Request DENIED

Freedom of Information requests are meant to improve transparency but sometimes they get denied and make matters much worse

15th March 2019

One the best things to come out of the Nineties — along with Girl Power and, depressingly, half of The Overtake’s editorial team — was the trend for freedom of information. Globally, governments were making themselves more accessible and accountable than ever before by opening up information that previously stayed behind closed doors.

Freedom of Information (shortened to FOI in the UK or FOIA in the US and other countries) laws have actually existed in different forms since 1776, when Sweden passed its Freedom of the Press Act.

Since then, many other countries have followed suit. FOI acts were passed in 1996 in the US and in 2000 in the UK and are especially useful for journalists, campaigners and ordinary members of the public to obtain obscure data, provide background for events that have transpired or insight into practices in the public sphere. This information can come in almost any form, like statistics, emails or even video.

It helps to promote more honesty in government, by making it more difficult for public bodies to say they are doing one thing while doing something else

Access to information is vital for democracy to flourish, according to Katherine Gundersen, deputy director of the not-for-profit organisation Campaign for Freedom of Information.

“It strengthens individuals in their dealings with the state. It helps promote participation and informed public discussion,” she says.

“The knowledge that the public may be able to see the documents on which decisions are taken helps to deter malpractice and to encourage politicians and officials to be more rigorous in their analysis, improving the quality of decision making. It helps to promote more honesty in government, by making it more difficult for public bodies to say they are doing one thing while doing something else.”

There are some rules in place that limit what information can actually be requested; exemptions such as information regarding trade secrets, information that clearly invades the personal privacy of the individuals involved or information that is already scheduled for future publication. In some cases, the information requested may cost too much to research, the information asked for hasn’t been documented or, in some cases, the request may be deemed “vexatious” or too stupid to warrant a reply.

Outside of these restrictions,  all FOI requests must be answered in some way and the initial response must be given within 20 working days. Despite these rules, however, some legitimate requests have been rejected, rebuffed or completely ignored. Of course, some of the time, it may just come down to overworked FOI officers making a mistake or genuinely feeling that the request did not meet requirements. But evidence shows it’s getting harder for people to access information that should be publically available.

Political differences

Rejections can seem to follow trends, with incidents such as the systematic attempts of climate scientists to block requests from sceptics, which were only revealed through hacked emails.

The scientists believed that they were being targeted and harassed by the sceptics, with the influx of FOI requests being a method of slowing down their work. The University of East Anglia — where the research was being carried out — despite initially insisting the requests should be dealt with correctly, soon came to agree that this was a problem.

Staff at the university eventually began screening emails from one climate change denier site in particular, Climate Audit. The requests were not dealt with as they should have been under the legislation and instead were ignored.

Climate scientists don’t have time to answer FOI requests when they could be enjoying Britain’s fabulous beaches in the middle of February

In general, this is bad practice for any big business, public, or governmental bodies. Aside from breaking the law, it can give the impression they are refusing to answer to the “little people” or they are purposely misleading the public in an attempt to avoid answering “difficult” questions. Ideally, a proper explanation should be given as to why the request was rejected with the proper guidelines used. Even requests that have taken or will take a significant amount of time to be answered need to have some clarification, providing evidentiary support as to why that is the case, as per Section 12 of the Act, which deals with the cost of requests.

The information requested may seem innocuous enough but, to the bodies involved, requests can be a personal insult, particularly if that request comes from an individual with a conflicting (and dangerous) ideas about the organisation’s work.

In these cases especially, the organisations involved should come forward to at least give an explanation as to why that particular request had been ignored, instead of skirting around the issue or ignore the request completely, which can make requesters frustrated as well as suspicious. It is important for requesters to either try again or appeal to bodies that deal with such issues, such as the Information Commissioner’s Office, but in cases like this, a refusal to answer can just as easily be seen as confirmation the University of East Anglia is up to something sneaky.

