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Read highlights from our workshop to improve public authority FOI performance

Read highlights from our workshop to improve public authority FOI performance

26 November 2021

Calling all FOI practitioners: are you looking for some tips to help get your FOI response right, and reduce the risk of reviews and appeals?

Our workshop at the 2021 Holyrood FOI Conference saw our staff highlight some of the preventable problems that we regularly see arising in the cases we investigate, to help practitioners identify and resolve these issues in their own request handling.

The workshop was informed by the experiences of our enforcement team - which investigates the FOI and EIR appeals we receive - and provided practical advice to help practitioners take positive action early in the request handling process to prevent common issues arising.

Below we highlight some of the issues and guidance explored during the session:

Is the request for review valid?

What's the issue?
  • FOI requests must contain certain things to be "valid" in terms of the FOI Act. For example, they must:
    • request information
    • include an address for correspondence (an email address is fine)
    • include the requester's real full name.
  • The requester's real full name must be included in the body of the correspondence. A request which uses a pseudonym or contains only a first name won't be legally valid - even if the full name is included in the email address the person has used.
  • When an authority responds to a request which isn't valid, the requester won't be able to appeal to the Commissioner if they're unhappy. Instead, they'll have to start the whole process again, resubmitting their initial request with their full name included. This leads to extra work for the authority, unnecessary delays for the requester, and harms the relationship between the two.
Tips and guidance
  • Check all requests on receipt to confirm they're valid in terms of FOI law.
  • Develop simple standard text which helpfully explains why a request has to be resubmitted if it is invalid.
  • Think about including helpful wording on your FOI contact page, or within an auto-reply to your FOI mailbox.
  • Check validity again during the review process. Requesters who have asked for a review may well be on their way to appealing to the Commissioner, so use this opportunity to double check the validity of the request (and the request for review).
  • The situation is different for requests for environmental information. Unlike the FOI Act, the EIRs don't require that a requester give their name.
  • Where appropriate, you can also refer the requester to the Commissioner guidance on this issue (see below).

Are you clear what is being asked for? Do you need clarification?

What's the issue?
  • It's important to understand what is being asked for from the outset of a request.
  • Misinterpreting a request, or making assumptions about what the requester is looking for, can start you off on the wrong path, leading to unhappy requesters, reviews and appeals.
Tips and guidance
  • On receipt of each request, take some time to ensure you understand what the requester is looking for.
  • Put yourself in the shoes of the requester - is your reading of the request likely to be the same as theirs? Beware of making assumptions.
  • Don't take an overly restrictive approach when interpreting requests - think about what the requester is likely to be looking for, and proceed on that basis.
  • If in doubt, seek clarification - but remember that requests for clarification must be reasonable.
  • If seeking clarification, do it as early as possible.
  • When seeking clarification, think about how you can help the requester to clarify their request to best access the information they want. Remember your duty to advise and assist.
  • You should also be clear about the scope of any requests for review you receive. Make sure you understand why the requester is unhappy, as this will be the focus of your review. If it's not clear, ask.

Do you actually hold the information?

What's the issue?
  • We often see cases where an authority has applied an exemption only to find that, when the case reaches us, the information wasn't held in the first place.
  • In such cases, decisions are often made without the authority having searched for the information. Instead, authorities inappropriately assumes that, if held, the information would be exempt, and respond on that basis.
  • Requesters can then find themselves going through unnecessary reviews and appeals, when the correct position could have been communicated to them from the outset.
Tips and guidance
  • Always carry out full and appropriate searches to identify information falling within the scope of a request before making any decisions on disclosure.
  • Don't make assumptions. All information must be properly considered in context before deciding whether it can be disclosed, or whether an exemption applies.

Was your search appropriate?

