Getting it right: Responding effectively to FOI requests Paul Mutch 13 February 2017

Responding to requests Firstly, we’re going to look at responses to requests. Customer care is really important when dealing with FOI. There’s no getting away from the fact that FOI is a formal, legal process, but it’s important not to forget that it’s also about engagement with your service users, the public and the media. We see a lot of cases where a little customer care could have gone a long way to helping both requesters and authorities. The legislation recognises this to a certain extent, by placing a duty on public authorities to advise and assist requesters and would-be requesters, but it doesn’t end there. With a bit of extra customer care when the request is received, an authority can have a good chance of preventing an appeal to the Commissioner. Here are a few examples, which might give you some ideas of things you could do to make life easier in the long run.

(1) Interpreting the request THE PROBLEM Authority unclear what information is being asked for EXAMPLE Mr Q and Police Scotland (296/2013): Police misinterpreted request, leading to information being withheld when what the requester wanted was already published SOLUTION Contact requester when request received if request unclear or ambiguous

(2) Information not held THE PROBLEM The requester thinks the authority is hiding information from them EXAMPLE Refusal notice simply says “information not held” SOLUTION Explain why you don’t hold the information, what searches have been carried out, what information you do hold, and where the requester might be able to get other information

(3) Excessive costs THE PROBLEM The authority doesn’t need to comply with the request because it would cost more than £600 to comply EXAMPLE Alan Laing and the Scottish Ministers (194/2013): wide ranging request; Ministers failed to discuss how to bring request within £600 limit SOLUTION Explain how costs have been estimated; talk to requester about how they can narrow the scope of their request to bring it within the £600 limit

Reasons for appeal Not recognising an information request Refusing to respond to a request not sent to the FOI staff Refusal notice doesn’t comply with FOI Failing to apply the public interest test Not applying all the tests in an exemption Environmental information requests dealt with under FOI Failure to provide advice and assistance Applying exemptions to information not held

Remember the duty to advise and assist

Apply the tests carefully

Communication is key

Record keeping Discussions with the requester Searches carried out: what, where, when, who – and what were the results? Cost calculations What was disclosed or withheld – and why?

FOI staff FOI staff need ‘clout’ Staff cover Staff training Logging, tracking and monitoring systems for requests

Carrying out reviews

Section 60 Code: reviews It is important that authorities put in place appropriate and accessible procedures for handling reviews. The review procedure should be fair and impartial and it should enable different decisions to be made.

Issues at review stage Failing to recognise a request for review Only three options open at review Failing to notify requester of right to appeal to Commissioner and Court of Session Reviews not sufficiently independent or robust Late reviews

Appeals to the Commissioner

Pain free appeals Good records keeping Comment on the application Onus is on you to satisfy SIC you complied Resolution possible Pick up the phone

Proactive Publication

Why should we publish information? Statutory duty FOI efficiency Business efficiency Trust

Further information Contact us Scottish Information Commissioner Kinburn Castle Doubledykes Road St Andrews KY16 9DS T: 01334 464610 E: enquiries@itspublicknowledge.info W: www.itspublicknowledge.info