In May 2019 Pressure Vessels, a report from the Higher Education Policy Institute (HEPI), sought to understand increasing levels of stress on the mental health of academic staff.
Dr Liz Morrish, a Visiting Fellow at York St John University, and Professor Nicky Priaulx, a Professor of Law at Cardiff University used Freedom of Information to understand the changing state of staff bodies’ mental health, analysing the demand for counselling and occupational health services within HE.
The first Pressure Vessels report focused primarily on academic staff, while this follow-up broadens the brief to incorporate professional services staff.
“Professional services staff are often marginalised in discussions about the higher education workforce, despite the significant roles they play. They are also more likely to be vulnerable to restructuring and redundancy,” say the study’s authors.
Of course, like every other sector in society, Higher Education has experienced a severe change in working conditions due to the global pandemic. But as Dr Morrish points out, “higher education staff and managers would be unwise to disregard the additional pressures this will bring. Like the virus, workplace stress is here to stay and must be addressed.”
The data in Pressure Vessels II was obtained by requests for information made to 17 universities, on staff numbers accessing counselling and referrals to occupational health for the 2016/17 and 2017/18 academic years.
The first report inspired Sheffield lecturer Tom Stafford to plot the figures onto graphs for each institution — he also offered to make graphs for any more data that could be obtained from other HEIs.
We are pleased to see WhatDoTheyKnow being used as part of a campaign to understand conditions and press for improvements. It’s just one more example of how our right to information can be used for the greater good. Read Pressure Vessels II here.
Image: Nik Shuliahin
The Coronavirus (COVID-19) pandemic is having an impact on response times to Freedom of Information requests. Please see this information from the Information Commissioner’s Office, and the Scottish Information Commissioner. You can contact the WhatDoTheyKnow team if you have any questions about your requests.
Note: There is now an update to this post, which can be found here.
At times of crisis, the need for factual information is clear — and Freedom of Information is the lawful mechanism by which we can demand it. And yet, it is becoming increasingly obvious that across the world, rights to information are being eroded, by design or by circumstance, as governments and authorities deal with the effects of COVID-19.
Rather than restrict access to information, at this time bodies should be moving towards proactive release, and any necessary restrictions that are put in place must be temporary and time limited.
Keeping our rights intact
At WhatDoTheyKnow we are, of course, resolute that we must not allow the current situation to cause lost ground in the right to hold our authorities accountable.
Nonetheless, we do of course recognise the difficulties involved for authorities in keeping a service running at a time when the workforce may be depleted, staff may be working from home and not able to access physical files, and resources may be quite rightly being prioritised on the frontline of the fight to keep the population safe.
We call for a common sense approach that balances this new working environment with the enhanced need for public information:
- A recognition that not all authorities and not all departments will be equally affected by the current crisis. While it is clear that those which are working in the areas of health, policing, and other frontline activities are likely to be the least able to dedicate resources to FOI, other authorities/departments should do all they can to keep their channels of information open and active.
- In the spirit of transparency and public interest, all authorities should commit to the proactive publication of information, without the need for it to be requested. This should especially apply to decisions being made around public health, responses to COVID-19, and changes to rights and freedoms of citizens; and the data informing these decisions. Proactive publication requires fewer resources than responding to individual requests as they arise.
- Measures that are put in place to relax the right to information during this fast-moving environment must be recognised as temporary and reassessed at regular frequent intervals. When the health crisis has passed, they must be removed and the right to information must be restored to the same, or better, status as previously enjoyed by citizens.
Information is vital
More than ever, now is the time to ask questions: what plans do our governments have in place to tackle this unprecedented threat? What research is guiding their actions? How are they meeting targets for testing, for vital equipment, for hospital beds?
Or, just as importantly, as Julia Keseru asks in this piece: how are the most vulnerable in society being impacted by the broad stroke decisions being implemented?
In the UK, the government has stated a commitment to transparency: “In fast moving situations, transparency should be at the heart of what the government does”. But the gaps in existing data are noted by Jeni Tennison here, alongside a call for private companies to do what they can.
