trend. Freedom of Information is unlikely to be abolished, but there is a danger of it sliding into obsolescence. Over time new classes of public body may never be covered by the Act, more public services are likely to be delivered by private sector organisations, and the legal rights that exist are less able to be enforced by an under-resourced regulator.
Devolution has led to a diversity of approaches where different parts of the Union can learn from useful decisions made in others. In our new paper, we take advantage of the existing (and potential for future) devolution of Freedom of Information legislation to suggest changes that learn from good examples in different systems. This has led to four sets of recommendations, based on transferring practice from one UK-based system to another:
Improving statistical knowledge of how FOI works in the UK – The Office of the Scottish Information Commissioner has built a comprehensive and invaluable picture of the functioning of FOI in Scotland by collecting statistics on how requests were received and processed by authorities. In the UK, this coverage is limited to central government and a rarely followed requirement that larger authorities publish their own statistics. The majority of FOI requests made to public authorities in the UK are not covered by public statistics, making the regulator (and the interested public) blind to trends over time, and less able to understand whether FOI is functioning well or not. We recommend the Information Commissioner’s Office (ICO) act as the host of a central repository.
Separating the Information and Data Protection components of the Information Commissioner – The UK’s Information Commissioner has two major roles: data protection and access to information. The first of these roles has always been larger, but its scope and importance has only increased over time. Separating the access to information function and transferring oversight and funding from a government department to Parliament would help solidify the role’s independence and set it up to deal with both current and future challenges.
Improving the operation of FOI and EIR across the UK – Taking examples of different approaches in the UK and Scotland, we recommend both regimes should adopt best practice from the other. This includes differences in philosophy around the strength of exemptions and extension to private operators, but also different practical approaches such as clearer rules on time scales, administrative silence, and harmonising rules on fees for FOI and EIR.
Exploring new paths for Welsh Freedom of Information – Currently the Welsh Parliament/Senedd has the ability to diverge in a similar respect to Scotland and set up a different system that applies to Welsh public authorities. We explore the implications of this and recommend a mini-divergence, where the Senedd legislates to give the Welsh Government the ability to add private organisations executing a Welsh public function to coverage of the Act.
You can find more information in the full report.
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WhatDoTheyKnow is kept up and running by a dedicated team of volunteers. Do you have the time or skills required to help? If you think you might like to lend a hand, read on to see what they do on a daily basis, as well as some examples of desired site improvements.
One of the volunteers’ many tasks is to maintain what we believe to be the largest existing database of public bodies in the UK (38,362 of them…and counting).
This requires quite a bit of time and effort to keep up to date: email addresses change; bodies merge, get new names or just cease to exist.
The turnover of the financial year always brings an extra slew of required changes; presumably many bodies like to use this date for a nice neat cut-off in their records. So, to give a snapshot of the sort of admin work the volunteers undertake, let’s take a look at every task April 1 brought the team this year.
Thirteen new authorities were added. Some of them are so new that they haven’t yet had any FOI requests made through the site. Perhaps you’ll be the first?
- The Hampshire and Isle of Wight Fire and Rescue Service was formed through the merger of two existing services.
- 39 NHS Clinical Commissioning Groups became defunct, and nine new bodies were added:
- NHS North West London Clinical Commissioning Group
- NHS Kirklees Clinical Commissioning Group
- NHS Coventry and Warwickshire Clinical Commissioning Group
- NHS Black Country and West Birmingham Clinical Commissioning Group
- NHS Shropshire, Telford and Wrekin Clinical Commissioning Group
- NHS North East London Clinical Commissioning Group
- NHS Frimley Clinical Commissioning Group
- NHS Hampshire, Southampton and Isle of Wight Clinical Commissioning Group
- NHS Bedfordshire, Luton and Milton Keynes Clinical Commissioning Group
- We also marked 2 NHS Trusts as defunct and added one successor: the University Hospitals Sussex NHS Foundation Trust.
- We’ve added the new UK Health Security Agency, which has been set up to work on public health threats, combining elements of Public Health England with NHS Test and Trace and the Joint Biosecurity Centre.
- All district, borough and county councils in Northamptonshire (eight in total) were abolished on 1 April to be replaced by two new unitary authorities:
When we add a new body that replaces an existing one, we also make sure that no-one can make requests to the now-defunct authority — while at the same time, requests made to it in the past, along with any responses, are still available to view, and requests in progress can still be followed up.
We also set up page redirects to the new body, and replicate all of the metadata that helps WhatDoTheyKnow’s system work behind the scenes. It might be a bit of a faff but it’s worth the effort to keep things running smoothly.
Many thanks to volunteer Martyn for completing the lion’s share of the work listed above.
How you can help
If you know of any other changes that haven’t been reflected on the site, please do let us know.
If this post has reminded you how much you enjoy admin, consider joining the team! We always need more volunteers to help us run the site, keep the database up to date, deal with requests to remove material, and support our users. Find out more here.
There are some specific tasks that are top of our wish-list, too:
- We’d love to do some intensive work on our list of parish level councils to make it comprehensive — this could mean a few people working systematically through a list, or several checking how well their local area is represented on WhatDoTheyKnow. Local democracy matters, more so than ever, and transparency is important for bringing happenings to light (as events in Handforth have recently reminded us!).
- We have ambitions to organise our bodies geographically, showing bodies which operate in particular areas, or showing maps of the areas covered by bodies. See this ticket for a discussion of some of the possibilities which we haven’t had the resource to completely finesse.
mySociety has experience in mapping UK governmental areas, but we’re yet to integrate that expertise into WhatDoTheyKnow — do you have the required coding skills to make it happen?
- We’d like to do more organising of the bodies by their function too, helping guide users to the appropriate body fo their request.
If you have skills in web-scraping, spreadsheet wrangling, database maintenance or other relevant areas and think you can help us — please let us know!
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Image: Anastasia Zhenina
People making FOI requests are sometimes accused of embarking on a ‘fishing expedition’ — looking for news stories without a clear idea of what they will dredge up — but a recent request on WhatDoTheyKnow asked for something very specific.
“Could you state”, it asked, “the number of passports issued to British fish since Brexit proper began on 1st Jan 2021?”.
This request was not as fishy as it might at first appear: it was based on a statement in Parliament. On 14 January, commenting on Brexit and its impact on the fishing industry, Leader of the House Jacob Rees-Mogg said:
“The key is that we have our fish back: they are now British fish, and they are better and happier fish for it.”
Ordinarily, we discourage what might be seen as frivolous use of FOI via our site, but as it happens this request was processed by the authority without complaint. They replied in a straightfaced manner:
“Her Majesty’s Passport Office does not hold the information which you have requested. Animal classification is not captured as part of the passport application process.”
While this might not have been exemplary use of our service, citizens have the right to make requests that clarify puzzling statements from our elected representatives, or to simply highlight that they are incomprehensible.
One of the team says, “It’s understandable that the public might ponder, ‘what did he really mean?’ It could be something of a floccinaucinihilipilification, but it might also relate to a ‘catch certificate’, or one of the many other new items of bureaucracy that have appeared in recent months.”
Another WhatDoTheyKnow team member added, “My reading of that response is that the Government aren’t sure that everyone with a British passport is actually human… and some proportion might well in fact be fish.”
We, however, think that’s something of a red herring, and we’d advise that anyone seriously wanting to surface information about piscine issues might have more luck sending a request to DEFRA, CEFAS, or the Animal and Plant Health Agency.
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Image: Fredrik Öhlander