FOI Daily

There is already rumbling controversy in the Northern Ireland press about a decision by the Information Commissioner to uphold a decision by Ards and North Down Borough Council. The council withheld the names of councillors who asked to 'call-in' or reconsider a decision to fly the Union flag on war memorials 365 days a year. This was on the basis that disclosure would be a breach of the UK GDPR. Flags are obviously a contentious issue in NI and especially in the light of comments on social media, the councillors in question object to their names being disclosed. Ordinarily, I'd be very sceptical about this - councillors are elected officials, accountable to the public. But as the Commissioner says "Call-In requisitions are not normally made public but discussed ‘in confidence’ especially when legal advice has been sought". This means that the councillors in question would have different expectations than in other situations. The FOI Act defers to UK GDPR here and the crucial test is that of legitimate interests - is the disclosure necessary for a legitimate interest, and is that overridden by the rights of the councillors? The ICO decision is that there is plainly a legitimate interest in scrutiny of the decision, especially given its contentious nature. But they find this is overridden by the risks to the councillors' health and safety. Many FOI decisions are a judgement call and especially if you're in NI, your reaction to the outcome might be coloured by your politics either way. What I can say is that the Commissioner's decision is balanced and rational, so it's hard to say that it's 'wrong'. https://lnkd.in/erNZd6qf

An applicant requested a file from the National Archives entitled "Venezuela: commercial treaty; revolutionary attempts against the government; 1825-1886". It contains correspondence between various British Government officials, representatives of the Venezuelan government and the Governor of Trinidad. The contents include negotiations over a potential replacement trade treaty between Great Britain and Venezuela, the impact of tariffs on the then-British colony of Trinidad and information about a possible coup attempt. After consulting the Foreign Office, TNA said that disclosure would prejudice international relations as the file contains some information that might be relevant to the current dispute between Venezuela and neighbouring Guyana about where the former's eastern border should be. The TNA claims that government officials need to know that they can discuss matters freely and frankly - disclosure might inhibit their ability to be candid. The Commissioner is unimpressed: "the Commissioner has difficulty in believing that the robust officials working for the FCDO today are unduly concerned by how their expressed views might look to a contemporary audience in the year 2155 or beyond". There is no hint of considering the public interest - the Commissioner doesn't accept that the exemption applies. This is a very detailed and robustly written decision, rejecting the TNA's arguments with repeated emphasis on the absence of strong arguments about where the harm would lie. As the decision acknowledges, the Commissioner is reluctant to second-guess the Foreign Office's expertise on diplomacy, but here, it's a tough ask to believe that present day politicians or officials will bite their tongue in case their thoughts are revealed in an era when (as the decision almost sarcastically observes) they won't even have surviving grandchildren. On the face of it, this is an issue that won't affect many readers; but it's worth reading to see how the regulator knocks down generic arguments. https://lnkd.in/euu8EddN

Part of my exercise from yesterday is unfair; the applicant possibly doesn't know that FOI doesn't allow you to ask for information to be corrected (even if it is unambiguously wrong). Indeed, they may know full well, but be choosing to combine an FOI request and non-FOI communication. This is a very bad idea from the applicant's perspective though; it confuses things and even though they shouldn't do so, the ICO's FOI people (one in particular) have a tendency to get prickly if a request is overtly critical. To be clear, they should be above this, but from a tactical perspective, the applicant should still act in a way calculated to get the best result. So here's my version: "My request is about ICO decision notice IC -326848 -W4X1. In relation to points 31 + 32 in the DN, could you provide recorded information that shows who was meant by 'Senior Leaders' and 'Junior Staff Members' ? Please provide recorded information that shows why only people with titles “head of”, “chief” or “director of” were unredacted and tell me how many names were redacted? Please provide any recorded information that would show why the Commissioner said that the case of 'Patient E', 'does not relate to any process of disclosure, nor to any other incident in which the public authorities conduct has been criticised'?" I'm not saying that I am immune from commentary and occasional grandstanding when making a request; but as righteous as I might feel in the moment, I know it's a distraction and I try to hold it down. This is the original: did I miss anything? https://lnkd.in/et2wAthF

