This was first posted on the Help Me Investigate blog a couple years ago. I thought it was about time I should cross-post it here also.
A natural companion to Heather Brooke’s introductory Your Right To Know, FOIA Without the Lawyer addresses the challenges that come after the FOI is submitted: the niggling exemptions and excuses used by public bodies to avoid supplying information requested under the Act.
In the process it details numerous ways of anticipating and responding to them, including various references to official guidance, tips from FOI officers, and experiences of journalists and others using FOI, all of which are hugely helpful. I’ve tried to summarise some of them here:
11 tips on FOI from the book
- Montague and Amin say “Think ahead. Consulting forward planning diaries and requesting ahead of national events such as the Olympics or a general election should mean that information that has taken months to obtain will be topical when released.”
- Call the FOIA team at the public authority before making a request to frame it best – and possibly get it straight away
- “Always thank them – because often nobody else does”
- Ask for cost codes for specific activities (for example particular offices, projects, or types of expense) “and then for the amounts recorded under each code”
- Try to gain access to the records office “where you can meet the staff and see how the information is held. This can provide an excellent opportunity to find information and make contacts beyond the original request.”
- You can also ask for a digest or summary of the information.
- Read the ICO’s ‘Lines To Take’ (LTT) documents for guidance to ICO caseworkers you might quote as part of your request
- Search the Panopticon Blog for commentary on FOI judgements you might also quote
- Decide whether you are fishing or mining (pursuing a specific piece of information/document). Here’s an example of a “mining request”
- While we’re at it, here’s an example of a ‘skeleton argument‘ for disclosure
- If you appeal the commissioner’s decision submit a FOI request to the ICO for all information relating to your case.
Beyond the tips the most useful guidance comes on approaching the appeals process.
Appealing against a decision
There are three broad types of argument in appealing against a refusal, say Montague and Amin:
- that the exemption does not apply;
- that the exemption is “prejudice based” and you wish to challenge the likelihood and/or level of harm presumed by disclosure;
- or you wish to argue that the public interest test is met in your favour (if the exemption is qualified).
The book gives particularly detailed advice on how to deal with ‘prejudice based’ refusals where authorities have to prove some harm may follow disclosure. That harm must be specific, broadly likely (if not necessarily probable) and more than trivial.
It also provides useful guidance on the law on confidential information, which says information “must have the “quality of confidence.”:
“A High Court ruling unrelated to information law established some of the tests for confidence including the fact there must be some potential harm in disclosure … if the public authority cannot provide evidence that disclosure will actually damage commercial interests it cannot rely on the exemption.”
Notably in the context of recent coverage of Scotland Yard’s refusal to name companies found to be employing phone hacking practices, and also UCAS’s decision not to publish application data out of fear of prejudicing its commercial interests and those of universities ICO guidance on commercial interests says
“There would be strong public interest arguments in allowing access to information which would help protect the public from unsafe products or dubious practices, even though this might involve revealing information that is likely to harm the commercial interests of a company.”
Importantly any body refusing a request on the grounds of harm to private interests must consult with the company, and weigh up their response against any public interest arguments.
When it comes to contracts, that decision may be made on a clause-by-clause basis.
“Section 43(2) can be engaged to exempt contractual information but this should not result in the blanket exemption of whole contracts. In the same case the tribunal analysed a contract clause-by-clause and provided a “case for redaction”, a “case for disclosure” and a decision for each individual clause of the contract. This approach has been upheld by tribunals in other appeal cases, including as Channel 4 v IC and BSkyB (EA/2010/0134). We recommend requesters cite this approach in your requests.”
The international relations exemption is well covered – it is emphasised, for example, that this relates to the UK, not “the interests of the public authority itself”.
And the book’s advice on sensitive personal data provides examples where it might still be disclosed – for example, in connection with unlawfuls acts, malpractice or corporate mismanagement, where it is fair for the person to expect it would be disclosed (for example, senior salaries, operation of public service, or implication in wrongdoing), and where it does not have privacy implications because it is not “biographical in a significant sense”.
Those are the highlights but I thoroughly recommend buying FOIA Without the Lawyer in full – like Brooke’s book it provides an essential reference to dip in and out of as and when you need to consult different passages.
And if you find any other useful tips, let me know.