Monday
Sep122011
by 
Bishop Hill
Bishop Hill FOI fail
Sep 12, 2011 FOI Much amusement at this response to a (non-climate-related) FOI request: the government department involved inadvertently copied their internal discussion about how to respond to the requester:
There is another, wide-ranging FOI request for all unpublished reports. I have provided Peter Parr with a list of relevant documents from across the Directorate, with the exception of the Bill Team where Georgina has said that it would take in excess of the time limit to conduct a search. Peter is putting up a draft response to Ministers on that basis.
I'm not sure if I'm comfortable with the idea of responses to FOI requests being run past ministers. Should ministers be involved in legal compliance matters?
Reader Comments (29)
Yes. I can understand the minister wanting to be informed. But the use of the word "draft" suggests that the minister has some say in the content. This is worrying. Does the FOI law say something about this ?
Mr Cotterell now understands the ohnosecond, which is the unit of time taken from clicking "send" to realising they shouldn't have.
Expect an increasing use of the 'too expensive' get-out-of-jail' card, until it becomes as ubiquitous and all-encompassing as the BBC's 'for-the-purposes-of-journalism' one.
Maybe the FOI request was actually made by the ministers themselves?
In an ideal world, you would simply ask and everything would be disclosed, but in the real world, it's probably right that ministers have an opportunity to see what's going out in case there are ramifications, security considerations, commercial confidentiality etc. Of course, there should be very good grounds not to comply, but this pre disclosure consideration does not alarm me unduly.
Mike Fowle - why is it "probably right" that ministers need to have advance involvement? They can simply be copied on any FOI as it is met with a simple "FYI" and, if appropriate, some comment or briefing on any implications.
Atomic Hairdryer above, at 12.32, was faster off the mark than I
:-(
Mind - I did enjoy seeing that 'omigawd'-e-mail by Mr Cotterell!
In his memoirs Tony Blair said FOI was his biggest mistake. Well, he was right in a way because he didn't make the rules strict enough on government. It's too easy at the moment to side-step requests for information. Of course what he meant was that he would have preferred no FOI law at all!
I just read the link BH provided in the post.
It seems the request was made by one Steve Elibank. If you then follow his link it seems he has made some 558 FoI requests!
That certainly seems to put Messrs. McIntyre and Holland handful of FoI requests to UEA etc. into perspective.
Sir Humphrey Appleby: "How are things at the Campaign for the Freedom of Information, by the way?"
Sir Arnold Robinson: "Sorry, I can't talk about that."
From "Yes Minister", in 1984!
I don't regard it as something to be uncomfortable about (checking with ministers, that is).
If you have to do something that, whatever course you take, is likely to have repercussions, normal prudence involves running what you propose to do past your boss. [Sorry for the business-speak wording.]
Martin A - normal prudence should mean complying with the law.
I suspect this problem was known when the legislation was initially conceived. An intentional loop-hole so to speak. The crafters of this legislation certainly were aware that FOI could (and would) be used on their own work at some point in the future and needed to guarantee an escape clause. Ambiguous laws tend to be that way, IMO.
Mark
not banned yet Martin A - normal prudence should mean complying with the law.
I completely agree.
Maybe I missed a point somewhere - I assumed that showing a draft response to ministers was not illegal in any way.
Martin A - Imagine a world where traffic offences were to be send in draft format to one or more ministers...
Yes, Minister,
Sir Humphrey: Minister I have something to say to you which you may not like to hear.
Minister: Why should today be any different.
Sir Humphrey: Minister, the traditional allocation of executive responsibilities has always been so determined as to liberate the Ministerial incumbent from the administrative minutiae by devolving the managerial functions to those whose experience and qualifications have better formed them for the performance of such humble offices, thereby releasing their political overlords for the more onerous duties and profound deliberations which are the inevitable concomitant of their exalted position.
Minister: Now, whatever made you think I wouldn't want to hear that.
Sir Humphrey: Well I though it might upset you.
Minister: How could it, I didn't understand a single word. Humphrey for God's sake, for once in your life put it into plain English.
Sir Humphrey: If you insist. You are not here to run this Department.
- The Right to Know
I've been involved in "severing" (i.e., editing, or, not so nicely, censoring) FOI requests at a provincial ministry here in Canada.
I know there would be differences, but our "here's your information [or what's left after we took out what we don't think you should have]" letters were signed by nobody higher on the org chart than a Director. Very seldom would even an Executive Director, an Assistant Deputy Minister, and Associate Deputy Minister, or a Deputy Minister even be aware of the request.