And at the same time, we’ve seen a relaxation of authorities’ obligations under the FOI Act in recognition of stretched resources and depleted staff.
These have taken the form of a notification from the ICO that they will be more lenient towards authorities providing late responses, and messages from authorities themselves that they will be providing a cut-down service.
Guy’s Hospital, for example, is understandably responding with a plea for people to consider whether their request is really required; while Bournemouth, Christchurch and Poole Council are auto-responding: “The Council is not currently in a position to respond to your request. This is as a result of ensuring that all available resources are diverted to support the community and we can continue to deliver essential and priority services during the unprecedented crisis presented by COVID19. Please resubmit your request at a later date and not before 8th June“.
Scotland’s emergency bill, voted through yesterday, massively extended the deadline for responses despite intervention from campaigners and MSPs. As a result, WhatDoTheyKnow’s auto-prompts when an authority has not responded within the mandated timeframe are currently wrong, and we’ll be looking at correcting this as soon as we can. [Update: We now account for the new law in Scotland, but there may be a few existing requests or authorities that we’ve missed out, so please get in touch if you have questions about your request.]
Information doesn’t just allow us to hold our governments to account over the actions they take during this crisis. As Newspeak House’s Corona Virus Tech Handbook has vividly demonstrated, shared knowledge allows collaboration, in some cases across borders, that may literally save lives.
A global lapse
Meanwhile, in countries around the world, the reaction has ranged from New Zealand’s ‘pro-transparency’ response, documented along with less hopeful dispatches from other countries in this post from Global Investigative Journalism Network, to Hungary’s worrying move to rule by decree.
At WhatDoTheyKnow, we stand by our international community of friends and colleagues who value the citizens’ right to know.
Access to Information and journalists’ networks are monitoring the erosion or upholding of our rights across the world, and will act to preserve them where we can.
Image: Dimitri Karastelev
Stuart Lawson is a librarian, one of the editors at the Journal of Radical Librarianship, and a part of the open access movement which advocates that research outputs should be distributed for free and online, with an open license — for the good of all.
So it should come as no surprise to learn that some of Stuart’s recent research, informed by Freedom of Information requests to the UK’s Higher Education Institutes, has focused on research journals — and specifically, how much institutes are paying for subscriptions. You can see the requests here, the data released in this spreadsheet, and the resulting report here.
The study collected details of payments made by HEIs for access to academic journals from 2017-2019, focusing on ten publishers. The research team discovered that the total expenditure was more than £330 million.
We spoke to Stuart and asked for some background to this FOI-based investigation, beginning with an explanation of the original motivation behind it:
“Open access publishing means that research is available to everyone, but there are debates around how that model can be paid for. And since there is currently a mixed system where some publications are open access and some require subscriptions to access, libraries are continuing to pay a lot of money for subscriptions while also trying to find ways to fund open access.
“I am a librarian who wants all research to be published open access rather than behind a paywall, so I felt that it was important to know the financial costs of the current system.
“Previously, the amounts were unknown. It’s impossible to have conversations about the appropriate cost of scholarly publishing if we don’t know what those costs are in the first place!”
The need for FOI
Freedom of Information is, of course, a practical way to obtain data from public authorities, and to build up a nationwide picture. But in this case, it was vital.
“Using the legal tool of FOI was the only way to get this data, as institutions were not voluntarily releasing it.
“One publisher, Elsevier, even had a clause in the contracts signed by libraries that forbade them from telling anyone how much they were spending, unless they were required to via an FOI request.
“These ‘non-disclosure’ clauses are common worldwide in publisher contracts, but thankfully not widely used in the UK (except by Elsevier) because Jisc — the higher education body that negotiates most deals — have worked to remove them”.
Despite the reluctance that one might assume that this signified, Stuart says getting the required information was pretty straightforward once they’d submitted the FOI requests. In fact, the hardest part was the admin:
“A majority of HEIs provided the data promptly, although some refused in the first instance which meant I need to push back and sometimes requested an internal review of the handling of the request.