What's the issue?
  • It's a fairly regular occurrence that more information is discovered during the course of the Commissioner's investigations - information which should have been considered from the outset.
Tips and guidance
  • Approach any search for information carefully. Think about:
    • whether your search is appropriate for the information requested
    • whether you're searching everywhere that information might reasonably be expected to be found
    • the different ways in which information might be held.
  • Don't assume that information won't be held - carry out appropriate searches.
  • Don't restrict yourself only to the obvious places - think about all likely locations.
  • Think about news ways of working and search appropriately. For example, think about information that might be stored in WhatsApp, Microsoft Teams, mobile devices, remote locations, text messages, etc.
  • Carry out a full search as early as possible in the process - this will ensure all your decision-making is based on accurate and reliable information.
  • When carrying out reviews, look at the whole request afresh. Don't limit your revise only to the consideration of any exemptions. Think about the search as well - was it appropriate?
  • Use search forms to evidence your searches. Record what you searched for, where you searched, when you searched, the terms used, the results of your search, etc. The Commissioner may ask to see evidence of your search if the case is appealed and, if you can't provide this, may ask for searches to be carried out again.

Can you just disclose the information?

What's the issue?
  • We often see cases where, when a case reaches us, the authority finds that it is happy to disclose at least some (and sometimes all) of the withheld information to the requester.
Tips and guidance
  • Consider disclosure from the outset. It's generally much easier to disclose information than withhold it.
  • Be aware of the passage of time. Circumstances can change between the time when a request is received, and any subsequent review or appeal. Has the sensitivity of information diminished in that time? Can it now be disclosed?
  • Don't apply exemptions in a "blanket" fashion to information. Think about what is genuinely exempt, and whether other information in a document can be disclosed.
  • It's OK to change your mind. And if you do, don't wait for an appeal, or a decision from the Commissioner. Disclosing information as soon as you can will reduce work for you, and will ensure it reaches the requester as quickly as possible.
  • If you do change your mind, it's also OK to tell the requester why, or explain why the sensitivity of the information has changed. This will help them understand your actions.

Have you properly considered all the tests when withholding information?

What's the issue?
  • The Commissioner’s guidance sets out a range of tests and questions which should be considered when applying each exemption (along with similar guidance when refusing on the basis of excessive cost, or when considering vexatious or repeated requests).
  • To successfully apply an exemption, you need to make an effective case, demonstrating why those tests apply.
Tips and guidance
  • Whenever you're considering withholding information, read the relevant guidance and carefully work through each of the relevant tests.
  • Make sure you apply the tests to the specific circumstances of the information you're seeking to withhold - beware of making general arguments.
  • Take time to carefully set out why each of the tests applies to the specific information withheld. The Commissioner will ask for this in the event of any appeal. For example, if the exemption is subject to a harm test, set out why the disclosure of the particular information in question would be likely to result in the harm required. Remember that a general, unsubstantiated claim that harm may arise will not be enough. Include any evidence which supports your position, where appropriate.
  • Use the tests set out in the Commissioner's briefings to inform the questions you ask your colleagues.
  • Look for gaps. If there are parts of the test you're finding it difficult to answer, it may be because you don't have the evidence to support the application of the exemption.
  • Search the Commissioner's Decisions Database to look for past decisions on related issues to inform your current approach.
  • If you can't make an effective case for the application of any exemption, or can't find persuasive evidence to support it, it's likely that the exemption shouldn't be applied.

Information otherwise accessible - is the information available through the route you're suggesting?

What's the issue?
  • We sometimes see cases where a public authority has applied section 25 of the FOI Act (information otherwise accessible) and provided the requester with a weblink, but the information sought can't be accessed through the route proposed.
  • If the specific information the requester has asked for isn't available through the route you provide, then section 25 won't be appropriate.
Tips and guidance
  • When applying section 25, check and confirm that the specific information the requester is looking for is actually available through the route provided.
  • It won't be appropriate to provide a link to general information about a related topic if the information available doesn't answer the requester's specific question (although doing so can sometimes provide helpful additional context to a request, under the duty to advise and assist).
  • Think about whether it will be clear to the requester how the information at the end of the link will answer their question. If it isn't immediately clear, provide any relevant advice, guidance, explanation or context, to help them access the information.