With regards to the "ohnosecond": a colleague hit "reply to all" once, and sent our lawyer's opinion (non-FOI) of someone's request back to the requestor. My suggestion (thankfully taken) was to...just....be...quiet...and...hope...he...doesn't...notice.
That's why I believe all FOI requests, particularly those that are refused, should be followed up for all internal documents, emails, and minutes relating to the request.
Martin A - "Maybe I missed a point somewhere - I assumed that showing a draft response to ministers was not illegal in any way."
Yes, I think you did. Anything can happen between a draft and a final.
nby -
If the ministers, on seeing the draft, were to change it so that it no longer complied with the law, that would obviously be wrong.
But showing it to the ministers, who ultimately are the civil servants boss, and saying "this is what we propose sending as a reply", is illegal in some way? Sorry - I still don't get it.
"this is what we propose sending as a reply"
Why ask the minister any question?
So the minister says ok - they were going to do it anyway - no issue.
Minister says no. It's too embarrassing. What now? They have the information and they are hiding it.
There is no point in asking the minister.
Martin A -
"this is what we propose sending as a reply" is not the same as
"this is what we will send as a reply and we will do it forthwith" which actually should be
"this is the reply we have furnished to FOI request X," optionally accompanied by
"please see attached notes for background"
Nick - agreed.
In an idealised world (where FOI laws probably would not be needed anyway) all this would be fine.
In reality, either...
- The minister says "yes" and then all hell breaks loose - no problem. The civil servant's career progresses from strength to strength.
But if the civil servant had sent the FOI'd info, without the minster responsible for the department that generated the info having been consulted, and then all hell breaks loose... I rather imagine that their next performance appraisal will have them rated as "lacks judgement" or some similar career-blocking evaluation.
- The minister says "Can it!" (having been advised that the law says it has to be sent)... At that point, I think it is the minister has broken the law. I presume the civil service has a protocol for dealing with illegal instructions from ministers though I have no idea what it might be. I don't think in reality civil servants are in a position to say "I'm not going to show this to a minister because it might inspire them to give me an illegal instruction".
I think that the difference between nby's + Nick's view and mine explained as follows.
My view is that the minister has responsibility for their department. Therefore they have a right to see anything going out from their department and to change it if they wish (all the time complying with the law).
I infer that nby and Nick view it differently.
Martin A - have you ever needed to use FOI?
Martin A - have you ever needed to use FOI?
Yes.
Was it successful? Did you get the information you needed? Did anything else ride on you getting that information? Did it arrive in time for it to be of value? Did it arrive in a format which meant you could make best use of it? Was its nature and the use you have for it critical of, or embarrassing to, an official body? Was it a single item you needed or was it one of series? If so did you need everything in the series to be supplied in order for you to be able to progress? Were there any deadlines which once expired meant that your efforts would be frustrated etc etc.
There a many ways that FOI can be abused such that its value to individuals and society is undermined. And AFAIK they are all contrary to the spirit and intent of the law. Yet they all go on. And IMO they are all prime tactical options enabled by the briefing process of drafts. (See Another Anon above).
It was a very simple request to the UEA about their procedures for approving payments. In contrast to many FOI responses we have seen from UEA, it all went exactly as it should. [But I have not yet followed up with further FOI requests for documentation showing whether or not their procedures were followed for certain specific payments.]
I agree completely that FOI is currently abused in many ways and this is quite wrong and should be stopped by strengthening FOI laws and their enforcement. It's simply that I don't see anything untoward with the minister in charge of a department being asked what they think of a draft response - since ultimately they have responsibility for what their department does.
If it were a private company that had been FOI'd for information generated at public expense, I'd similarly see nothing untoward with its managing director being shown a draft prior to the information being sent out.
Martin A - Lets say you are working on a something which for which you need a fair amount of background information. Lets say it is a public proposal of some kind which you have serious reservations about and your gut feel is that it is not being progressed on the basis of due process but some yet to be identified motivation. Perhaps there are six key pieces of information you need but it is only by having information item "n" that you know which "n+1" to request. Hence you have a need for 6 sequential FOIs to be met. Now lets say that the proposal reaches its cutoff for challenge in 6 months. Lets say the items you need are electronic copies of preexisting documents which can be copied and forwarded in less time than it will have taken me to type this comment and for you to read it. So your diligent FOI officer will be able to service your sequential requests in less than two shakes. However on seeing the draft response and being appraised of the implications etc etc your minister suggests that the request really shouldn't be met with any great urgency and, after all, you have up to 20 working days to respond...
...six months later, just after the cutoff expires you receive the last piece of information you requested.
And that's without getting into any of the other bag of tricks at their disposal.
PS I don't think you can FOI a private company.