“Eventually most institutions provided the data, but the hold-outs caused a lot more work for me”.
Making requests in public
Why was WhatDoTheyKnow particularly suitable for this project?
“It was the best way that I knew of to make bulk requests to organisations. But more importantly for me, I wanted to make sure there was a complete public record of all responses so that when I compiled the data, others could verify it”.
That’s one of the reasons that WhatDoTheyKnow is set up to publish FOI requests and responses online, so we were glad to hear this.
And what is Stuart’s desired outcome from this study?
“For people to realise the high cost of subscription charges, and for libraries to question how much they are spending. And perhaps even cancel some of the deals and spend their money on enabling open access instead.”
It’s possible that this piece of research will be enough of an eye-opener to start making a change in this area. But Stuart’s realistic:
“I hope I don’t need to send these requests again in future years, but the situation is still moving quite slowly, so it might be necessary to use WhatDoTheyKnow once again!”
Image: Bruno Mira
This blog post is part of a series investigating different demographics and uses of mySociety services. You can read more about this series here.
When people make their first Freedom of Information request using WhatDoTheyKnow they are sent an email two weeks later, asking them to complete a survey. This survey has been running from 2012 and in that time has received 6,861 replies. Because this is an optional survey and not a requirement of making a request, this is a small proportion of the number of first time requesters in that time (around 3-4%). This response rate reflects that the survey is currently quite long and asks questions that, while more useful when the service was new, are now less helpful in understanding its ongoing impact.
As it’s unclear how representative this sample is of requesters of WhatDoTheyKnow, the overall results shouldn’t be read as authoritative of the user base. What is more interesting is how different groups of respondents use the site in different ways. The data from the surveys has been added to the explorer minisite, a research tool that uses chi-square tests to examine if there is a statistically significant difference in the distribution of responses.
Looking at the overall picture, the average age of respondents is around 45-54.
There were more than double the number of male respondents as female respondents. 17% of respondents said they had a disability. Disability is a broad category where self-identification can vary, which makes comparison to national figures difficult. However in 2011, 8.5% of the population of England and Wales were ‘limited a lot’ in their daily life as a result of a health problem of disability, while 9.3% were ‘limited a little’. This suggests that use of WhatDoTheyKnow is not broadly different from the national picture – however this could be disguising variation within different kinds of disability.
43% of respondents were working full time, 10% were working part time and 21% were retired. A majority (57%) were university educated.
On ethnicity, most respondents declared ‘British’ or ‘English’. 16% were part of a BAME (Black, Asian and minority ethnic) group. Because of the small number of responses over a large range of ethnicities, a second ‘reduced’ option was created by grouping responses that just presents BAME/Not BAME/NA. This would make general trends statistically detectable, but may also disguise trends when different ethnic groups have effects in different directions.
Over time there is a small number of trends. There is a slow rise in the number of female respondents – from 24% to 33% in 2019. There was statistically a larger proportion of BAME respondents in 2015 and 2016 (19-20%) and fewer in 2012-13 (13%). The number of respondents with disabilities does not show any significant differences between years.
BAME respondents are more likely to write to Education, Central Government and Other than the general dataset, and less likely to write to health, local government, emergency services, military services, and media and culture. BAME survey respondents make up 5% of requests to media and culture and 29% of education respondents.
Female respondents are more likely than male respondents to write to education and health authorities than the general dataset, and are less likely to write to emergency services, media and culture, transport, and military and security services. Female survey respondents make up 14% of requests to military and security services, and 40% to education.
Respondents with disabilities are more likely to write to health-related authorities and the emergency services than the general dataset, and less likely to write to transport and education. Respondents with disabilities make up 9% of requests to education authorities and 26% for health authorities.
Retired respondents are more likely to write to environment-related and local authorities, and less likely to write to central government and education. Retired respondents make up 7% of requests to education authorities to 33% for environment-related authorities .
