Journalists who get frustrated by delays and obstructions when they use the Freedom of Information Act have a valuable new tool.
Ironically, it’s been issued to public authorities by the Information Commission.
They have produced a new ‘plain English’ guide for public authorities. It sets out their obligations and gives practical advice on dealing with problems.
But journalists can quote it back to unhelpful officials, who sometimes say ‘No’ because they’re too busy or do not understand the law.
Here are some rights and wrongs, based on the new guidelines
- We couldn’t process your request because it didn’t mention the FOIA.
WRONG: Journalists don’t have to mention the FOIA when they make a request (though it’s best to).
- Your request was sent to the wrong department.
WRONG: it just has to be sent to the authority concerned, not to any individual or department.
- We don’t accept requests by email.
WRONG: requests can be made can be made by email, online or by Twitter and Facebook if the authority uses them.
- I didn’t realise it was an FOIA request.
WRONG: Staff have a legal responsibility to determine if a query is a FOIA request when they first receive it.
- You didn’t give your name.
RIGHT: you should give your name. This can be a business name, or someone else can ask on your behalf. Staff can check your ID in some circumstances.
- You didn’t give your address.
RIGHT: the request should include an address – home, work or email will do.
- You haven’t told us which documents you want.
WRONG: the Act says you can ask for information. You don’t have to name specific documents. It’s up to the authority to find all the information you want. In fact, if you ask for specific documents, you may just get those, and miss other things.
- You can’t ask for information verbally.
WRONG: you can ask for environmental information verbally, but nothing else.
- Sorry, but it’s not my job to help you.
WRONG: authorities have a legal duty to explain your rights and help you submit an FOIA request.
- Sorry, you’re not allowed to ask questions – you can only request information.
WRONG: you can phrase your request as a question, and the authority must deal with it in the usual way.
- My job’s just to provide information – not to answer questions or explain it.
WRONG: the guidelines tell staff: … ‘This doesn’t prevent you providing answers or explanations as well, as a matter of normal customer service’.
- We’re a school – we take longer to deal with queries.
RIGHT: Schools have deadlines of 20 school days, or 60 working days, whichever is the shorter.
- Sorry, the bank holiday slowed us down.
RIGHT: Saturdays, Sundays and bank holidays don’t count as working days.
- We’re taking a long time because your request went to another department.
WRONG: the 20 working day deadline starts as soon as the authority receives the request.
- Sorry, we ignored your request because we couldn’t understand it.
WRONG: Staff can contact you and ask for clarification.
- I’m not answering that – I don’t like your tone.
WRONG: Staff must ignore the tone of your request.
- I’m not dealing with you – you’re a journalist.
WRONG: authorities cannot reject or obstruct a request because you’re a journalist, or because of their previous experiences of you.
- Sorry, but your request wasn’t clear enough. We didn’t deal with it.
WRONG: the authority should contact you ASAP to get clarification, and maybe offer help.
- We don’t have this information – and I don’t know who does.
POSSIBLY: the authority will usually tell you if it does not hold the information you asked for. But it does not have to tell you who holds it, though they might point you to someone else if they know.
- I can’t tell you whether or not we hold this information.
POSSIBLY: in some circumstances, an authority can issue a ‘neither confirm nor deny’ (NCND) response.
- Sorry, finding this out will take too long.
POSSIBLY: authorities have the right to turn down requests that are an ‘unreasonable burden on their resources’. They may agree a charge with you.
- We can’t give you the information, and I’m not going to tell you if we hold it or not.
WRONG: staff should tell you if they hold information that they have refused to give you, but they don’t have to explain it. See 20 above, though.
- We can’t give you this information – it’s full of errors.
WRONG: staff still have to give you the information, even if it contains inaccuracies or is out of date. But they should tell you, and may offer additional information to put it in context.
- We can’t give you this, it’s marked for deletion.
WRONG: staff have been told it’s not good practice to continue with a scheduled deletion if someone has requested the information. It’s a criminal offence for them to delete information because it could create embarrassment or bad publicity.
- Sorry, you can’t have this information in printed format.
WRONG: you can state format you want at the time you make your request.
- We’ve got to charge you for this.
RIGHT: authorities can change for requests in certain circumstances.
- Can’t help – you’ve asked this already.
RIGHT: authorities can reject your request on this basis.
- We can’t tell you this – the person’s dead.
RIGHT: the Data Protection has doesn’t cover dead people. But information about them may still be withheld if it was confidential in the first place.
- I’m not going to help you – you’re a pain in the neck.
WRONG: Authorities can reject requests that are ‘vexatious’. But this applies to the request, not the person asking it. A request can be vexatious if:
- it creates too much work
- your tone or manner is discourteous
- the request is obsessive
- there’s no value in the request.
Cleland Thom is a trainer and consultant in media law