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Covid-19 and Freedom of Information – Calm before the Storm?

The Freedom of Information Act (“FOI”) is a powerful tool for the public and press to obtain access to data held by local authorities. Naturally, controversial issues with a significant profile are more likely to generate FOI requests relating to sensitive, personal, or commercially confidential information. Consequently, they are more likely to require careful consideration of whether redactions are necessary or even an outright refusal to disclose.

The national impact of Covid-19 is almost certain to result in FOI requests for those seeking to understand (and in some cases challenge) a public body’s approach. This article will provide some key points to bear in mind when identifying, considering and responding to such requests.

How do you spot a valid FOI request?

Often, FOI requests will be obvious – they will expressly say they are FOI requests and will be directed to the FOI team. However, requests do not have to expressly refer to the FOI regime to be valid. The Information Commissioners Office has stated that:

  • FOI requests can be made in any form of writing, including email
  • FOI requests do not have to be sent to a specific address to be valid, and may even be made via social networking sites such as Twitter or Facebook; and
  • If a local authority is in any doubt about whether a request is a valid FOI request, they should work with the member of the public to address their question and set out their rights under the act. 

Often the request will be made to a local authority directly, and the application of the FOI regime will not be in any doubt. However, some private enterprises can become subject to the FOI regime as well, for example if they are owned by public bodies or providing services to serve the statutory duties of public bodies. Such enterprises need to be able to understand their duties under FOI and be ready to respond to requests adequately and with the relevant time-frames.

It is important to ensure that valid FOI requests are identified and dealt with. Failure to respond allows the requestor to complain to the ICO directly. This represents a significant escalation of the situation, which should be avoided where possible. If you are in any doubt, you should consider seeking professional support.

What information is held?

Once a valid FOI request has been identified, the first crucial step is to locate and review what information is held and its significance, as this will inevitably steer the response you provide. It can take time to gather and understand the information properly. It may be that once the information is assembled it can be disclosed relatively quickly. However, the sensitivity of the information generally only becomes clear once it has been pulled together. If that is the case, then time available to consider exemptions from disclosure can be short; as a result, the sooner the information is gathered the better.

It may be that you have difficulty finding the information because the request is unclear or ambiguous. This could be something as simple as a request with unclear dates or names, or something more complex such as a broad reference to a policy or project which could mean multiple things.

If that is the case, the FOI regime allows you to pause your response while you seek clarification from the requestor. This step should be given serious consideration where there is doubt – an answer given on the basis of a misunderstanding can often unnecessarily increase both the time you spend and the frustration of the requestor.

Can information be withheld?

It is crucial to remember that the starting position is that information should be disclosed unless a legal exemption is available. Putting it another way, if a local authority wishes to refuse disclosure, the burden is on the authority to justify it. The process of understanding whether disclosure is appropriate may require significant work.

Applying the legal exemptions available under the FOI can be complex – a considerable number are available and multiple exemptions can apply to each piece of information requested. A methodical approach is generally best, considering which exemptions could potentially apply in broad terms, before applying those exemptions in detail and in line with statutory guidance and available case law.

Our work with public bodies over the years bears out the value of making conscious preparations to protect information from disclosure when this would not be in the public interest. Such preparations can make the job of dealing with requests much more robust and efficient. Equally, preparation may actually enable public bodies to avoid an overly defensive approach by identifying information of key sensitivity or by planning ahead for phased and/or future publication.

The vast majority of exemptions are also subject to the public interest test. In short, even if the exemption applies to the information, it must also be in the public interest to withhold it before the disclosure can be refused. Conducting the public interest test can be broad and complex – the whole situation must be taken into account on a case by case basis and generic templates should be avoided. This is often the most complex part of responding to an FOI request as it requires an objective analysis of the potential impacts of disclosing the information, which can involve predicting consequences some months and years into the future. Regulatory lawyers work with public interest considerations in many contexts and can often provide valuable insights and perspectives on the issue which can help public bodies to decide when disclosure is not appropriate.

Nonetheless, getting the initial response right is key. A properly drafted response may resolve the request there and then. If it doesn’t and the requestor decides to take things further and raise a complaint with the ICO (or issue Court Proceedings) the initial decision will need to be robust and well-evidenced. It will be a key document for any future dispute and significant changes in a local authority’s position can be difficult to justify. Again if you are in any doubt, seek professional support to ensure your response gets started on a strong footing.

The FOI regime is complex, and a brief article can only provide some general principles to keep in mind. If you have any queries regarding the preparation of robust FOI processes, or would like advice and support in relation to anticipated FOI requests, please contact Jack Baumgardt on J.Baumgardt@ashfords.co.uk or 0117 321 8021.

 

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