Reversing the lens to look at one type of authority, respondents writing to education authorities are more likely than the general dataset to be female (but still majority male) and more likely to be part of a BAME group (but still majority white). They are more likely to be below the age of 24 and less likely to be above 55 than the general dataset and (related to that) more likely to be in education and less likely to be retired.
46% of respondents said they were writing on behalf of ‘all people in the community’. This group was more likely to be retired, less likely to be part of BAME group, but more likely to be part of a community group (but not a political group alone).
20% said they were writing on behalf of themselves/family as well as similar people.
14% said they were writing on behalf of all people — this group was slightly more likely to be earning less than 12,500, have excellent internet access, and more likely to be involved in political activity (less likely to be part of a community group), to have made FOI requests before, and to make lots of FOI requests.
13% said they were writing on behalf of themselves or family. This group has a spread on age, but is more likely to be older than 75 (and less likely to be 45-54) than the general dataset. 46% are still university educated, but this is less than the general dataset and this group is more likely to be have secondary or technical college qualifications, and slightly likely to be part of a BAME group than the general dataset (while still majority not BAME). This group is more likely to not be involved in groups or to previously have made requests.
Previous FOI use
The profile of a user who had never made a request before using the site is in many respects similar to other users. This group contains slightly more 25-34 year olds and those in full time education. They are more likely to be making requests where the information is mostly relevant for themselves/family or people similar and more likely to not be involved in community or political groups.
While this survey has found some interesting things about our users, it’s currently overly-long and has a much lower response rate than some of our comparable surveys. We’re looking at the best way of modernising the questions and survey platform to replace this survey, while maintaining continuity with some of the trends identified above.
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You may remember our recent post on the surveillance techniques in use by police forces, as investigated by the campaign group Privacy International.
Several of you tweeted or commented that you were concerned to read of these new technologies. Well, here’s a way that you can get involved in finding out more.
Sounds fluffy? The reality is a bit more chilling. Cloud extraction technology allows the police to gain access from a citizen’s mobile phone to cloud based services such as their email, browser activity, and social media. So, if you are stopped and your phone is examined then handed back, surveillance might not stop there. Even after the phone is returned, using this tech police can monitor your online activity on an ongoing basis, seeing what you search for, trawling through your social media posts, and even accessing your location data.
Whether or not you’ve ever been detained by the police, you might like to know whether this sort of surveillance is in action in your own local neighbourhood. And that’s where FOI comes in.
To make everything as easy as possible for you, Privacy International have used pre-filled FOI requests* and provided the wording you should include. You can also see which forces have already been contacted, so as not to waste time making duplicate requests. Here’s where to get started.
Camilla Graham Wood, a Legal Officer at Privacy International, is clear about the benefits WhatDoTheyKnow has brought to their campaigning: “Using WhatDoTheyKnow we have created a way for members of the public to quickly and easily contact their local police force and ask them about intrusive surveillance tech. We were able to embed this on our own website and to pre-fill certain boxes as well as adding a tag so we can follow the progress of the campaign.
“Engaging the public in this way shows the level of public interest in policing technologies and introduces those who might not have used Freedom of Information request before to this valuable transparency tool”.
*If you’re running a campaign and you’d like to know how to set up something similar, take a look at this blog post where Gemma explained it all, back in 2016.
Image: Gilles Lambert
We’ve recently made a small change to WhatDoTheyKnow. Now, if your request has resulted in a news story, you can add the link as a ‘citation’.
If you’re a journalist or a campaigner, we hope this is a useful way to give your stories some more readership (not to mention a nice inbound link from a high-ranked site for your search engine ratings).
And if you’re simply a citizen whose request was picked up by the press, there’s now a way to share how the information you’ve obtained fits into the news agenda.
There’s a benefit for the wider transparency community, too. We think that, in aggregate, these links will serve to show others just what a simple FOI request can do.