“Unclear” requests

In the States, one request to the US space agency NASA asked about documents relating to Trump’s “media blackout” order, whereby federal agencies were made to put everything through to the administration before it could be made for public consumption, including social media posts and blog messages. The request was rejected for several reasons, namely that “the documents weren’t of sufficient public interest to expedite handling” — something many would argue with.

NASA is notorious for rejecting FOIA requests straight off the bat, mostly with the same reply that it is “unclear what specific NASA records you are requesting”. This rejection is sent out to even the most specific of requests – such as a request for specific messages sent in a specific Slack channel at a specific time on a specific date about a specific topic. The news site, Motherboard, has had multiple difficult experiences in trying to obtain data from NASA.

Journalist Jason Koebler said he had “gotten lots of FOIA back from other agencies with no problem about a lot of different topics, without jumping through the hoops NASA requested”. These hoops included asking one Motherboard requester to prove they were a journalist, using a four-part test consisting of multiple questions.

Mission Control Centre: where the best of the best using bleeding edge technology to annoy journalists

NASA spokesman Bob Jacobs told Motherboard: “NASA believes it fairly disposes of FOIA requests and follows the Code of Federal Regulations regarding such public inquiries” and encouraged journalists to appeal if they felt that their request was mishandled.”

Rude

Of all the instances of requests being rejected, the case of US journalist Emma Best really takes the cake. Best’s request count is in the thousands and, as is to be expected with that many requests, many have been rejected. What is not to be expected, however, is the reaction she had gotten to some of those requests.

Best has had responses, varying from a member of the Department of Homeland Security trying to close one of her FOIA requests on the grounds that it was “quite rude” of her to contradict them, all the way to having seven thousand FOIA requests regarding the FBI’s “Dead List” — a list previously open to the public of people who had an FBI file but who were now dead — thrown out because there were “too many”.

“Sorry, nobody down here but the FBI’s most unwanted… FOI requests.” — That’s an X-files joke kids, Bing it 📷 21st Century Fox

FBI officials claimed that responding to her FOIAs would interfere with their ability to respond to other FOIAs, presumably requests that had already been logged — like Best’s previous FOIA requests. The Bureau said that the information was not in the interest of the intelligence community as Best had insisted it was, proving her point somewhat by her citing previous articles on the subject. It added that the files she requested had “no topical thread running through”, refusing to release the data on a lack of thematic structure, apparently.

In response to this, Best filed another request to the FBI for “all internal memos, letters and emails relating to a voluminous number of FOIA requests that were submitted on February 29th, 2016 and all discussions of how to handle said requests… all email maintenance complaints, logs and other documentation of problems associated with the FBI email system for February and March 2016”. The Bureau finally responded after 10 months — well outside the legal limit of 20 days, or 30 with an explanation — with 25 pages of heavily redacted emails.

The emails revealed a number of things. Firstly that “the discussion went up to the Director’s office”, secondly that the requests were deemed “suspicious” and thirdly “the Bureau considered investigating and prosecuting” Best for submitting the requests. The case was appealed to the Department of Justice, but it ultimately upheld the FBI’s decision that the information was not in the interest of the public. Of course, public interest and security is a contentious coupling in the 21st century.

“I’m happy the government is monitoring my every move with no accountability” — no-one ever

Ultimately, nothing came from this. Best decided to go no further and so it was never revealed why the FBI was so adamant on keeping the files private, however, this is an example of both just how far organisations are willing to go in order to keep things quiet, and also the resilience that should ideally be practised in such situations.

The most ridiculous thing about this is that the people being “protected” were not around to care and the details of the journalists in question were not redacted from the correspondence that was released — unlike that of the FBI representatives. Best believed this was most likely out of spite. She stated that it was “hard to see it as anything but retaliatory” as the information was revealed no less than seven times, including names and email addresses.

