Freedom of Information Act 2000/Making requests

Why make requests

Transparency and accountability are the main reasons for making requests. We want to understand the implications of policy decisions and practice. Often FoI is a means to gain information to be able to assess what is happening in a particular policy area.

Privatised enforcement

The government is increasingly pushing policy action on certain areas of social policy back onto companies. This ranges from copyright enforcement through to child abuse and counter terrorism. The result can be that government policy lacks accountability and legal frameworks. In these cases, FoI is one of a few means to establish some basic transparency, alongside Parliamentary Questions.

Policy formation that fails to involve civil society

Another basic problem is that policy formation in some areas tends to ignore civil society. This is especially true when government seeks to pressurise private companies, but can be true of many other policy areas as well. FoI can help us understand the patterns of lobbying and establish whether any part of civil society or organisations reflecting human rights values are being consulted.

Policy evidence

Departments and institutions collect all kinds of information and may evaluate their own policies. FOI can be a way to get that evidence into the public domain.

Commercial interests

All Internet and data policy will involve competing commercial interests. A key question for us is which commercial interests, and what are they asking for? FoI can help establish what is being pushed for and why. Often this is not part of the public discourse, so FoI can help place these questions into the media and politics.

Regulators not subject to FoI

At present a number of Internet regulators with statutory or public duties are not subject to FoI. These include the IWF, Nominet and the BBFC. Each of these are of course private organisations, even though they have public functions.

Scottish FoI does not regulate all authorities that have digital rights impacts, for similar reasons. The Improvement Service in Scotland delivers IT projects including the MyAccount element of the Scottish identity system, but is not subject to FoI, as it is a private company not wholly owned by government.

In these cases, they will often respond to requests for information, so it can be worth asking despite the lack of a legal duty. Another approach can be to ascertain if they are partnering with other public bodies, in which case information can be gained that way.

Additionally, the National Crime Agency and security agencies such as GCHQ are entirely exempt from FoI.

Open or difficult departments

Some departments and agencies have a very open culture. These tend to be those who deal with a wide range of stakeholders, or whose purpose is clearly about the public interest, such as elections. Others, such as the Home Office, have a more closed culture in general, and therefore can tend to take a very conservative view of requests. In addition, time pressures seem to lead to poor readings of requests in some larger departments.

Where departments are likely to be resistant, or too busy to read requests properly, the request should be framed as narrowly and simply as possible to avoid confusion and error.

Approaches to making requests

Requests can be broad, or focused. In general, ORG should have a fairly clear idea of what may be concerning.

However, FoI requests need to focus on information that exists, and preferably is unlikely to be caught by the many exemptions that can prevent disclosure. Thus, while we may know roughly what concerns us, we may not know exactly where information may be to describe it.

Who has the information?

It can be a good idea to ask who is responsible for a particular policy area before making a request.

For instance, we recently asked the Cabinet Office for details of meetings with e-voting technology companies. They declined our request, because it would take too long to search the records of the entire Cabinet Office. For our next request, we will ask for information from just those parts of the CO that work on elections. Obviously, if you can establish this before making the request you will remove room for error and time taken.

Finding the right part of a big department

This can be a good reason to get an organisational diagram. Departments were publishing their structures under the Open Data policies. For instance:

• Home Office
• Cabinet Office

This can help locate the most likely parts of a department to be relevant. However, the public Organograms do not all appear to be maintained.

Requests for lists of documents

A good start can be to make a request for lists of documents held on a particular topic, such as policy documents, privacy impact assessments, evaluations and so on.

A list of existing, actively used documents should be relatively uncontroversial and easy to compile. This can then help narrow down what might be useful, and therefore help avoid unnecessary costs for the department or organisation.

The process

Initial request

The first request should be framed quite simply and does not need to set out legal arguments. You can of course make some simple points about the validity of your request.

If you are dealing with an attentive department, you can also help by explaining how to prioritise the search if you are worried that it may take longer than the three days allowed. For instance, you can suggest they shorten periods of time if you are asking for email or meeting records.

Always be polite and remember that the Freedom of Information officer is likely to be sympathetic, as it is their job to help their organisation be transparent. They are your potential ally and you should treat them as such.

You should aim to make your request successful, so remember to be as narrow as possible, and to request things that you know are likely to exist. Remember also the strategy of establishing what exists by asking for lists, if you think your request might be turned down.

Internal review

if you are refused, and the grounds are not about cost and time limits, then an Internal Review is the next step. At this point you should at least have a clear idea of whether you feel their arguments are valid or not, and you can make counter arguments for publication. Usually these are about the public interest, ie the importance of the release and what this does, versus the arguments for withholding it.

However this is not a legal process, and is not going to cost, so does not require professional advice.

A more senior officer should take a look at the request and make a fresh assessment.

Complaint to the Information Commissioner

At this point you may wish to get your legal arguments in order and seek professional help. According to FOIA without the lawyer, the Information Commission is often disappointed that the arguments are not properly put to them at this stage. They say that better arguments at this stage would be much more likely to succeed and thus avoid applications having to go to tribunal, which is the next step.

Of course, both sides may appeal, so if the information is particularly contentious or embarrassing, a successful result here may still result in needing to go to the Information Tribunal.

Information Tribunal

At this point you should be seeking legal advice and representation.

Types of documents we can request

This is not an exhaustive list, but can help you think about what information a department might have. The ICO publishes a list of documents for each body that they would expect bodies to be able to provide.

Understanding an organisation

Organisational diagrams or maps

Most organisations will have a document that explains their structure. This may help you understand who is responsible for a particular policy area, or how decisions are made or ratified.

Information asset registers

Most government organisations will already have this document, which is used to manage their own processes. It is simply a list of all important documents and information such as databases that are held.

Many departments already publish these as part of transparency and Open Data policies.

Understanding policy development

These kinds of item can be restricted under policy making exemptions, so can be hard to obtain. However, public interest also weighs for disclosure, so it is not material that can automatically be rejected if requested.

In some cases, where government is brokering action between private companies, or persuading them to take action that is not required by law, these kinds of requests are pretty much the only way to understand what is going on, until or unless MoUs emerge, although these too may well not be released unless an FoI request is made.

List of meetings

This might help you know who is meeting and about what. Without full risk of a rejection, this can then help ascertain what information may be interesting, in terms of points discussed, and can be followed up by a request for minutes.

Agendas and minutes of meetings

Although these can be relatively bland, they can also give an idea of what issues are being discussed and the substantive concerns.

Emails and correspondence

Finding this information can be time consuming so requests should be fairly limited in time and scope. Think through how easy or hard it will be to locate what you are asking for—how many companies or people will they have to check for, across how many email accounts, for instance.

This information can be sensitive, but equally it can be revealing, in showing the motivations and ambitions of the people involved, and that can be important.

Media strategy/Lines to take

You can request documents outlining what lines an organisation would take when communicating with the media.