Requests often start off as nothing more than an inkling or a nagging question, but there’s always the chance that one of them will reveal important or interesting information, hitting the news, reaching a wider readership and — who knows? — maybe even changing hearts and minds. For big stories, it will be good to be able to create a permanent record of where it all began.
More broadly, when you use this feature you’ll be helping us to understand what sort of impact the site is having, too. We’re always keen to spot news stories based on WhatDoTheyKnow requests, but papers don’t always cite a source or link back to the site, meaning that our monitoring is often dependent on a manual search where stories look like they might have originated with one of our users.
How to add a citation
You’ll find the feature in the right hand column of your request page. Just click on ‘Let us know’:
…and paste the URL in:
If there’s more than one story, you can click ‘New Citation’ to add another one.
The way we’ve set this feature up, WhatDoTheyKnow users can add a citation to any of their own requests — but if you spot a news story that’s linked to a request that isn’t yours, please do contact the WhatDotheyKnow team.
They’ll assess it and input it if they find it to be valid. Our aim here is, of course, to prevent spammers from adding irrelevant links to the site.
Users of WhatDoTheyKnow Pro, on the other hand, have the ability to add citations to any request.
This work is one of the ongoing improvements that we’re working on thanks to a grant from Adessium.
Image: Kaboom Pics
A lie, as the saying goes, can travel halfway around the world before the truth can get its boots on.
That’s all the more so in the age of social media. Whether it starts as a misunderstanding, or a deliberate attempt to mislead, before you know it an untruth can be swept up to make a political point, used in arguments and believed by many — and never mind that there’s no factual basis to it.
In 2016, we pointed out a meme spreading false allegations about immigrants, and that the response to an FOI request on WhatDoTheyKnow was providing a way for people to challenge the post with facts.
Back then, the false rumour being spread was that immigrants were entitled to benefits payments far in excess of the reality. It came to our attention when we realised that the FOI request proving it wrong had become one of the most-visited pages on WhatDoTheyKnow that month.
And now, almost exactly the same thing has happened again.
One of the pages with the highest number of visitors in November was this request asking if people (specifically muslims) using their homes as places of worship are exempt from paying council tax.
The FOI response says “Such an exemption does not exist”.
A quick search reveals that this isn’t the first FOI request on this subject made on WhatDoTheyKnow. In fact, there are several, dating back to 2009, made by different users to a range of different councils.
In 2010 Leeds City Council responded to a request that said, “I heard an alarming rumour that newly built houses in Dewsbury in the million pound price bracket were claiming a large reduction in their council tax because one room was deemed a place of worship”.
The council said: “There is no provision within council tax legislation for discounts or exemptions from Council Tax for residential properties which have a place of worship”.
And in 2009, Cornwall Council responded to a similar request, “There is not an exemption from Council Tax for houses classed as a place of worship”.
We don’t know whether the people making these FOI requests were doing so as a way to challenge the meme’s false claims, or because they saw it and sensibly decided to reserve judgement until they knew the facts. Either way, it’s a great use of WhatDoTheyKnow and these responses will stand as a permanent reference point for anyone who wants to check the facts around this matter in the future.
UPDATE: After tweeting this story, we had a response from Andrew White who gave some further background from his experience on the Parliament petitions service:
We picked this up on the Petitions website as a Google Search alert – updated both this petition https://t.co/1Itmm0s8R2 and https://t.co/aPqIWYzX06 with a link to the Full Fact article. The recent spike had its origin in a Facebook video: https://t.co/bAzc4N1fBc
— Andrew White (@pixeltrix) December 19, 2019
In a terrifying example of how misinformation can be spread in the most unexpected of ways, as you can see in the Facebook video linked to in the tweet, a petition that led with the words Muslims who use their living area’s within their homes as a place of Worship, are exempt from paying Council Tax [sic] was identified by the Amazon virtual assistant Alexa as the most suitable information source for the question “Do Muslims have to pay council tax if they pray in their own homes?”.
