Requests for Information
- If an information request is left on my voice-mail, do I have to treat it as a valid request under FOISA or the EIRs?
- I worry about information requests e-mailed to me while I am on holiday. What should I do?
- FOISA says that a request must contain a name and address. What if I only have the e-mail address of the applicant and not the home address?
- Do I have to deal with a request which comes in from someone who has obviously given me a false name, such as Mickey Mouse?
- I subscribe to an e-mail discussion group. Will requests for information made to the discussion group be valid information requests?
- Can freedom of information requests be made using sites such as Facebook and twitter?
- A member of staff has made a request for information and says that it is a freedom of information request. Is this the case?
If an information request is left on my voice-mail, do I have to treat it as a valid request under FOISA or the EIRs?
A request for environmental information may be made in any form (including verbal). Therefore, all voice-mail requests which include a method of contacting the requester should be dealt with as a valid request.
The issue of whether a voice-mail request should be considered as valid under FOISA will largely depend on the capabilities of the voice-mail system used by the authority receiving the request. If the system allows for voice-mail records to be permanently stored and subsequently referred to and the requester includes a name and an address for correspondence, then the request should be considered as valid. However, if the system does not have this functionality (e.g. if the system automatically deletes records after a period of time and there is no way to transfer them onto other systems for storage) then the request should not generally be considered valid under FOISA . However, under the duty to provide advice and assistance, the authority should try to contact the requester to advise him/her to submit the request in writing, or in another recordable format.
I worry about information requests e-mailed to me while I am on holiday. What should I do?
FOISA says that where a request for information is made by e-mail, it is presumed to have been received by the authority the same day (section 74(2)(b)). This means that the 20 working days "clock" will start counting down from the day after receipt, whether you are in the office to read it or not. If you are out of the office for any length of time, you should make arrangements to make sure that any requests which you receive can be dealt with within the time limits. For example, you could give a colleague access to your e-mail inbox or auto-forward your messages to ensure that any information requests are identified and dealt with. You could also consider setting up an automatic "out of office" reply telling people that you are away and giving an alternative contact point for any requests for information. Whatever procedures you put in place, the request must still be dealt with within 20 working days of receipt.
FOISA says that a request must contain a name and address. What if I only have the e-mail address of the applicant and not the home address?
FOISA states that a request must include an address for correspondence. The Commissioner has confirmed that an e-mail address is sufficient. However, where an email address is used, the applicant must also give their name in the body of the email to fulfil the requirement that the name of the applicant is given.
Do I have to deal with a request which comes in from someone who has obviously given me a false name, such as Mickey Mouse?
FOISA states that an information request must include the name of the applicant. This must be the real name of the applicant. So, if a request comes in from someone who has obviously given a false name, the application is invalid and the public authority does not have to deal with it. However, FOISA does not allow public authorities to enquire into the circumstances of the applicant or to ask for information in order to verify identities. As a result, unless you know for sure that the applicant has used a pseudonym, it will be difficult to refuse to deal with an information request on that ground.
A better starting point is the assumption built into FOISA that public authorities must generally discount the identity and circumstances of the applicant and must regard any release of information as if it were a release to the world at large. This approach recognises that applicants cannot gain any advantage by using a pseudonym.
You should also remember your duty to provide advice and assistance to an applicant under section 15 of FOISA. So, if it is obvious that a pseudonym has been used, you should tell the applicant that if they make the request under their own name then you will deal with the request. It may be that the applicant has particular reasons for not revealing their identity but rather than using a false name it is open to them to ask a friend or relative to make the request instead.
I subscribe to an e-mail discussion group. Will requests for information made to the discussion group be valid information requests?
The Commissioner takes the view that an email to a discussion group could be a request for information - provided that the email request is received by a public authority. However, such a request would be very difficult to enforce. Members of a discussion group/forum may simply informally agree not to follow up these requests under the Act.
It is also recognised that many of the requests on discussion forums are for expressions of opinion rather than for information.
Failure to respond to a request for information is something that the Ombudsman has been able to take action on for many years, but there are no known cases.
If an employee of a public authority accesses the list from their private home email account, then that will not constitute a request to a public authority.
Can freedom of information requests be made using sites such as Facebook and twitter?
In theory it is possible that requests can be made via sites such as Facebook and twitter, but to be valid they still have to comply with s8 of FOISA, which requires that requests state the name and address of the applicant and an address for correspondence as well, of course, as describing the information requested.
Requests which are anonymous or which use pseudonyms will not be valid. This is less likely to be an issue with Facebook (Facebook asks users to provide their real name), but may cause problems with twitter. Although it may be possible to find out the real name of the applicant through a twitter user's linked profile, the Commissioner takes the view that, for the request to be valid, the name of the requester must be evident from the tweet itself.
As mentioned above, requests must also include an address for correspondence. Given the restrictions on responding (see below), it is preferable if the request contains an email or postal address where a response may be sent.
Where requests do not specify the name of the applicant or an address for correspondence, you should, in line with your duty to provide advice and assistance under s15 of FOISA, tell the applicant what they have to do to make the request valid and how best to use their information rights. Often, the easiest option will be to ask the applicant to make a new request via email or suggest they use www.whatdotheyknow.com. However, if the information can easily be provided, you may instead choose just to disclose the information, while making the applicant aware that the request is in fact invalid.
Public authorities are likely to face difficulties replying to requests made via Facebook or twitter, particularly if they are refusing to disclose information (given the need to issue a notice complying with s16 of FOISA) or are disclosing large amount of information. (As is well known, twitter only allows messages of up to 140 characters.) In order to comply with FOISA, public authorities must "give" applicants information (see s1(1)) or "give" a notice (see e.g. s16(1)) explaining why the information is not being provided. It is not yet clear whether providing an applicant with a link where they can access the information or read the notice is sufficient to comply with this duty, although applicants are perhaps unlikely to complain if information is provided, or a notice is given, in this way. Again, the best solution may be to ask the applicant to provide an email or postal address to allow the authority to "give" a response or suggest they use www.whatdotheyknow.com.
The Commissioner has not yet received any applications for a decision following on from a request made via Facebook or twitter and this is new and untested area. Decisions as to whether requests (and subsequent applications) are valid will be made on a case by case basis and this guidance will be updated to reflect any decisions made.
You should also be aware that requests for environmental information made under the Environmental Information (Scotland) Regulations 2004 may, given that there is no express requirement to provide an address for correspondence, be more likely to be valid if made via Facebook or twitter than requests under FOISA.
Finally, you need to remember that you are under a duty to provide advice and assistance to requesters. So, if someone seems to be trying to make a request through Facebook or twitter, the authority should respond.
A member of staff has made a request for information and says that it is a freedom of information request. Is this the case?
It would depend what information is being asked for. Access to personal data is covered by the Data Protection Act 1998. However, if the request is for recorded information held by the public authority then it should be considered under the terms of FOISA.
It makes no difference whether the person making the request is an employee of the authority or not. The Act gives a general entitlement to receive information held by a Scottish public authority.