1. FOI and COVID-19: an update

    While the UK begins the process of trying to return to some kind of normality after lockdown, full access to information must also be restored.

    Back in April, we put out a blog post examining the state of Freedom of Information during the covid-19 crisis, looking at the UK and more broadly across the world. State-sanctioned delays were seen almost universally.

    While we understood the difficulties faced by authorities redeploying staff members to the frontline, we said then that the right to information was perhaps more vital than ever. In times of national crisis, transparency is crucial both for retaining trust in our leaders and for keeping check on their activities.

    WhatDoTheyKnow users have been asking pertinent questions about the pandemic, from requests for data on the number of cases in prisons and care homes, to the basis on which decisions about the national response strategy have been made. Potential students want to know about universities’ plans for the coming year; citizens are asking about measures put in place by their councils to encourage social distancing. And meanwhile, of course, requests for non-coronavirus-related topics are equally pressing: who’s keeping an eye on Brexit, or making sure the climate crisis doesn’t slip off the agenda for example?

    The state of play

    We’ve been linking to that initial post from the top of WhatDoTheyKnow, so that people making requests could get some background to the delays they might be experiencing.

    But since then the global situation has moved on, and so have some aspects of FOI provision. At the time of writing:

    • The Information Commissioner’s Office (ICO) is still stating that they “will not be penalising public authorities for prioritising other areas or adapting their usual approach during this extraordinary period.” Therefore, UK public authorities may still delay their requests without penalty. Read more on the ICO website.
    • The Scottish Information Commissioner had previously introduced overseen a change that permitted [see below for clarification] a longer period in which authorities might respond to requests, but on 27 May a reversal came into effect and the period returned to its standard 20-day deadline. However, there is still an acknowledgement that the pandemic, and indeed their own previous relaxation of the required timescales, may have a knock on effect to requests made before that date. See full details here.

    This does raise the question as to when the ICO foresees a return to business as usual. Of course, each authority will have its own experiences and challenges, with varying reasons for maintaining or removing an expectation of delayed responses. But they are guided by the regulator, and while the ICO continues to excuse lengthened response times, authorities may not hurry to do any different.

    UPDATE: A representative from the Scottish Commissioner’s Office contacted us with the following clarification:

    The changes in timescales under the FOI (Scotland) Act came about because the Scottish Parliament passed emergency legislation to change the timescales – they were not introduced by the Commissioner. Our position prior to the change in the law was set out in a statement we issued, and our comments, including concerns raised, on the legislation when it was introduced can be read here.

    We’ve also sought to emphasise the importance of the duty to respond promptly, even during the period when the deadlines were extended, as set out in our guidance for requesting information during the pandemic. We think it’s important that requesters know their rights, and the right to a prompt response (not just one within 20/60 working days) is something that has remained consistent for FOI users throughout the pandemic.

    Time to restore oversight

    It’s unquestionably a time of great uncertainty for us all, with many returning to some semblance of normality while still unsure whether the much anticipated second peak is on the horizon. But given a national policy of this staged return, should the ICO not, like its Scottish counterpart, be encouraging authorities to do the same?

    One compelling reason is hinted at by the Scottish Commissioner’s own caveat: that the longer the deadlines are allowed to extend, the more of a backlog will build up, causing further delays down the line.

    We’d encourage authorities everywhere to re-examine any laxity they may have introduced at the start of lockdown, and to continue to do so regularly: is it still genuinely necessary now that staff may have been moved back from the covid-19 frontline?

    And we’d urge them to treat the need for a timely, efficient FOI service as one of the top priorities during this uncertain period.

    Image: Andrea Piacquadio

  2. Workfare: what happens when the government doesn’t want to release information?

    You might have seen it in the Daily Mirror: the full extent of the Department of Work and Pensions’ legal costs, incurred while fighting the obligation to name the companies who participated in the Workfare scheme.

    Workfare is a government program which required the unemployed to work for one of the participating organisations, in exchange for no pay other than their existing benefits — working out lower than the minimum wage.

    It’s a story in which our site WhatDoTheyKnow is strongly involved. The original request for the list of companies participating in the Workfare scheme was made on the site back in January 2012 by user Frank Zola.

    That request was refused, noting that the information was “being withheld under Section 43 of the FOI Act which relates to the commercial interests of both the Department and those delivering services on our behalf”.

    As any WhatDoTheyKnow user is given the means to do, Zola referred the request to the Information Commissioner. They ruled in favour of the release.

    The government were unforthcoming, however, and the matter was taken to tribunal and through the court of appeal. Zola continued to pursue the case doggedly as the government repeatedly questioned the ruling that the information must be released into the public domain. Their defence was that the companies and charities listed as participating in the Workfare scheme might suffer negative effects to their reputation and commercial viability, given the strong swell of public opinion against the scheme.

    In July 2016, four and a half years after the request had first been made, the full list was finally disclosed, and can be seen on WhatDoTheyKnow here.

    But the story doesn’t end there. More than one person, including the Mirror’s own reporters, wondered just how much had been spent by defendants on both sides of the legal tussle. In August another user lodged this request with the DWP and discovered that their costs amounted to £92,250.

    Meanwhile, a similar request to the ICO reveals that their costs in defending the case used a further £7,931 from the public purse.

    We highlight this story partly because it shows the value of persistence. WhatDoTheyKnow is designed to help users to understand their rights. If your request is refused, it makes it clear that you have the right to request an internal review, making that route less intimidating to those who don’t know the ropes. If you go on to the appeals process, we hope that having all previous correspondence online helps with that. Other users can also offer help and support via the annotations system.

    In this case though, we think many would have been deterred once the matter had been referred to the higher courts, and we congratulate everyone concerned for sticking to their guns and getting this information out into the public domain.

    In a further twist, it’s perhaps worth relating that a few weeks ago, the supermarket Sainsbury’s contacted the WhatDoTheyKnow admin team and asked us to remove their name from the list of organisations who took part in Workfare, since “a small number of our stores did participate in the government’s Work Experience programme but this was not company policy”. We decided not to comply with this request.

    Image: Andrew Writer (CC-by/2.0)