Presumably the fact that the petition was located on an official government website gave it, in Alexa’s view, the credibility needed to cite it as a source.
Image: Climate Reality
We’ve previously written about how best to proceed when an FOI request has been refused, but when there isn’t a response at all that’s a slightly different problem. However, up until now, we’ve treated both in the same way. We’ve now made some changes to reflect the difference.
If you do receive a response, but feel it’s inadequate or that your request has been wrongly refused, there are two ways of contesting the outcome. The first is to ask for an internal review, where the request is reassessed inside the same authority (by a different team or person). The second is to appeal to the Information Commissioner’s Office (ICO).
To reflect this, our approach when providing prompts to WhatDoTheyKnow users has been an escalation ladder — suggesting people request an internal review, and then appeal to the ICO if still dissatisfied. However, as we learned when talking to the ICO earlier in the year, that this isn’t always the fastest route to getting a response.
An internal review is useful when disagreeing with a decision, but when the issue is that the statutory deadline for a response has passed, and follow-up messages haven’t been answered — a situation our colleagues at Access Info aptly refer to as ‘administrative silence’ — it can be better to complain directly to the ICO.
According to the statutory code of practice, a public body may take up to 20 working days to undertake a review, and so this route is likely to result in further delay, whereas an intervention by the ICO may have a faster result.
So when a request is overdue, our email prompt will no longer suggest that users might want to seek an internal review, but instead we suggest sending a follow-up message to the authority and note that they can appeal directly to the ICO.
However, if you have an issue with the actual decision of a request (for instance, disputing an exemption applied), internal review is the correct first port of call — and in a surprising amount of cases can be very successful. While we don’t have figures covering all kinds of authorities, for requests made to central government, 22% of internal reviews resulted in some change to the original decision (and 9% were completely overturned) and for local government this figure is between 36-49%.
Both internal reviews and appeals to the ICO can be effective methods at redressing disputes around Freedom of Information requests, but it is important to consider which is the right tool for the situation.
Image: Ümit Bulut
We’ve just come back from a heady couple of days in Oslo, where our AlaveteliCon event brought together those with a shared interest in the technology around Freedom of Information — in all, around 50 journalists, researchers, technologists and activists from 18 different countries.
As our Head of Development Louise announced in her opening words, AlaveteliCon has always been a slight misnomer, given that we’re keen to share knowledge not just with those who use Alaveteli, but with all the FOI platforms in our small but growing community — including MuckRock in the US and Frag Den Staat in Germany, both of whom were in attendance.
It was a timely event for us, as we embark on work to introduce our Alaveteli Pro functionality to newsrooms, researchers and campaigners across Europe, with an emphasis on encouraging cross-border collaboration in campaigns, research and journalistic investigations.
As well as picking up practical tips, we heard a variety of inspiring and instructive stories from FOI practitioners around the world; brainstormed ways forward in increasingly difficult political times; and shared knowledge on funding, publicity, site maintenance, and how to keep good relations with FOI officers.
Some of the most inspiring sessions came when delegates shared how they had used FOI in campaigns and investigations, from Vouliwatch’s Stefanos Loukopoulos explaining how they had taken their own government to court, to Beryl Lipton of MuckRock explaining why the government use of algorithms can have effects that are unforeseen, and indeed petrifying.
There was an affecting story from freelance journalist Mago Torres, who told us about a long campaign to map clandestine graves of those caught up in the war against drugs in Mexico; and from Camilla Graham Wood of Privacy International, on that organisation’s work to uncover some of the rather sinister but not widely known technologies being put into use by police services in the UK.
So much knowledge came out of these two days. We don’t want to lose it, so we’ll be making sure to update the conference page with photos, videos and the speakers’ slides as soon as they’re available. Meanwhile, you can follow the links from the agenda on that page to find the collaborative documents where we took notes for each session.
At the time of writing, a No Deal Brexit seems ever more likely. What exactly will that mean for the UK?
Attempts to answer this question have filled many column inches, hours of broadcast and endless tweets. There is certainly no lack of opinions.
