Practical Law

PLC Public Sector reports:

… COUNCIL COVERS UP KNIFE PROBLEM IN LOCAL SCHOOLS … OUR SCHOOLS ARE COASTING WHILE OUR LOCAL AUTHORITY DOES NOTHING …

Two headlines that may follow a refusal to answer the following questions: 

How many knives have been confiscated at local comprehensives in the last year? What schools in our borough have been identified as “coasting”?

It is easy to understand why some local authorities instinctively tend to clam up and make the decision that this sort of information must be exempt from the Freedom of Information Act (FOIA).  They will then consider the request, the specific exemptions and the consequences of disclosing the information requested in detail, but with a view to choosing (or asking their legal department) which exemption they should rely on. This is particularly the case when they know, or suspect, that the request has come from a journalist fishing for some information they can use to support the “scoop” they already intend to write. However, this kind of approach can be counter-productive and encourage a “no smoke without fire” mentality from the requester. 

The FOIA shows no sign of going out of fashion. It is the tool of choice for political parties in opposition trying to cause embarrassment to their governing rivals at both national and local level; members of the public trying to find out why their concerns are not top of the agenda; and, of course, journalists fishing for information.  Few would argue that the FOIA has not had a positive impact on opening up government, but, conversely, few in government (at whatever level) would deny that, at times, it is abused.    

However, the FOIA is here to stay (unless perhaps if you are an MP with a John Lewis shopping receipt…). As frustrating as the time it takes to deal with FOIA requests can be, disclosing information on the authority’s own terms will often be the best policy – even where there are suspicions about the motive for a request.

It goes without saying that the exemptions should always be considered and if one applies, the information should be withheld.   In particular, where the information may be personal data (for example,  details of the sickness rates at a small establishment) or where a simple response acknowledging that information exists could itself constitute personal information (for example, a request for complaints about an individual); section 40 is likely to apply.  However, authorities should be wary of over using exemptions such as the one in section 36 of the FOIA (prejudice to conduct of public affairs). 

The Information Commissioner does not view section 36 (or any other exemption) as an exemption to be used as a sweep up defence – where the precise reason is not really known, but there is just a general discomfort about disclosing the information.  Specific details of the impact disclosing the information will have on public affairs will need to be evidenced.  Even if this hurdle is cleared, the exemption is qualified and the public interest test will be applied.  It is quite difficult to envisage a question about school performance where the public interest will be maintained by keeping the answer out of the public eye.  For an insight into how the Information Commissioner is likely to address any claim that section 36 applies, see this decision notice.

With the Government’s targets and wide reporting requirements (which with CAAs will not be reducing anytime soon), it is also likely that the response to most questions will be in the public domain in some way already (if this is clearly the case then obviously the requester can be sent on their way but it is often not quite so simple).  In light of this, a better path for an authority may be to disclose the information on its own terms, with its own arguments in support of its actions prepared to counter any misuse to which the information is put.  

At least then authorities cannot be accused of fuelling accusations of a conspiracy or cover up themselves.  

For guidance on the steps to take if you have received a request for information, see our checklist and our drafting note to accompany the Ministry of Justice’s standard form correspondence.