Whether you’re an applicant or an FOI officer, there’s an interesting exercise for you here. What information is the applicant asking for, and is this the clearest and most effective way to request it? A lot of requests contain contextual information; sometimes this is to direct the public authority to the right issue, but sometimes it’s just editorialising. If you succumb to grandstanding, there’s a danger that your request gets lost. I think this request is much harder to understand than it needs to be. There’s an obvious problem where the applicant asks for something that FOIA doesn’t entitle you to ask for, but it’s not the only problem. Whether you put it in a comment or not, have a go at tidying it up. I’ll give you my version tomorrow. https://lnkd.in/et2wAthF

Yesterday, I complained in my DPO post about the Information Commissioner's rather desperate tendency to announce GDPR action when it's still in its preliminary stage, even though the final action sometimes doesn't happen. Today, I'm writing about a different, contrasting problem with the Commissioner's approach to FOI enforcement - they sometimes sneak it out. Yesterday, the Commissioner published an enforcement notice that was issued at the start of January. This one is notable - the Commissioner often gives his FOI targets six months to clear their backlogs, but Dorset County Hospital NHS Trust had just under two. The Trust actually wrote to the Commissioner about their enormous backlog = 1000 outstanding requests, with an average of 15% being answered on time. This is as bad as it gets, and it seems that a neighbouring trust started handling FOI for DCHT and it's when they saw the mess that they dragged the ICO in. I haven't seen the letter so I don't know whether they were hoping for a reprieve, but they didn't get one. I can see an argument that maybe the Commissioner doesn't want to promote this one because they don't want public authorities to keep it quiet when they have problems. But I think the wider message that if you take your eye off FOI, the Commissioner will enforce is the one they should be spreading. Perhaps I'm being unfair and the ICO will promote it today, but it's not like the regulator has been a whirlwind of action in 2025, so they could have announced this any time. The odd position is that Edwards is completely inactive on GDPR but doesn't want anyone to realise that, but at the same time, he allows a proactive approach to FOI enforcement but he doesn't seem to want anyone to know. https://lnkd.in/eMPSPpxm

On FOI / EIR courses, I’’m often asked if parking should be dealt with under FOI or EIR. Whether you’re thinking about lines and signs that physically affect the state of the land, or measures to regulate and control road use which will impact both actual road conditions and air quality, I think a lot of parking issues get caught by EIR. In a recent decision on Birmingham City Council’s handling of specific traffic regulation orders (TROs), the Information Commissioner said the request should have been dealt with under EIR not FOI. Whatever the intention of the TROs, the ICO says they’re likely to have an impact on the environment. The third limb of the environmental information definition covers measures and activities affecting or likely to affect the environment. Intent isn’t the primary question; you can do something that has an impact on the environment without intending to do so. This possibly trips up organisations; they think of FOI first, and if an action doesn't have a deliberate environmental objective, they don't think about the alternative. https://lnkd.in/eDsAUmPU

