Lessons from recent FOIA requests
It is often claimed that Tony Blair regretted ever introducing the Freedom of Information Act, (FOIA) and there are thousands of civil servants, local government officers and stakeholder engagement professionals who might be inclined to agree.
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Every once in a while, I find it useful to look at recent decisions published by the Information Commissioner (ICO).
About 150-200 cases are handled every month by those who remain dissatisfied with a public body’s response to their requests.
Sometimes it is a question of failing to meet the 20-day standard for providing the requested information. On occasions, the ICO has to determine if the FOI request is reasonable or within the rules.
More often, it determines whether resistance to providing the requested data is justified by the many exemptions that apply. For example, one is allowed to redact personal information, and there are provisions that allow you to withhold information about certain aspects of policy-making.
Back in 2005, after the introduction of the legislation, we had expected rather more requests for data on consultation exercises.
We had even called FOI a Consultee’s Charter because, in theory, it gave unhappy stakeholders the chance to dig quite deeply into the data gathered by an organisation that has just conducted a consultation.
In fact, very little of this happened. Serious well-funded campaigners decided instead to rely on the enforceable discovery process prior to a judicial review rather than wait for the results of an FOIA request.
But times have changed. Just in recent months:
- A Parish Council at Cowfold was required to supply information it had previously withheld about its consideration of plans for a nearby wind farm. The complainant had asked for a lot – copies of correspondence with the MP, and the Planning Inspectorate, discussions about the alleged inadequacies of the public consultation and much else. The Council argued against disclosure on the grounds that this was ‘manifestly unreasonable’ but the ICO ruled that the public interest overrode this objection. ( Ref IC-237389-H3C3)
- A month earlier a similar case went the other way. A campaigner against cycle lanes had his voluminous request for consultation data from Leeds City Council ruled as manifestly unjustified. (IC-234045-B7W3)
- In September, the United Lincolnshire Hospitals Trust were told by the Commissioner that it hadn’t declared enough of the information being sought about its consultation (IC-251179-K5C9)
- In July, Cambridgeshire County Council was told it had to provide details of which Councillors had engaged in various stakeholder discussions (IC-232401-Q4H5)
- Back in December 2022, in a case bursting with irony, someone demanded to see an unpublished Government response to a 2016 consultation on – (can you believe it?) proposed changes to the Local Government Transparency code. A reluctant Department of Levelling Up was told that whilst it could decline to share documents about a potential response, it had to disclose information about consultee responses and any analysis of that data.
Transparency in public engagement
This brings us back to the debate about the output of public engagement exercises – or ‘what data was produced by the dialogue process’; and the outcome, which is about decisions and other actions taken as a result. The output should almost always enter the public domain!
The dividing line is not always clear-cut, and one can see why organisations sometimes find themselves in a tangle.
Contact with key stakeholders can easily evolve from being just in ‘listening mode’ to serious dialogues, and even co-production. And some of the latter might just be covered by some of the FOIA exemptions.
These are just a handful of recent scenarios, but every day in the UK, public engagement and communications staff have to respond to FOIA requests.
What all these have in common is that effective response relies upon having first-class records and the means to retrieve the requested information.
In one of the recent cases, experienced campaigners knew precisely what consultation system was in use by the organisation – named it in the request, specifying what data was likely to be held on it.
Those involved in controversial matters, whether on planning, infrastructure, net zero, health and so many other ‘wicked issues’ are already probably in receipt of a growing number of FOIA requests. From these, there's no doubt that they are learning how resourceful and knowledgeable some of those who use FOIA requests can be.
I have no doubt that this is one of the many drivers that is fuelling the current growth in the market for stakeholder management systems.
It is hard to anticipate what data may be required by internal management, let alone interested third parties, the media, or consultees from a consultation.
One can, however, be quite sure that skilled use of the best systems will save time and trouble for those needing to be accountable and transparent in their dealings with the public.
This is the information age, and more and more of it is expected to become visible and transparent.
Had Tony Blair stopped his legislation in its tracks, no doubt others would have instigated a similar regime. We just need to find the best possible ways to manage the accountability that society now demands.
Written by Rhion Jones
Rhion Jones was the Founder Director of the Consultation Institute and is an acknowledged authority on all aspects of public and stakeholder engagement and consultation. He advises Tractivity and will be contributing expert analysis and commentaries on current issues.
Rhion now publishes thought leadership articles regularly as the ConsultationGuru.