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FOIA: a Briefing Note + how many PACE requests?

December 16, 2015

[NOTE for new readers: I have lived with the illness myalgic encephalomyelitis (ME) for nearly 35 years. The condition is also (misleadingly) known as “Chronic Fatigue Syndrome” and is therefore often referred to as “ME/CFS” or “CFS/ME”. For more information see “About“.] 

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Briefing Note

I was recently asked by two journalists to draft a short briefing note on the English Information Commissioner’s Office (ICO) and the Freedom of Information Act (FOIA) regime. It occurred to me that this document might be of interest to some readers of this blog so I’m copying it here (see below) for future reference. This document does not constitute any kind of specialist legal advice. 

How many PACE requests?

In August 2014, I made a request under FOIA to find out how many requests had been made to the relevant public authority (Queen Mary University of London – QMUL) regarding the PACE study of chronic fatigue syndrome. I have mentioned previously in this blog that there appear to have been in excess of 150 FOIA requests since 2010, when the trial finished. It became apparent from my correspondence with QMUL that there is not a definitive answer to this question. The figure of 150+ appears to relate to the number of individual pieces of information requested, not the actual number of requests which (in mid-2014) was 34 – an important distinction.

I have shared the details of my request with some other ME advocates already but I have now been asked to make them generally available. I have therefore created a PDF file of the brief exchange of correspondence which can be downloaded from FOIA request to QMUL re no of PACE requests.pdf-2

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Thank you for reading this. I wish you well.

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BRIEFING NOTE 

The English Information Commissioner’s Office and the Freedom of Information Act (FOIA) regime

Background

The Information Commissioner’s Office (ICO) is overseen by the Information Commissioner (IC). The IC’s powers (such as drafting decision notices) can be delegated to employees or other agents.

The ICO is a public body and independent regulator (https://en.wikipedia.org/wiki/Information_Commissioner%27s_Office). The IC is charged with overseeing both access to information under FOIA and the protection of sensitive information (data protection). This responsibility creates a joint and arguably schizophrenic function https://ico.org.uk/

Data Protection

Under the Data Protection Act of 1998 (http://www.legislation.gov.uk/ukpga/1998/29/contents) the IC has the power to impose financial penalties for certain offences (such as unlawfully obtaining personal data). Some argue that those powers are insufficient for effective enforcement of the system.

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The FOIA process

The English FOIA regime was created by statute in 2000  http://www.legislation.gov.uk/ukpga/2000/36/contents. Scotland and N Ireland have similar but separate regimes. Any citizen from any country can make an English FOIA request.

The presumption is that all information should be available to anyone, regardless of motive, unless it is covered by one or more of the exemptions prescribed in the Act, in which case it can be withheld. NB. The UK system is currently undergoing a general review and it may become more difficult to access information in future as a result https://www.gov.uk/government/organisations/independent-commission-on-freedom-of-information

Information requested under FOIA must be obtained from the relevant “public authority” as designated in the Act. [Note: in the case of the PACE trial data, the public authority is usually Queen Mary University of London (QMUL). This is because St Bartholomew’s Hospital where Professor Peter White (principal investigator on PACE) practises, comes under the umbrella of QMUL. All teaching hospitals in the UK are attached to a university.] 

The first stages of making a request are very straightforward. There is no fixed method; the request can be made in almost any format (including social media, in limited circumstances) as long as the requestor’s real name and address are clearly evident. In theory, the reason for making the request is irrelevant, although of course, there may sometimes be speculation by those dealing with such requests.

Requests must come from a single requestor. If a group wishes to make a FOIA request, it must be made by one individual on behalf of the group. This is to ensure that the identity of the requestor remains clear. It is also intended to deter the making of multiple requests for the same information as many authorities have limited resources for dealing with FOIA requests.

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Stages of making a request

[For a useful how-to guide, see here ]

1st stage – make request to authority. Response should be within 20 working days. If that is refused:

2nd stage – ask the authority to carry out an internal review of the handling of the request. Again, response in 20 working days. If still refused:

3rd stage – complain to the IC (no time limit but generally within three months) who will make a decision and publish the decision notice. The requestor’s name is not published at this stage.

After this, the process changes significantly as it shifts into the judicial system and judges are involved in decision-making. Full judgments, including the names of all parties, are published. The stages of appeal are as follows:-

Appeal from the IC’s decision is to the First-Tier Tribunal (Information Rights) – the FTT – within 28 days. Time extensions for appeal can be granted. To the best of my knowledge, the FTT is the furthest point any PACE appeal has yet reached. If refused then appeal is on a point of law only (notice to be given usually within 35 days) to:-

The Upper Tribunal

The Court of Appeal

The Supreme Court

The European courts – either the European Court of Human Rights (ECtHR) in Strasbourg or the Court of Justice of the European Union (CJEU) in Luxembourg.

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A note on time limits

Time limits are not rigorously enforced although there can be penalties for serious infringements. The process can be quite protracted; typically, a request might take 6 months from the first request to getting a decision from the ICO.

Cases which are taken as far as the European courts take many years to complete (and require very deep pockets). However, the same applies to cases from all branches of the law.

“Vexatiousness”

This is inevitably a problematic area across most branches of the law, not just FOIA. Section 14 of the Act deals with the basic issue but the term is not specifically defined. It is covered by the ICO’s guidance and is discussed in the evolving case law. The current leading case is Dransfield v Information Commissioner and another and Craven v Information Commissioner and another [2015] EWCA Civ 454;  [2015] WLR (D)  215

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Comment

The FOIA system was designed as a simple process which could be used by anyone to obtain information held by public authorities in England and Wales. It was intended for use at zero or minimal cost; however, that may change after the current review. In many cases it works well but inevitably that can depend largely on the efficiency of the public authority and the ability of the requestor to understand what to do and how to do it.

As with all systems, it is open to abuse, both by requestors with an axe to grind and by public authorities seeking to withhold information for reasons which may not be entirely transparent.

Once the process reaches the judicial stage (the FTT), it follows the same patterns, benefits and limitations as any other type of legal action.

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Valerie Eliot Smith

November 2015

 

 

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3 Comments leave one →
  1. Deborah Waroff permalink
    December 16, 2015 15:25

    body{font-family: Geneva,Arial,Helvetica,sans-serif;font-size:9pt;background-color: #ffffff;color: black;}Valerie, if you have energy and time could you possibly remind us of the absolute last date the courts can respond to QMUL’s appeal against the decision that QMUL must disclose the data referenced in your(?) FOIA? (Perhaps it’s already in my email and I’ve overlooked it.) Thank you for all your work. Regards, Deborah

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  2. December 16, 2015 19:18

    Thanks for your question, Deborah. I’m not quite clear which decision you’re referring to. If you mean the case which I discussed in my previous post then that is going through the First-Tier Tribunal process now. It could be a few months before there is a hearing and we get the result of QMUL’s appeal. (I was not the original requestor in that case).

    If you mean my request concerning the number of PACE requests, then that was completed in August 2014. I didn’t appeal it further. Anyone wanting to pursue that point would have to make a new request.

    If your question relates to another case, could you clarify which one and I’ll reply accordingly. Many thanks.

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Trackbacks

  1. QMUL’s upcoming appeal against the Information Commissioner’s decision on release of PACE trial data: 20 April 2016 | valerieeliotsmith

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