The art of sending a successful freedom of information request

Commenting on my previous post Andrew Carey writes:

Submitting FOI requests that meet the criteria to get an answer is a bit of a craft as well as hard work.

That's very true, and I don’t always get it right.

Over the years I have submitted many freedom of information requests, several designed to elicit correspondence between anti-smoking campaigners and ministers and civil servants.

This is not as simple as it sounds, especially if there is a large volume of emails or letters and the identities of the relevant civil servants are unknown.

For example, I recently submitted a request for copies of all correspondence between a certain group and the Department of Health and Social Care (DHSC) over a six-month period.

Instead of the information I was hoping to get I received this reply:

DHSC may hold information relevant to your request. However, to provide the information as it is currently framed would exceed the appropriate cost limit set out in the FOIA [Freedom of Information Act].

Section 12(1) of the FOIA means public authorities are not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit. The appropriate limit for DHSC is set at £600, which represents the cost of one person spending 24 working hours determining whether we hold the information, and then locating, retrieving and extracting the information.

Although we cannot answer your request at the moment, we may be able to answer a refined request within the cost limit ... Please be aware that we cannot guarantee at this stage that a refined request would fall within the FOIA cost limit, or that other exemptions will not apply.

Lesson learned. I'll try again and this time I'll refine my request as suggested.

A further problem is that information is sometimes withheld under another section of the FOI Act 'which states that public bodies are not obliged to disclose information that is intended for future publication'.

In Scotland (and probably England but I haven't read the FOI Act in full) information may also be withheld 'because disclosure of the information would or would be likely to inhibit substantially the free and frank exchange of advice (or views) for the purposes of deliberation':

It is essential for officials to be able to communicate/meet, often in confidence, with external stakeholders on a range of issues. Disclosing the content of these communications particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future.

These stakeholders will be reluctant to participate in meetings or provide their views fully and frankly if they believe that their views are likely to be made public, particularly while these discussions are still on-going and decisions have not been taken. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions ...

We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s policy position until the Government as a whole can adopt a policy that is sound and likely to be effective.

This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence, such as that provided by [x]. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish government and these stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

I understand the argument but it sounds to me like a recipe for behind-closed-door policy making.

What if the 'fully informed advice and evidence' is not just debatable but genuinely controversial or wrong?

Stakeholders not invited to participate must be allowed to challenge the 'advice and evidence' presented to Government in private meetings and how are we to do that if we are denied full freedom of information?

Talking of FOIs, I am reminded that in April 2015 I acquired a letter that had been sent to Swindon Borough Council by Deborah Arnott, CEO of ASH.

Dated October 9, 2014, it requested that 'where information from non-governmental and other organisations will be made public, councils should follow good practice and notify those organisations affected ahead of any release', before adding:

There are a number of reasons why we are keen to ensure organisations in tobacco control have a chance to review any information which will be going into the public domain.

The first reason was 'threats of violence and direct abuse directed at ASH staff and other working in tobacco control'.

The second concerned 'some written materials which are shared with council staff to assist in developing future policy, including early drafts of documents which are intended for later publication. In line with the [Freedom of Information] Act it may not be appropriate to release this information.'

According to Arnott:

Some recent tobacco industry requests have been very broad in their scope, covering a number of years and not defining the topic on which they are requesting information. We would urge councils to consider these requests with caution [my emphasis], and when necessary and in line with the legislation to ask for further and better particulars of such requests.

At the time I was staggered that ASH would attempt to influence what information councils released under the Freedom of Information Act, but nothing surprises me any more.

Full story: ASH advises councils on best practice concerning Freedom of Information (Taking Liberties, April 30, 2015).