The Equality Act of 2010 requires that disabled people are not disadvantaged by any ‘provision, criterion or practice’. You might be familiar with its implications in the workplace or in providing customer services, but the law also applies to the public realm.

If we’re thinking about streets, for example, certain clauses of this Act mean that councils have a duty to ensure that access is as easy for a disabled person as it is for anyone else.

We’ve recently become aware of people making good use of our Freedom of Information site WhatDoTheyKnow to challenge cycle routes that are impassable for some, for example where a cyclist would have to dismount to get past, or where an adapted bike or tricycle would not fit through the space allowed.

“I’m honestly shocked at how easily FOI can get results”

The request-makers identify barriers to access, and ask the relevant authorities to confirm that all requirements of the Equality Act have been adhered to in their implementation, from the carrying out of an impact assessment to the making of ‘allowances and accommodations’ for those that need them.

It’s easy to find such requests by searching for the term “Was an Equality Impact Assessment carried out at this location” on WhatDoTheyKnow, which brings up several examples.

These FOI requests have been inspired by  a request-maker going by the name of Heavy Metal Handcyclist, who provides a template for others to use as an example — and whose WhatDoTheyKnow account shows him using the Act to very good effect himself, as for example with this request picking up on some obstructive barriers in Warrington. And he gets results: in this case the issue was dealt with constructively by the authority concerned; and a request to Warwickshire County Council will mean that some ill-placed new barriers in Clifton upon Dunsmore, Rugby will be removed:

We came across this little seam of activism thanks to an article by Jamie Wood, in which the author writes affectingly about how cycling has returned to him some degree of the independence and mobility that his Multiple Sclerosis took away: he goes on to say, however, that there are frequent frustrations in the form of paths blocked by thoughtlessly-placed bollards, posts and barriers that he can’t navigate on his tricycle. Constructive engagement and polite letters to his local council didn’t do the trick, and so he turned to activism.

“In the vast majority of cases, an FOI request should be enough, with no need to resort to legal means.”

Describing his learning curve, Jamie pointed to the Heavy Metal Handcyclist as well as to this letter on Doug Paulley’s DART website  — which brings us full circle, as Doug is a WhatDoTheyKnow volunteer as well as an accomplished campaigner on accessibility for disabled people.

As Doug quotes on his site, court cases have established that:

“The policy of the (Equality Act) is not a minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.”

We admire the level of knowledge and clarity in these requests and we hope that they bring good results. At the same time, we recognise that this sort of work shouldn’t be left purely to the disabled people who are affected by blockades and impediments: we can all keep an eye open for where such barriers may be making paths impassible for some. And, thanks to the examples linked to in this post, it is simple enough for us all to follow their lead.

As Jamie says, “It’s the Equality Act itself that can be only be used by people directly affected; anyone can make an FOI request”.

He also points us towards this report from the York Cycle Campaign, released last week, identifying more than 30 places across the city where the requirements of Equality Act have not been met. Kate Ravilious from the campaign says, “If City of York Council does not step into gear and rectify the problems, they will be forced to take legal action, which could end up with the council having to fork out as much as £50,000 for every person that pursues action via the small claims court.”

But Jamie points out that Freedom of Information is a softer and sometimes more effective first step towards getting these issues fixed: “In the vast majority of cases, an FOI request should be enough, with no need to resort to legal means.”

The Heavy Metal Handcyclist agrees:

“Whilst it is true that local authorities continue to install barriers to access despite their S.149 obligations, it is entirely possible to force almost immediate removal of barriers both new and predating the EA2010 by using a sufficiently pointy FOI request. To date, only one authority has needed further legal action, with officers in almost all the others immediately recognising the problem and addressing the issue quickly. I’m honestly shocked at how easily FOI can get results in this regard.

“WhatDoTheyKnow has been an excellent tool to catalogue and track FOI requests, particularly with regards to time limits.”

—

Image: York Cycle Campaign

A couple of weeks ago, we announced that we’d added new functionality to WhatDoTheyKnow to help people challenge FOI refusals. In fact, this tool had been quietly rolled out at the end of May, giving us a little time to ensure everything was working before we shared it. 

It tries to detect which exemptions were applied where information was withheld, and provides advice on next steps. This might involve making a revised request or asking for clarification, and the tool can also provide text fragments to use in a request for an internal review of the decision. 