If you're going to give information out, it might not seem worth working out whether the information is covered by EIR or not. You write the 'here you go' response in a way that doesn't fully commit to FOI and EIR and move on to the next thing. Over the years, I've wondered how much it is worth considering whether the data is covered by EIR if you're not actively refusing and so it's essential to do so. Even when you don't hold data, FOI and EIR handle it differently. Under FOI, you deny that the information is held. Under EIR, you formally refuse to provide the information under R12(5)(a) in England / Wales / Northern Ireland or R10(4)(a) in Scotland. In practice, the average applicant doesn't care about the formalities and you can just tell them not held. Some organisations prefer to be legally specific, some opt for plain language. I can't say which I prefer; the most important thing is getting the substance right. A friend of mine got into an almighty tussle with an applicant who didn't believe that no information was held about a particular parking issue. The applicant asked for an internal review and the reviewer (a precise sort of individual) decided that if the information had been held, it would have been environmental. But they also decided that it wasn't held. I'm sure they were right, and the thinking was that if they at least acknowledged that the first response was imperfect, the applicant might feel some element of vindication. There's a genre of applicant who is less concerned with the actual information that in winning some small victory over an organisation that they don't like. Instead, the applicant never shuts up about it, talking as if the initial mislabelling of the request was some of kind of deliberate slight. You can't win with some people. I think the mental discipline of thinking about the FOI / EIR question as often as possible is brain training. I think it's better to think about it when you don't need to than to forget it when you do. Even now, I see a lot of councils (organisations who really should be EIR-literate) getting it wrong on what should be standard EIR requests. I don't say this to be critical, but to emphasise that having to change horses mid-race can be difficult. It's better to start in the right place and build on your response. There are a whole host of requests for infomration that don't come close to the definition of environment information, but as soon as someone starts to ask about anything related to physical places, the little EIR voice should be talking in your ear.

This is definitely a decision that council FOI officers should read but there’s a lot to it and I think anyone in the sector should look at it. Following Nottingham City Council’s decision to sever ties with twin towns in Russia and Belarus, a campaign began to persuade them to do the same with Ningbo in China. The local Labour group held a meeting where they voted to retain the link. Council officers did not attend the meeting, though they did submit a report for councillors on the matter containing several options. As Labour control the council, the issue was deemed to be decided. The council argued that information about the meeting was held by the Labour Party not the council (inevitably, the Commissioner agreed with them). But the Tribunal’s reasoning is simple: “It is the Council, not the local Labour Party, that is the lead organisation in the twinning or friendship arrangements between Nottingham and other cities and towns. It is a function of the Council, not the local Labour party, to make decisions about whether or not to continue those relationships.” I think this is logical, and that the Labour Party held the data on behalf of the council. But I can imagine that many in local government will be uncomfortable about it, and unless Nottingham appeals, it’ll be worth pondering how ruling parties and the council are entwined. https://lnkd.in/e-SNKw8h

Section 50(2)(c) of the FOI Act 2000 is potentially confusing. It requires the Commissioner to make a decision when receiving a complaint about the outcome of an FOI request unless one of two criteria apply.  Permit me to pause here: the ICO's staff will pull all sorts of nonsense to avoid making a decision, and the very least applicants should do is ask which of the two criteria is in play. The Commissioner can refuse to deal with a complaint if it appears to him (AKA the staff his powers are delegated to) to be "frivolous or vexatious". The confusion arises in what those two criteria apply to. It's not the request itself; it's the complaint to the Commissioner.  A request might be deemed vexatious by the public authority, but the Commissioner will often accept and deal with a complaint about the outcome. A request might not have been labeled as such, but the Commissioner might regard the complaint to him about the outcome to be vexatious, and reject it. But how do the ICO staff determine whether the complaint is either vexatious or frivolous? Thanks to an FOI request published on the ICO disclosure log, we have an answer. You possibly think I am going to summarise it for you. I am typing this at 10.57pm on the 12th February and I have an early start in the morning. I love you all, but you're going to have to read it for yourself. https://lnkd.in/gtW7tQ4D

I remember the heady days of 2005 when FOI was still new, I was thinner and more hirsute, and public authorities could afford biscuits. Alas, those days are gone, but 'Terry Flemming', an applicant on What Do They Know (where else?) optimistically asked Wirral Council how much they had spent on digestive biscuits, broken down by brand. Needless to say, the council returned with an inevitable 'not held'. I don't know if this outcome is better or worse than the time Terry sought details of how much the British Transport Police had spent on tea bags - the answer was that it would take too long to find out. Such requests used to be more common, but seeing someone asking about such inane topic gave me a rush of nostalgia. I still remember how happy a facilities manager I worked with was when our employer replaced water coolers with drinking water taps - it was cheaper, more environmentally friendly and, he said with a grin, no more bloody FOIs. https://lnkd.in/eFh7QqWu