FOI: The council which does research on people making FOI requests

One of the key principles of the Freedom of Information Act is that authorities are supposed to ‘applicant blind’ – that is, everyone is treated equally.

There have been rumours – and on one or two occasions, the odd admission – that some councils don’t treat everyone equally, not least journalists. I know of some local authorities which insist the press office be briefed on FOI requests from journalists, and of health authorities which alert each other when a journalist makes an FOI request so they can all prepare the same response (eg information not held).

It’s for that reason that I know some journalists submit FOI requests using a gmail account rather than their work one, to reduce a perceived risk that their FOI request might be singled out for special treatment.

One council, however, appears to have gone a step further in terms of ignoring the principle of applicant blind … by preparing background notes on the requester to circulate among those being asked to deal with the request.

John Thornton contacted me on Twitter to flag up a case involving Hackney Council which had been spotted on Whatdotheyknow.com, the crowd-sourcing FOI website.

Rebecca Hemsley sent an FOI request to Hackney Council seeking details of the death of a youngster at a childrens’ home in 1985. As it turned out, Hackney didn’t hold any information on the case and it appears to be an example of the complex myriad of changes to responsibilities and structures at various local authorities making locating information a good while later nigh on impossible.

What Hackney did release – apparently by mistake – was a briefing note which was circulating within Hackney attached to Rebecca’s FOI request, which stated:

“Rebecca previously raised FOI CAS-652893-J09H0N re the Barratt Report and appears to be seeking links between former LBH employee Mark Trotter and alleged malpractice within Islington Council Social Services. This is in relation to a paedophile network based on a Hackney Council Estate at the time, associates of which were successfully convicted of a number of high profile child abduction incidents between 1985 and 1991, including the deaths of Mark Tildsley, Jason Swift and Barry Lewis.

“Rebecca participates in research and discussion activities on a blog site named cathyfox blog, primarily about releasing official reports on child sexual abuse and information that has been obtained from Freedom of Information requests usually from the  Whatdotheyknow.com website.”

Who that went to, we don’t know. But if ever there’s an example of ignoring applicant blind, it’s this. On one hand, you could argue that context could help an officer find the most useful information for a requester.

But the stronger argument – hence the inclusion of the applicant blind principle – is that the decision to release information should be done only on the merits of the Freedom of Information Act. Second-guessing motives and providing background on how the information might be used is utterly against that principle and runs a serious risk of prejudicing the entire process.

The Information Commissioner offers the following advice:

You must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data. The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers

You could argue that if you provide a briefing note on each requester, you are treating them all equally. You aren’t, however, giving officers sourcing information the chance to be applicant blind.

How widespread such briefing practices are, I don’t know. As for how to deal with requests for information on a requester if you work within a public authority, FOIMan has the following advice:

I’ve heard of FOI Officers and other staff being bawled at by very powerful people because they refused to provide this information. I’ve also heard of individuals who have decided to leave public bodies after being put under pressure in this way.

My own approach to this tricky issue is to routinely remove names and contact details from requests before circulating them. If someone wants to know who has made a request, I will initially tell them what kind of requester has made the request (eg private individual, journalist, business, etc.). If they insist on having a name, I will consider whether they have a legitimate need.

Providing briefing notes on the background of an FOI requester seems to be very far removed from that. One would hope Hackney doesn’t count researching FOI requesters against the FOI hours limit for each request….

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6 comments

  1. Being ‘applicant blind’ has been elevated to a mantra, in which common sense can sometimes get lost, but generally speaking, you’re right, everybody should be treated equally under the law, and most of the time, the requester’s motivation is either irrelevant or the last thing you consider when trying to figure out where the balance of public interests lies. But if you think you’ll ever be able stop this kind of research being conducted by some public authorities, or for some requests, I have a bridge to sell you. Information is power, and those who hold it want to know who might wield it against them.

  2. Fascinating post, David. (I write as both a fairly heavy user of FOI and someone doing local reporting in Hackney – though I’d emphasise that my thoughts below are not really specific to Hackney in any way).

    From what I pick up of it, I broadly agree with your position on this – for me the key section of what you write is:

    “You could argue that if you provide a briefing note on each requester, you are treating them all equally. You aren’t, however, giving officers sourcing information the chance to be applicant blind.”

    I think (and, to be clear, again – across all PAs; not just in Hackney) we have to trust that FOI officers are acting professionally and in full compliance with the FOI Act – and we should also expect these same standards from PA press officers.

    But I think there’s a greater risk that the public authority official who *actually has to dig out the info requested* might vary the amount of effort they put into responding to a request depending who the applicant is.

    In the vast majority of cases where this would happen it would happen unconsciously, I’m sure.

    But I think it’s fair to say that in a typical public authority the official who has to dig out the info will already be at full stretch carrying out their core function *before* the FOI request lands on their desk. It therefore seems implausible to think the amount of effort they put in wouldn’t be (unconsciously) affected if the requester happened to be that neighbour of theirs who they had a dispute over a boundary wall with, or that repeat requester who has uncovered awkward truths in the past.

    FOIMan’s approach (quoted in the post) therefore seems a fully justified and principled one to take.

    It’d be fascinating to know if anyone had carried out any research into how common it is for details of requesters’ identities to be passed across from FOI teams to others within the PA.

  3. In the real world, though, because response to FOI requests is an exercise of judgement carried out in a complex organisation there is sense to the organisation ensuring consistency in its responses, in order to avoid the service-affecting cost and disruption of dealing with further requests, and this is more true when requests are sent to multiple bodies. It could also be said that the adversarial approach taken by the requester (“£500 a day”) is a good example of why authorities take this approach (not to mention the propensity of the media to scramble/misreport on FOI responses)

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