It is early days, but just in the last month users have sent 158 requests for internal review after seeing this advice. Most of these are still waiting for a reply, but around a third (16) of complete internal reviews have led to an improvement in the amount of information released. This is above the monthly average for the last year, but we need to wait for more data to determine if this will represent a sustained increase in the success of appeals. 

As time goes on, we will be able to examine whether specific bits of advice or challenges to particular kinds of refusals are more likely to be successful than others. The goal is to give requesters the knowledge required to successfully challenge incorrect use of exemptions, and increase the percentage of internal reviews made through WhatDoTheyKnow that successfully lead to more information being released, either through increasing the quality and substance of appeals, or reducing appeals where exemptions have been applied correctly. 

 

Process	Requests
Total number of times refusal advice acted on	415
Total number of times internal review submitted after acting on refusal advice	158
Internal review requested and awaiting response	108
Internal review completed, no improvement	34
Internal review completed, improvement over last status	16

 

—

Image: Waldemar Brandt

It’s a painful subject to think about — children lost and unaccounted for as they migrate across Europe — but it’s also one that it’s vital to monitor and quantify. 24 investigative journalists from 12 European countries have taken on the job, coming together in the crossborder Lost in Europe (LIE) investigation.

According to their findings, 18,292 unaccompanied child migrants went missing in Europe between January 2018 and December 2020 – that’s around 17 children slipping off the records every day, often into the world of crime, human trafficking and prostitution.

Liset Hamming is an investigative journalist who also runs Wob-Knop, the Netherlands’ Freedom of Information site, on our Alaveteli platform. Last year, she messaged to say that a contact of hers within LIE was starting a new investigation.

Liset would be assisting with sending FOI requests to immigration and border enforcement authorities in 16 European countries. We knew right away that the international Alaveteli network could provide exactly the help required.

We made introductions to partners in Croatia, Czech Republic, France, Germany, Sweden, Hungary, Belgium, Greece and of course the WhatDoTheyKnow team here in the UK. Then via our partners at Ask the EU help was offered for filing requests in Italy and Spain.

These experts were able to help Liset navigate the individual requirements of the FOI regime in each country, pointing toward the relevant authority and translating or refining the wording of the request being made. In some other countries, Liset made her own contacts.

Local knowledge

There’s a surprising amount you need to know before you start making FOI requests abroad. The Alaveteli network contacts were indispensable for their ability to answer questions about their local regimes: what law the requests would go under, what authority to request to, whether people from outside the country were legally eligible to make requests, what the deadlines were for responses and what recourse could be taken if these weren’t met. The information gathered from the various in-country contacts was put together with the preliminary research Lost in Europe had done into the availability of documents on child immigration numbers.

Based on all of this, the requests took two different forms: in some places, it was clear exactly which document type needed to be asked for; while in others this was harder to pin down, and so the requests were more exploratory.

This March, LIE ran a data bootcamp for their member journalists, data scientists and designers, as well as any others (including ourselves and our Alaveteli partners) who were involved in the investigation. They had three objectives for this two-day event:

• Analysis of the most recent statistics, figures, calculation methods and the exchange of data between different EU countries
• Identifying gaps in European laws, procedures and regulations in the field of children’s rights and migration
• Pinning down design, communication and clear storytelling around figures and maps, for a broad public readership

The discussions and outcomes of this intensive meetup were invaluable, and so far it has directly resulted in news stories across major publications in the Netherlands, Italy, Germany, Greece, France, Romania and the UK.

In the meantime the 16 requests have been filed and are in progress. The first responses from authorities are ‘dripping in’, as Liset puts it. Some FOI proceedings can take a while, as anyone who ever took up a similar challenge will confirm.

The investigation is still in progress, and you can follow along with its latest file here. As a tangible sign of the value already being uncovered, this strand of LIE’s work won first place in the global IJ4EU Impact Award for cross border journalism. We’re very glad to have been able to assist in this small way to a vital investigation.