It was going to be published anyway… except it wasn’t

One case, concerning journalist Claire Miller — who at the time was the deputy head of data journalism at Reach plc, the newspaper company that owns the Daily Mirror — actually ended up in court. After two and a half years of back and forth, Miller finally got the information she requested.

The information that Miller was after concerned the rates of homelessness in England, an issue many public bodies seem to not want to talk about. In particular, she was attempting to find older spreadsheets on homelessness applications at local authority level, published by the Ministry of Housing, Communities and Local Authorities, then named the Department for Communities and Local Government. Initially, she had assumed the request would be a straightforward one, but she was very much mistaken.

The initial request was made in December of 2015 and was refused on the grounds of the information taking too long and costing too much to find and thus exempt from the request under Section 12. After a back and forth of emails with Miller trying to find a way around this issue, she was then assured that the data was soon to be made public and so, again, was exempt under Section 22 (information intended for future publication).

Pictured: The Department for Communities and Local Government. Some say the ghost of Miller’s FOI request can be heard crying whenever there is a full moon

There was no way of speeding up publication on the grounds that the information held personal data (exempt under Section 40) and so would take some time to redact the numbers. Miller then asked for an internal review which was not successful. The review did agree, however, it wouldn’t take more than 24 hours to find the data (the government limit for FOI requests) but, because of Section 22, it was still refused.

Feeling that the information given was quite vague — there was no evidence of an intention to publish the data Miller asked for that predated her request — Miller decided to take things a step further, appealing to the Information Commissioner’s Office (ICO). After filling out the necessary forms and waiting for an answer, the ICO agreed with the DCLG.

It stated that the DCLG was correct in redacting the information first as per Section 22. It argued that Miller had “made two requests for different information” — which she had not.  And, Miller says, it had “ignored that the cost refusal for the first one had been overturned, and said that between the two requests the DCLG had decided to publish the information asked for in the second request anyway”.

Eh?

Struggling to follow? Simply put, Miller asked for information. She was refused on the grounds it would take to long. Only it wouldn’t because the DCLG was going to publish it anyway. Only it wasn’t because it had to redact some information. But that wouldn’t actually take that long and it was going to do it anyway the moment Miller sent her request. But it hadn’t started to redact the information or hadn’t made any plans to. Even though doing the work it said it was doing would have also fulfilled the request.

So then — as was becoming increasingly routine —  more forms were filled out. This time to the First Tier Tribunal (FTT). The FTT ruled in favour of Miller and against the ICO ruling of the DCLG. The DCLG hadn’t displayed a settled intention to publish the information at the time the request was received and didn’t need to redact any personal information. Miller’s argument, in summation, was this: the chance of anybody recognising an individual from the data would be minute and only possible if said person already had detailed information regarding the individual’s homelessness application. Also, the data in question was historical data and the “risk of identification could only become more remote with the passage of time”.

Following this, the ICO then appealed to the Upper Tier Tribunal in regards to the FTT’s decision, essentially accusing them of failing to use proper legal testing in regards to Section 40 and also failing to have all the information at hand. This is where the court case came to fruition, with Miller representing herself and a barrister representing the ICO. Ultimately, after a back and forth of arguments between Miller and the ICO, the judge ruled in favour of Miller, dismissing all the ICO’s grounds for appeal. Miller won. But in a way, we all lost.

Not covered by the Act

A particularly odd case in which The Guardian went up against the Royal family, specifically, Prince Charles, took 10 years to come to a resolution. Letters to various members of parliament, coined the “Black Spider” Memos for no reason other than the prince’s distinctive scrawl, showed him lobbying for many of his own pet causes from the innocuous to the slightly more sinister.

The Black Spider sounds like the name of the gentleman thief planning to steal the crown jewels from underneath the Queen’s nose

What made the whole situation worse was the massive attempt by the government to try and stop the letters from becoming public. A big part of this was to maintain the prince’s public image; to not lose his position of “political neutrality” according to the then attorney general, Dominic Grieve in 2012.

