The third and final webinar of our series on freedom of information (FOI) requests in social research focused on the United Kingdom. With the Freedom of Information Act in force since 2000, everyone (UK citizen or not) is, in principle, able to request information from public bodies across England, Scotland, Wales and Northern Ireland.
Jenna Corderoy, reporter with openDemocracy’s investigations team, discussed her experience using FOI and shared learnings on navigating the barriers those of us using FOI requests UK are likely to encounter. She was joined by discussant Dr Rob Ralston from the University of Edinburgh’s Global Health Policy Unit, who has used FOI requests in his academic research on industry-government interactions in public health policy.
Beyond FOI laws
Jenna opened her presentation by highlighting two other routes that can provide access to information: subject access requests under the Data Protection Act, which also applies to private companies, and requests for environmental information under the Environmental Information Regulations. The latter have fewer exemptions than FOI requests and “environmental information” is defined broadly; the former can be used by anyone to request information about them held by public authorities or private companies. Depending on the project being undertaken, these can be valuable additional avenues for seeking information.
Tips for planning and writing FOI requests
Thinking about how to plan FOI requests, Jenna had four key recommendations:
- Check whether the information – or something linked to it that might be useful – is already available, using the disclosure logs of the relevant authority (for example, the House of Commons disclosure log can be found on the UK Parliament website).
- Check the WhatDoTheyKnow site for inspiration and existing information.
- Always chase up requests. Keep a record of the requests that you have logged and their due dates, and be sure to chase them if they are not returned promptly.
- Plan your requests in advance, particularly if the work that you are doing is time-sensitive, or if you are sending batch-requests (planning a set of test requests is advisable here).
For those conducting a lot of FOI work and able to cover the cost, Jenna recommended the WhatDoTheyKnow Pro subscription, which can help with the management of multiple requests and projects.
The best approach to writing a request will depend on what’s being asked for, but Jenna and Rob offered some general tips. Specificity is key – the more specific the request, the greater the chance of success. It’s important to always mention in the first line of the request that it is being made under the FOI Act, since this is what gives you the right to receive the data. Where you are requesting communications and correspondence, in particular, it can be useful to think about timelines – giving a specific time period decreases the cost of fulfilling the request and increases the likelihood of a positive response. The communications example also raises a point about clarity of language. What exactly do we mean by “communications”? This word can be interpreted differently so it’s important to be clear about what’s being asked for. Jenna also reminded us that it is often possible to stipulate the format that you would like the response to be sent in, and that this is worth thinking about in the context of what you plan to do with the data once it is received.
Your request was rejected…what next?
It can sometimes be worth appealing a decision to refuse access to information and challenging the exemptions that are invoked by the refusing authority. Jenna talked through some options and approaches to this course of action. An appeal should be registered within two months of the refusal and will lead to an internal review of the request. Looking at the exemptions invoked, Jenna suggested that there are some indicators that can be observed when considering an appeal. These include the citing of many exemptions, engagement of the public interest test without taking into account the factors in favour of disclosure, the absence of explanation for why an exemption has been invoked, and the application of exemptions in a very broad and generic way. If any of these patterns are seen in the response, there may be solid ground for an appeal. There is a balance to be considered in “going hard” in the initial appeal with a detailed rebuttal (which is time consuming) or “going soft” with a more general appeal to reconsider the response (which takes less immediate time but may require follow up later).
As Rob noted, a key resource when challenging refused requests is the Information Commissioners Office (ICO), which provides guidance on when exemptions should and should not apply (see, for instance, ICO guidance on the public interest test). The ICO’s previous actions can also be valuable sources of information and support appeals.
Jenna and Rob both suggested that, whilst this is the point where things “get serious”, there can still be value to challenging a rejected appeal. You have three months from an unsatisfactory response to an internal review in which to lodge a complaint with the ICO. This is done via a form on the website, but you can attach supporting documentation, including your correspondence with the relevant authority. You should make the strongest possible argument… and then be prepared to wait. The lead-in time to be assigned a case officer can be nine months and the ICO is facing an increasing caseload, which is an important factor to consider when planning FOI into a research project.
A final stage, if the ICO upholds the authority’s refusal to disclose, is to appeal to the First Tier Tribunal for information rights. This should be done within 28 days of the ICO’s Decision Notice and is free to initiate, but is time-consuming, and legal assistance is recommended.
Keep an eye on the NCRM website for further events and resources on using FOI in social research, and follow these links if you want to read more about Jenna’s work and Rob’s research.
Why FOI requests are a powerful but under-used research tool
Freedom of information at the EU – who can access what and how?