One Source Dec 19 Deputy Director

Tower Hamlets Dec 19 Updated 600 3

Caselines Information Law
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When is an FOI request not an FOI request?

Susan Wolf sets what organisations should bear in mind when considering whether something is 'business as usual' or an FOI request.

During a recent FOI A-Z course a delegate asked me what seemed like the simplest of questions: “How do we know whether something is business as usual, or an FOI request”? Naturally enough that gave rise to an interesting short discussion in which delegates expressed different views based on their practice and organisational policies. What became clear though, was that this seemingly simple question is anything but. So, how do organisations and practitioners know whether something is ‘business as usual’ or an FOI request?

Before attempting to answer this question, it is important to remind ourselves what a valid request under the Act looks like. S. 8 of the Freedom of Information Act (FOI) states that a request for information under the Act must:

  • Be in writing (this must be legible and can include electronic communication)
  • State the name of the applicant and the address for correspondence
  • Describe the information requested

This means that there is a degree of legal formality about an FOI request, particularly the need for it to be in writing. However, as the ICO guidance notes, this is not a hard test to satisfy and “almost anything in writing which asks for information will count as a request under the Act”.  So far so good. On this logic any communication in writing, that includes a request for information, is to be regarded as a request under the Act and must be dealt with accordingly.

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Requestors do not need to mention the Act or even direct their request to a designated FOI practitioner or team. Of course, where a requestor specifically mentions the Act this makes life easier and the request should be dealt with as an FOI request.

Responding to FOIA requests: Section 1

S.1 states that on receipt of a valid FOI request public authorities must do two things:

  • First, they must provide a written response which either confirms or denies that they hold the information (the duty to confirm or deny) (S. 1(a)); and
  • They must communicate the information to the applicant (unless any exemption(s) apply). It is useful to point out that the Act does not require that the communication is in writing, albeit this is most likely particularly when requests are made by email/letter. However, S. 1(b) does allow for the oral communication of information.

However, what is perhaps less well known is that S.1(5) states that a public authority is deemed to have complied with (1)(a) where it has communicated the information to the applicant under 1(b). For instance, if a public authority receives an email request for a standard piece of information and it replies with an email attachment, or phones the applicant and tells them the information, then they are deemed to have complied with their duty to confirm or deny, without actually formally using these words. But this would still be a request under the Act and ought to be recorded as such.

So what is the problem?

The difficulty arises, in part, because of the advice given in the various guidance from the Information Commissioner’s Office and the revised S. 45 Code of Practice (see our blog on this code here) which both suggest that there are some circumstances where, despite the validity of a request, it may be more appropriate to deal with it outside of the Act.

  • The Code of Practice advises that, “information given out as part of routine business, for example, standard responses to general enquiries” does not need to be dealt with under the Act.
  • The ICO Guide states that, “It will often be most sensible and provide better customer service to deal with it as a normal customer enquiry under your usual customer service procedures”. The ICO offers two examples of a normal customer enquiry; where a member of the public wants to know what date their rubbish will be collected, or whether a school has a space for their child. The ICO’s corresponding Flowchart refers to these as requests ‘in the normal course of business’.
  • The ICO’s Guidance on Recognising a Request under the FOA states that If the requested information can be quickly and easily sent to the requester then it may be better dealt with in ‘the normal course of business’; for example, a request for a current leaflet.
  • The ICO Guide elaborates by saying that the provisions of the Act only need to come into force if a public authority “cannot provide the requested information straight away” or the requestor “makes it clear that they expect the request to be dealt with under the Act”.

All the above appear to suggest that public authorities have a degree of discretion in deciding whether a seemingly valid request for information should be treated as a formal request under the Act or whether it can simply provide the information without going through the formalities of the Act.

Little wonder then that FOI practitioners struggle and ask the seemingly simple question that prompted this article! In response I would offer the following thoughts, which may be useful to bear in mind when contemplating whether a request is an FOI request or not:

  1. The Act is legally binding, and it states that valid requests (defined in S.8) must be dealt with as requests under the Act. The guidance is not legally binding and has no legal authority.
  2. The formalities of the Act are not onerous in circumstances where a public authority is not applying an exemption. Remember, S.1 (5) states that by communicating the information to the applicant you are deemed to have complied with your duty to confirm or deny that you hold the information.
  3. The revised Code of Practice recommends that all public authorities with more than 100 full time equivalent employees publish their FOI compliance statistics on their publication schemes on a quarterly basis.
  4. FOI practitioners frequently say that they are under resourced and heavily burdened. Recording all request for information as requests under the Act (as opposed to disclosing informally) will help provide a truer reflection of the volume of request made to public authorities.

Once we know what an FOI request is, the next question is who can make a request? What about Spiderman? The answer is here.

Susan Wolf is a Consultant at Act Now Training. This article first appeared on the Act Now Blog. Information on the company's courses can be found on Local Government Lawyer's courses and events section.

Act Now has a series of FOI workshops covering the basics as well as more advanced topics such as exemptions. Its FOI Practitioner Certificate is popular with FOI officers seeking a formal qualification. Act Now’s trainers are available to deliver customised in house training, health checks and audits. Please read the testimonials from satisfied clients and get in touch if you would like a no obligation quote.

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