Internal affairs
Five years on from the introduction of the Freedom of Information (FOI) Act, the Information Commissioner has complained that many public authorities are struggling to comply with requests for information and the number of FOI internal reviews almost trebled in the year to 2009. Louise Townsend looks at how public bodies can best approach the complaints handling process.
In 2009, monitored central government bodies alone received a total of 40,548 non-routine Freedom of Information (FOI) and Environmental Information Regulations (EIR) requests. 1,502 internal reviews were reported as initiated in 2009 on the grounds that some or all of the requested information was originally withheld, this was up 543 on the previous year. Forty-three per cent of internal reviews took 20 working days or less, 42% took between 21 and 40 working days and a further 15% took longer than 60 working days. And these statistics are only for central government. With 100,000+ public bodies in the UK this is just the tip of the iceberg.
The importance of appropriate internal procedures has been highlighted in a very recent enforcement notice that after five years of the FOI being fully in force public authorities are still having problems complying with the requirements of the FOI. The Information Commissioner issued an enforcement notice on 11 June 2010 against the Independent Police Complaints Commission (IPCC). The IPCC had a backlog of 72 requests, of these 69 were out of time. The Information Commissioner has required the IPCC to deal with all the out of time requests by 30 September 2010.
Public authorities need to have an internal independent complaints handling process to effectively deal with aggrieved applicants who have made requests for information and enquires from the Information Commissioner. Where a request for information, either under FOI or EIR, is refused the authority must notify the applicant of the procedure for review or complaint, this is a statutory requirement for an EIR request and, while it is not a statutory requirement for FOI requests, it is required by the section 45 Code of Practice.
Under the FOI section 45 Code of Practice every public authority should have a review/complaints procedure in place and someone independent from the original request in place to conduct the reviews. The internal review should review the entire decision made in response to the information request.
There is no statutory timescale for a FOI review, however, the Information Commissioner recommends reviews should be concluded in 20 working days and should not exceed 40 working days. Under the EIR a complainant has 40 working days to submit a request for review and the authority must complete its review within 40 working days of receiving the review.
What can a review be about
Usually an applicant will want the authority to reconsider a refusal to supply information, but complainants can also raise complaints about an authority's compliance with its publication scheme, whether an authority has complied with proper procedures, whether an authority has applied the rules on charging and time limits properly, and the format of the information supplied.
Running the review process
Ideally someone in the authority should take ownership of the review process and ensure that it is smoothly run. They should have responsibility for setting up the process whereby reviewers are chosen, ensuring that the reviewers are trained and that this training is refreshed, ensuring that management are alerted to any possible problems with reviewers, and take responsibility for running the review process as a whole.
When allocating reviewers it is worth considering the nature of a particular review, if the matter is more sensitive allocating someone more senior with the experience and authority to deal with the matter independently is very beneficial to the review process.
It is also worth considering allocating reviewers centrally, even though the requests for information may be dealt with on a department by department basis. It is important that the process is treated seriously by the organisation. Organisations that have FOI reviews managed at a junior level may find it hard to get the appropriate level of buy in both at the request stage and the review stage.
Managing the process centrally also allows the individual who is in charge of the internal review process to require the reviewer to submit a report, this can then be checked for consistency with other responses from within the organisation and that the report follows the same format. In addition, if the reviewer is allocated centrally and then submitting the report back it is easier to keep control of timings.
Handling the Review
When a request is received it is worth considering if another search for the requested material needs to be conducted, this will however depend upon the particular case. Going forward the reviewer will need certain materials to be able to conduct their review, these include copies of the entire correspondence with the applicant, the results of the original search (and possibly a note of the methodology of the original search), a copy of the refusal letter sent to the applicant, copies of any relevant legislation/Codes of Practice/guidance notes, and relevant decisions.
It is important to make sure that all materials are up-to-date, especially any legislation etc and decisions, as public policy and the information published is ever changing.
The original decision maker can act as a witness, but their role is not to try and influence the reviewer but to explain what they took into account and why the decision was made. This is made easier by reviewers being allocated centrally rather than from within the relevant department. This may seem obvious but anecdotally it appears that some authorities in effect ask the original decision maker to review their own decision.
Initially, as part of reviewing the decision it is worth checking: the original response was sent within the correct timescales; dealt with all of the request; had complied with the requirements for a refusal notice (if appropriate); and that the duty to confirm or deny had been considered. The reviewer should also check that the correct legislation has been applied, for example to ensure that a Subject Access Request has not been dealt with as a FOI request.
The next step is to check that all the relevant exemptions have been considered, considering each separately, and checking if third parties have been consulted. The public interest test, as applicable, should then be considered in respect of each separate exemption being applied.
In a recent Information Commissioner's decision notice the MoD were criticised for failing to provide a refusal notice that cited the exemptions relied upon within 20 working days and for not issuing a decision on the public interest test within a reasonable time. Also the Commissioner expressed concern that it took over 60 working days for the internal review to be completed. It is important to get the internal procedures right, repeated failures to follow correct procedures may lead to the Information Commissioner issuing an enforcement notice.
Once the review has been completed the applicant should then be informed of the decision.
Benefits of having an Internal Review Procedure
There are many benefits to having an internal review procedure. Primarily, it ensures conformity with the codes of practice, and in the case of an EIR review it is obligatory to have an internal review procedure. The review process provides an authority with an opportunity to correct most breaches, mistakes or errors.
In addition to this the review process should enhance the authority's reputation, and should result in fewer complaints being made to the Information Commissioner about the handling of requests.
The review may also highlight other problems within the organisation. It is important that any issues are addressed. It may be worth asking the reviewer to highlight these in a separate report so they can be referred to the relevant department.
After the review
Finally, if a complaint is then made to the Information Commissioner the Commissioner will want to see the audit trail of the original request and the review process. It is therefore important to keep a proper record of the review and any relevant documentation.
Louise Townsend is a Senior Associate at Pinsent Masons
Telephone: 0161 234 8359
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