Prepare for delays, but don’t be put off: Inside the world of FOI requests

Martin Rosenbaum addresses the LDR conference in Salford (He’s making a point about round robin emails here)

By Helen Bennicke at the Local Democracy Reporter conference

Martin Rosenbaum, a Freedom of Information expert at the BBC, has urged journalists to ‘prepare for delays’ when dealing with Freedom of Information requests.

FOI requests are supposed to be answered within 20 working days, but increasingly aren’t, Martin told the BBC’s Local Democracy Reporter conference in Salford.

He cited an example where acolleague made a request in November 2014 to the Department for Communities and Local Government concerning Tower Hamlets Council — she got a reply in May 2016.

An interesting point is the DCLG says it takes its responsibility to respond to FOI requests “very seriously” — when it took more than 400 days to respond! “This is an extreme example, but you’ve got to be prepared to cope with delay.”

Other reasons for delays include cost, “but there are also the 23 exemptions that are grounds for refusal,” he said. “They come into two categories — absolute and qualified.

“Absolute is anything related to security services but most are qualified and it’s a question of whether or not it’s in the public interest.”

FOI requests have become a key part of the local democracy reporter brief, the conference heard.

It was “a good sign,” he said that the majority of the 100 plus Local Democracy Reporting Service journalists in the audience put their hands up to indicate they had made an FOI request.

Only a third of journalists put their hands up to say they had requested an internal review, with just a handful complaining to the Information Commissioner and only one person had appealed to the Information Tribunal. He said 25% of the time he “gets more” at the internal review stage.

He encouraged more journalists to do this in order to get access to information.

“FOI is a very useful tool but, of course, it’s not something that’s just easy,” he said. “Delaying tactics, regular frustration is often the experience of using FOI.

“The first thing to think about is what does FOI apply to? Recorded information held by a public authority — it includes, video, audio, pictures, maps and diary entries. Try and think widely when you think what you might get with FOI.”

But authorities are “not obliged to create information for you if it doesn’t exist, you are not going to get it under FOI,” he explained.

He said government departments, Parliaments and Assemblies, local authorities, Armed Forces, Police, NHS, schools, colleges, universities, a whole range of public bodies are covered — well over 100,000 organisations.

He highlighted a report by the Scottish Information Commissioner where a requester would have got the information had they asked for a review — where the authority was only going to release the information if had they asked for a review (unbeknown to them). They didn’t ask and the information wasn’t released to them.

Mr Rosenbaum highlighted the amount of redaction in documents. In one case when he complained, a little bit was revealed and he got more when he complained to the Information Tribunal. “There are benefits in pursuing these cases persistently,” he said.

“It’s good for you to develop a reputation for being the really kind of annoying person who will take cases right to the end. The more they think you’re the kind of person who’s going to do that, the more they will give you the information to begin with.”

In practical terms, you “don’t want any ambiguity in your request that leads to people interpreting it in a different way. Think through precisely the language you are using in your request,” he advised.

“Try and avoid judgmental language,” he continued. “In a FOI request about the Nursing and Midwifery Council, I made the mistake of asking for details of their backlog of complaints. They said we don’t have a backlog. What they admitted to was ‘a historic caseload.’

“I should just have said give me the numbers. Don’t think outside of the box — think inside the filing cabinet. What is the information they are actually recording?”

Citing a Daily Mail splash about Uber, David Cameron and Transport for London, it was the Lib Dems who filed a FOI request with Downing Street relating to Uber. “Downing Street replied: ‘We don’t hold any information relating to your request,” he said. “They also asked TfL the same request produced nothing in one case and a batch of emails in the other case that led to a front page in the Daily Mail.”

He said it was “very easy to treat an FOI officer as someone who is blocking you. The best way to think of them is as your representative within that organisation who you are trying to use in order to get information.”

Journalists were encouraged to test out requests with a small number of authorities before “blasting out to everybody”.

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