FOIA: a Briefing Note + how many PACE requests?

NOTE for new readers: I have lived with the illness myalgic encephalomyelitis (ME) for since 1981. The condition is sometimes incorrectly conflated with the condition known as chronic fatigue syndrome (CFS) and is therefore often referred to as “ME/CFS” or “CFS/ME”. For more information see About.

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1. The FOIA 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 2000 (FOIA) regime. It occurred to me that this document might be of interest to some readers of this blog so I’ve copied it in full at the end of this post.

[NB. I wrote an updated version of this FOIA Briefing Note in October 2019. It can viewed in this post here]

2. How many PACE requests – my FOIA request

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 total number of individual pieces of information requested within each single request, not the actual number of individual requests which, in mid-2014, was 34 – an important distinction.

I have already shared the details of my request with other advocates and I am now making them generally available. I have created a pdf file of the exchange of correspondence which can be downloaded at this link:

FOIA request to QMUL re no of PACE requests.pdf-2

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NB. The document below does not constitute any kind of specialist legal advice. 

BRIEFING NOTE 

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

The ICO: background information

The Information Commissioner’s Office (ICO) is overseen by the Information Commissioner (IC). Some of 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. The IC is charged with overseeing both access to information under the Freedom of Information Act and the protection of personal data under the Data Protection Act. This dual responsibility creates a joint function and – arguably – the potential for a conflict of interest, although that rarely seems to occur in practice.

Data Protection

Under the Data Protection Act 2018, 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 the Freedom of Information Act 2000. Scotland and Northern 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.

In 2015, an Independent Commission was set up with task of reviewing:

• Whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection
• Whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice
• The balance between the need to maintain public access to information, the burden of the Act on public authorities and whether change is needed to moderate that while maintaining public access to information

The final report was published in March 2016. For more information, see here.

Relevant public authority

Information requested under FOIA must be obtained from the relevant “public authority” as defined in Section 3 of 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.]

Person making the request

Anyone can make a FOIA request. Requests must come from a clearly identifiable requestor, usually an individual.

If a group wishes to make a FOIA request, it should normally 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.

The initial request

Making an initial request is straightforward. There is no specific fixed method but there are certain requirements under Section 8 of FOIA for it to be treated as a valid request:

• The request can be made in written format (including social media, apparently, although I wouldn’t advise it as a general rule)
• The real name and address of the requestor must be evident.
• The requested information must be described

In theory, the reason for making the request is irrelevant, although of course, there may sometimes be speculation by those dealing with such requests.

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Stages of making a request

[For the ICO’s how-to guide, see here ]

1. Make initial request to authority. Response should be within 20 working days. If that is refused:
2. Ask the authority to carry out an internal review of the handling of the request. Again, response in 20 working days. If still refused:
3. 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:-

1. 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:-
2. The Upper Tribunal
3. The Court of Appeal
4. The Supreme Court
5. The European Court of Human Rights (ECtHR) in Strasbourg

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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 very 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