But opinions are best based on facts, and it was in this spirit that WhatDoTheyKnow user Jon Rush set out to request vital information about the key Brexit sticking point, and the main reason that a deal is so hard to agree — the Irish border.
Brexit and the border
As Jon explains, “Brexit creates serious problems for the current arrangements between Northern Ireland and the Republic of Ireland under the Good Friday Agreement because they depend heavily on both the UK and RoI being in the EU”.
He wanted to gain access to the results of a mapping exercise, referred to in a joint report from the EU and UK negotiators but not available to the public at that time, which assessed the level to which co-operation between the North and the South depends on the EU frameworks currently in place.
Crucial information, you might think, for the general public who will be so affected at every level by whatever type of Brexit we enter into. Jon certainly thought so — but getting hold of it would set him on a long journey.
A hard-won result
Jon’s initial request, to the department for Exiting the EU (DEXEU) was in December 2017. You can follow its long and complicated journey on that page, thanks to Jon’s detailed annotations.
FOI is one of the few tools that individuals can use to hold government to account and it’s important to use it — otherwise government will never take transparency seriously.
Simultaneously he was requesting the same information via our partner AccessInfo’s site, AskTheEU.com, which covers EU authorities — and meanwhile, MPs in the UK’s Exiting the EU Select Committee requested the same information on numerous occasions throughout 2018, but were repeatedly rebuffed by government.
Pursuing his right to information would take Jon via the ICO, the European Ombudsman and to the brink of a tribunal, but in the end, the report was indeed released into the public domain.
What was revealed
What did it tell us?
“It contains a description of each area relevant to North-South cooperation under the Good Friday Agreement together with an assessment of how far it is underpinned by EU legal and policy frameworks.
“The focus in the media has tended to be on trade/customs arrangements, but if you go through the mapping exercise, you find that many other areas of cooperation are underpinned by the EU membership, including transport links, water, waste management, energy, Irish language broadcasting, mobile roaming, invasive species, disease control and cross-border police cooperation.
“Overall, 96 out of 142 different areas covered by the mapping exercise were found to be supported by EU legal or policy frameworks (with well over a third being “directly underpinned or linked”, ie EU membership is particularly significant).
“This shows that any workable solution is likely to involve the UK committing to quite a close relationship with the EU, at least in the areas identified as crucial to North-South cooperation”.
A lack of transparency
The release of this information was a positive result — but Jon believes that the government has been far from open during the whole Brexit process.
“To be properly informed about Brexit, we need access to information which is often available only from government. It would be very difficult for an organisation outside government to produce something like the mapping exercise because it requires input from numerous experts across different areas and in some cases, access to information that only government is likely to have.
“Government is therefore uniquely well placed to provide this information – but if government refuses to share it, it’s impossible to get the full picture.
“In my view, the government’s approach to its own documents concerning Brexit has been to release as little as humanly possible, arguing that disclosure would undermine its negotiating position with the EU.
“I accept that occasionally, information may need to be withheld for this reason. But it is equally if not more important that people can understand what Brexit will mean for them — and I don’t think the government has paid anywhere near enough attention to that issue”.
This was not Jon’s first experience using FOI: in fact, he had recently exercised his rights to information on another Brexit matter.
“I asked DEXEU for details of the scope and timetable of their consultation on leaving the EU. This was after David Davis (who was then Secretary of State for Exiting the EU) had told Parliament in September 2016 that the government would be consulting widely on the options for leaving the EU.
WhatDoTheyKnow.com has made the process quite easy to initiate and it also means that others who might be interested in the same information can find your request.
“By late October, nothing had been published, so I made an FOI request through WhatDoTheyKnow.
“Initially, DEXEU told me it had this information but refused my request, saying that it planned to publish the information at a later date. I didn’t see why the information couldn’t be published sooner and complained to the ICO.
“Their investigation showed that DEXEU did not have a formal plan or any formal process for the consultation — which explained their somewhat evasive response.