—

The requests

• On Transparencia for Belgium: request 1 to the General Directorate of the Administrative Police and request 2 to the Federal Police  (‘Total number of arrests at or near the border’)
• On Ma Dada for France: Procès-verbaux de la Police Aux Frontières (‘Border Police reports’) to the Ministry of the Interior
• On WhatDoTheyKnow for the UK: Total number of and reason for charges, checks, requests and/or arrests at the border regarding non EU citizens to the Home Office
• On Imamo Pravo Znati for Croatia: Policijskih izvještaja, izjava, optužbi i/ili zapisnika u vezi s provjerama, pretragama i/ili uhićenjima na granici (‘Police reports, statements, charges and / or records related to border checks, searches and / or arrests’) to the Ministry of the Interior, Zagreb
• On Frag Den Staat for Germany: Festnahme an der Grenze (‘Arrests at the border’) to the Federal Police HQ
• On Handlingar for Sweden: Gränshandlingar mellan 1 januari 2014 och 31 december 2020 (‘Boundary documents between 1 January 2014 and 31 December 2020’) to the Police Authority
• On Arthro5A for Greece (the first four requests ever filed on the brand new Alaveteli site!) συλλήψεις και αρνήσεις στα εσωτερικά σύνορα της ΕΕ (‘Arrests and denials at the Eu’s internal borders’) to the Ministry of Citizen Protection, the Greek Police, the National Coordinating Centre for Border Control, Immigration and Asylum and to the Ministry of Immigration and Asylum.
• Requests to the Ministry of Justice in the Netherlands had to be made by post, as they don’t accept FOI correspondence digitally.

—

Image: Aude-Andre Saturnio

If you’ve recently received a refusal to a Freedom of Information request you sent through WhatDoTheyKnow, you might have noticed our latest feature.

As mentioned in a previous blog post we’ve been working on functionality to help people challenge refusals, and the first iteration of this is up and running.

You might now see an automated notice above a refusal, identifying which exemption may have been applied. These are visible only to the person who made the request, and do not appear in every case; see more about that below.

Click ‘get help to challenge it’ and you’ll be presented with a series of questions about your request and the reply you received from the authority, to see whether there is any scope for a challenge.

Your answers to these questions will generate tailored advice on what to do next, also presenting you with editable fragments of text that you can use to get started with any challenge or request for clarification.

What’s the thinking?

WhatDoTheyKnow has always existed to make it easier for anyone to make an FOI request, without having to be an expert in the law.

We think we’ve got the initial part of that down pretty well (with the obvious caveat that there are always improvements to be made) — but up until now we haven’t directed a lot of attention to what happens after the authority responds.

Even for seasoned users of FOI, but especially for those new to the whole area, it is daunting to receive a refusal from an authority. By their nature, FOI responses contain some legalese, and this can be enough to make the best of us think, ‘Ah well, they probably know more about it than I do’ — and give up.

But another way of looking at it is that this legalese is there to help you. A body can’t just turn down your request because it doesn’t want to answer it: it has to say which exemption it is using under FOI law. If you know your way around that law, it is the key to understanding what to do next, and in fact, it’s this legal bumph that our code will be using to check what questions to ask you.

Before we introduced this intervention, a good number of users just gave up when they received a refusal from an authority — and that’s fair enough. We’d been directing users to a generic help page with details of what options are broadly available for challenging a refusal, but only the very determined would take it further.

And as we mentioned in our previous post, 22% of internal reviews (where you ask the request to be examined again, by a different member of staff at the authority) result in the full or partial release of information. It’s clear that bodies can, and do make mistakes sometimes.

Our new functionality helps you discern where that might have happened, and put together a decent challenge.

How it works

When an FOI request is refused, the authority have to give the reason, and this has to be one of a set number of ‘exemptions’ — clauses in the FOI Act that list the circumstances under which an authority is not obliged to disclose information.

Our code scans the response to identify which exemption/s have been applied. Remember, though, that this is just an automated best guess, so it’s still very much up to the user to check whether it’s correct!

At the next stage the user will be asked: “Did the authority mention any of these exemptions when refusing your request?” and there is the chance to remove exemptions if they’re wrong, and add any that haven’t been picked up by the code.

Then, informed by guidance from the Information Commissioner’s Office (ICO) for the identified exemption, we present a series of questions which should help you understand whether there are grounds for asking for an internal review.

Depending on your answers, you’ll see some advice. This might simply tell you that the exemption seems to have been applied correctly; it might advise you to ask the authority to clarify areas where their response is unclear, or it could point out where it appears that there has been an error on the part of the authority.