More than £400,000 was spent on legal costs trying to block the original 2005 Freedom of Information request by Guardian journalist Rob Evans. However, when the memos eventually came out there were questions as to whether the money spent was actually worth it. Much of the lobbying reflected Charles’ own, not particularly politically riveting, personal interests such as his discussion with the 2004 environment minister Elliot Morley on his hopes that of the “illegal fishing of the Patagonian toothfish” being stopped for the sake of the “poor old albatross”.

Other letters however show much clearer political involvement, such as the lobbying of Tony Blair, for “necessary resources” to the Armed forces, from food to replacing Lynx military helicopters, without which, Charles said, the Armed Forces were “being asked to do an extremely challenging job (particularly in Iraq)”.

The letters were significant, seen as an emerging sign that Prince Charles’s rule would be reminiscent of monarchies past, taking a much more hands-on approach to government issues, unlike his mother.

It is unlikely that we will get much more insight into Charles’s political correspondence with ministers since there has been a tightening up of the Freedom of Information Act to provide an “absolute exemption” on all requests relating to the royal family. Which is worrying. Without a system of transparency in place, it is hard not to be suspicious of just how much influence is coming from that direction, particularly is Charlie has been caught out once already.

Keeping them honest

Members of the public — whether they are journalists or not — should fight back when laws are changed to darken the shadows those in power can hide in. Evans’s and Miller’s cases are proof that in the end, with enough determination, these groups can be held accountable.

Matt Burgess, journalist, author and FOI expert, encourages people to challenge responses to FOI requests they believe haven’t been answered properly. “FOI laws can only work to their full potential when poor answers and obfuscation are pushed back on. Without challenges to responses, the law doesn’t have a chance to evolve. The Freedom of Information Act has been around for 14 years in the UK now and there’s a huge body of examples to draw from.”

“When public bodies don’t answer a request within the statutory 20 working days and are unresponsive to follow-up contact, a complaint should be made to the ICO so it knows who is slow at answering requests.”

Research shows that in some cases, response times are getting slower. A survey of London councils by the Campaign for Freedom of Information found some were failing to comply with as many as 40% of requests within the FOI Act’s time limit. On the other hand some answered almost 100% of requests on time, so it varies from public authority to public authority.

The ICO has failed to use its power to issue enforcement notices, which could require an authority to deal with all overdue requests by a set deadline

Gundersen says: “Some authorities have been able to improve their performance by using software which tracks requests, by monitoring and seeking to improve their own performance and by making previously disclosed information available on their websites via ‘FOI disclosure logs’, so that the wider public not just the requester can use it.”

She also criticises the ICO for failing to keep up pressure for improvements on authorities which persistently breach legal deadlines.

“The ICO used to publicly name and monitor under-performing bodies. In 2010 it monitored a total of 33 authorities. But in 2016 and 2017 it monitored only two authorities each year across the whole country. Not a single authority was monitored in 2018. It has also failed to use its power to issue enforcement notices, which could require an authority to deal with all overdue requests by a set deadline.”

She adds that public authorities face no real repercussions for ignoring FOI requests or even ignoring the ICO’s emails.

The ICO has both informal and powerful formal tools for addressing persistent delays by public authorities, but is currently using neither

“All that happens is that after six, nine or 12 months they are served with a notice requiring them either to provide the information or state grounds for refusing it, something they should have done months earlier. By that time it may be too late for the information to be used. The ICO has both informal and powerful formal tools for addressing persistent delays by public authorities, but is currently using neither,” she says, adding that those who are interested in FOI should consider writing to their MP to encourage them to support extending the Act to contractors, which now do a lot of government work.

There are, of course, times where nothing concrete comes of fighting back — the data doesn’t exist, isn’t held by that organisation or will take too long to access — but it is important to try. As a collective, we have a louder voice than as individuals. We have a right to know what those in charge are doing and after all, if you never ask, you’ll never get.

15th March 2019