“DEXEU should probably have told me that it didn’t hold the information I had requested – but to do so would have involved effectively admitting that it didn’t have a plan or any formal process for consultation. You can make up your own mind by reading what the ICO had to say here”.
Pursuing a refused response
But back to the Irish border request. When Jon didn’t receive a response from DEXEU, and after requesting a similarly fruitless internal review, he took the next step and referred the matter to the ICO. They ruled against disclosure in a decision that Jon believes was ill-founded:
“The ICO decision was based on section 35 of the FOI Act, which relates to information produced for the purposes of policy formulation.
To be properly informed about Brexit, we need access to information which is often available only from government.
“It is certainly true that the mapping exercise was produced to inform the government’s thinking about Brexit and Northern Ireland. However, it was a summary of the current arrangements, not a discussion of what the future policy options should be; as such, it was essentially background information, which is usually regarded as less sensitive. Section 35(4) makes it clear that there is a particular public interest in the disclosure of background of information – and case law makes it clear that such disclosure can take place before the final policy has been formulated, as I was requesting here.
“The ICO also argued that disclosure of the mapping exercise would have a “negative effect on discussions” with the EU and “create a distraction to discussions” — but its decision did not explain how this would occur, especially given that the mapping exercise had been shared with the EU.
“When I put these points to the ICO as part of my appeal to the tribunal, it accepted that the mapping exercise was background information but argued that it should be treated in the same way as discussion of policy options. It was unable or unwilling to provide any further explanation of the supposed negative effects of disclosure and suggested that this was a matter for DEXEU to explain. I was (and remain) very concerned by this because the ICO is supposed to be an independent regulator; it should not simply be taking what government says at face value but should be questioning it and satisfying itself that what government says is actually correct”.
And so Jon referred the matter to tribunal.
But in June of this year, two of the key documents he was requesting were finally released by the government, and he decided to drop his appeal to tribunal, for reasons which you can read in his annotation of the time.
While many WhatDoTheyKnow users are determined and driven, it’s also true that others would be easily defeated by an initial refusal, not to mention the further rulings. So what gave Jon the will and tenacity to carry on?
I would encourage people to use FOI … if you are prepared to persevere and be patient, you can get what you want.
“I knew that appealing to the tribunal would involve quite a lot of time and effort on my part, but I wasn’t prepared to just let this go for two reasons. Firstly, FOI depends on having an effective regulator which is prepared to question government robustly — and if people like me just shrug our shoulders when that doesn’t seem to have happened, then nothing will ever improve.
“Secondly, Brexit is going to take many years to sort out and there will be many more occasions where people want to use FOI to get information out of government; unless challenged, government will just continue to refuse to disclose information whenever it suits it to do so.
“Appealing to the tribunal was a new experience for me. I am a lawyer by profession, which probably helped, but I am not an expert in FOI, nor am I a litigator — and I did feel at times that my lack of familiarity with those areas was a handicap. So I have a lot of respect for people who are not lawyers and take cases to the tribunal on their own.
“I would encourage people to use FOI and I think that what happened with this request shows that, if you are prepared to persevere and be patient, you can get what you want — even in a situation like this where MPs had asked repeatedly for exactly the same information and hadn’t received it.
“FOI is one of the few tools that individuals can use to hold government to account and it’s important to use it — otherwise government will never take transparency seriously. WhatDoTheyKnow.com has made the process quite easy to initiate and it also means that others who might be interested in the same information can find your request.”
Jon is also planning to submit a complaint to the ICO about its handling of this case, including the time taken to deal with it:
“Although it was expedited, it still took over six months, whereas my complaint to the European Ombudsman (which concerned essentially the same material) was dealt with in about half that time.”
He intends to post a link to the complaint in a further annotation on the FOI request page on WhatDoTheyKnow – so watch this space!
Many thanks to Jon for taking the time to talk to us about his long and involved pursuit of information, which despite the delays will still help to inform the UK public at this critical time in our country’s history.