Note the various variations on ‘you have/may have grounds for an internal review’ — this is because each conclusion has been generated by a different response to one of the questions. In this example, the user has four different potential challenges to the refusal:

• The exemption seems to have been incorrectly applied
• The authority hasn’t provided some evidence that they should have
• The user has identified something about the contract that means the exemption shouldn’t have been applied to every part of it
• The authority hasn’t demonstrated that disclosure would be prejudicial to business interests

Whew! But if that’s a little overwhelming, there’s still some more support for the user.

Click ‘request an internal review’ and you’ll be shown some fragments of text you can copy and paste into your reply to help you start composing it. These are just prompts: they can be edited or overwritten to reflect your specific situation, and to allow you to express yourself in the language you’d ordinarily use.

Know your exemptions

Some exemptions are used far more commonly than others: for example we discovered when we began this work that the most often applied was the Section 12 exemption, ‘where cost of compliance exceeds appropriate limit’ — that is, responding in full would cost the authority too much in terms of expense or manhours.

Other common exemptions are Section 14 (turning down ‘vexatious’ or repeated requests for the same information); Section 40 (where the release would contain someone’s personal information); and Section 21 (where the information is already available elsewhere).

It’s worth knowing basic facts around exemptions: for example, if some of the information you’ve requested is covered by an exemption (say, a portion of it would contain personal information) the authority should still be releasing the rest. And if they tell you it’s available elsewhere, they should also do all they can to point you to the relevant place.

Some exemptions require a public interest test, where the authority must weigh up whether it is more beneficial for society as a whole to release the information than it is beneficial under the conditions of the exemption to refuse it. An example may be where the information relates to the UK’s defence capability, but would reveal something so important for the public to be aware of that any potential threat to national security is outweighed.

For this first stage of the new functionality, we covered the 13 most commonly used exemptions out of the full 27. Also, our tool might miss some exemptions. If that’s the case, or the exemption can’t be identified, you simply won’t see anything on the request.

Sharing knowledge

The ICO provides detailed guidance for authorities about each exemption, and this has also proved invaluable for us as we strive to point out where there may be room for requesting a review. As we’ve learned while creating this functionality, law is not precise: in many cases it is open to interpretation, and legal challenges at tribunal act as precedents, helping to consolidate its exact meaning. The ICO guidance is basically an attempt to unify such interpretation.

But the average person may not have the time to read up on the ins and outs of how this exemption or that should be applied, so we hope our sets of questions will give you a short cut towards understanding whether there’s a valid challenge to be made. Eventually, we hope it’s not too bold to suggest, the functionality may even increase the public’s understanding of FOI.

We are, of course, keen that this initiative doesn’t place an extra burden on authorities. The mechanism should work just as well in pointing out where the authority has acted correctly, and so discourage pointless challenges.

Where requests for internal reviews are made, the result should be that they are better informed, clearly structured and based on valid challenges. In time, this feature may even have the knock-on effect that authorities are incentivised to improve their initial responses, taking more care that exemptions are correctly applied.

We know this isn’t perfect yet, so if you’re from an authority and you want to share feedback, please do let us know. And if you’re a member of the public and you see anomalies in the wording or interface, please do also get in touch. You can contact us here.

—

Image: Andrew Fleming (CC by-nc/2.0)

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.

Try 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.

Can 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:

• Enforcement is outsourced to Capita, and includes tasks such as “visiting addresses, identifying people watching TV without a licence, taking statements, and achieving prosecutions of TV licence evaders”.
• It is legal to use a TV to listen to digital radio without a licence, if you do not watch or record live TV on it.
• Prisoners and the UK Parliamentary estate are exempt from TV licences — but MPs’ homes (and second homes!) are not.
• The BBC monitors anti-licence campaigns: or rather, at the time of the request it was monitoring all online mentions of licensing. A couple such campaigns were on their ‘do not engage’ list.
• More than 6,000 people issued a “withdrawal of implied right of access” to the BBC, indicating that TV licensing staff do not have the right to enter their home, in 2015. NB, legal consensus is that this doesn’t offer you more protection against such visitors than the law as it stands, but it appears the BBC did take such requests into account. This policy was later changed in Scotland to reflect that country’s trespass law.

…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.

How 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

Disused 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 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

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

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

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

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.

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