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Public Law: FOIA redux + complaints about complaints

October 7, 2019

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

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Introduction

The following observations apply to the UK but most western countries work within a broadly similar discipline. However, unlike most developed countries, the UK does not have a written constitution which can make the pursuit of legal remedies slightly more challenging.

The pursuit of due process, as part of public law, can be daunting. Navigating the practice and procedure of Freedom of Information Act (FOIA) requests can be perplexing and appear impenetrable (but see BRIEFING NOTE below). Formal complaints procedures against government departments and public/private institutions often present a similar type of challenge.

Sometimes there is an unavoidable crossover between needing information and making a complaint. In such circumstances, it is necessary to work out whether the priority is to get the information in order to pursue the complaint or to make the complaint to establish what information might then need to be requested. It is a question of deciding which way round presents the most logical pathway to follow.

The basic, staged formula for the FOIA process is common to most procedures, whether requesting information, pursuing a complaint or making use of a statutory (ie. dictated by Act of Parliament) or regulatory framework. It can be helpful to remember this if planning a particular course of action in public law.

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Finding the pathway

When considering making a complaint against any organisation, the important thing is to establish what the process is and then to follow it. This can be easier said than done.

Most organisations have details somewhere on their website (often well-hidden) or you can get the information directly from the body itself by phone, email or ordinary mail. This may take a bit of persistence – after all, who wants to make it easy for people to complain about them? – but it should work in the end.

If you still can’t find the information you’re looking for, then it may be necessary to pursue another route such the relevant ombudsman or regulatory authority. Whilst the general practices and procedures will be broadly similar, each individual body will have its own specific pathway.

Follow the procedure

Government bodies and most public/private institutions are required to have a formal requests/complaints internal procedure. Unfortunately, these are frequently (and, some might argue, deliberately) very difficult to access and inherently opaque. They are invariably laborious and time/energy-consuming. However, unless the full internal procedure is followed closely – often involving many stages of escalation – it is almost inevitable that the request/complaint will be rejected.

Comments often appear on social media about requests/complaints to various institutions being knocked back without good reason. This rejection may then be interpreted as a perceived conspiracy against the requestor/complainant or the group they represent.

Whilst the conspiracy theory may be accurate, the more usual reasons for requests/complaints being rejected are either the complainant’s failure to follow the prescribed procedure or simple administrative incompetence by the body in question. More often than not, the complaint is not without merit but is just defeated by a failure to understand and work within the required process.

Complaints and risk of defamation action

When pursuing a legitimate complaint, even a strongly-worded one, the complainant is generally protected against defamation action from the subject of the complaint. This is known as the defence of qualified privilege.

However, it’s important to note that other people who repeat the complaint in public elsewhere (on social media, for example), will not be covered by privilege and therefore may be at risk of legal action.

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The statutory route

In cases where there is a statutory regime in force (such as FOIA requests) once the internal process has been exhausted, the next step is to appeal to the First-Tier Tribunal (see BRIEFING NOTE below).

Judicial review

In other types of cases, where a full internal appeal process has been completed and the matter remains unresolved, the complainant can apply to the High Court for a judicial review of the decision of the relevant body. If possible, it is wise to seek professional advice at this stage.

Judicial review is a complex, often lengthy and potentially expensive process. It is not possible to take this route until the full internal procedure of the relevant body has been exhausted. Missing out any of the earlier stages means that the application will be rejected. Judicial review is not automatic as of right and strict criteria must be fulfilled.

The first stage is to apply to a High Court judge for permission to launch proceedings. The judge will consider the merits of the case and either grant or refuse permission. Many applications fail at this stage as the threshold has become much higher in recent years in order to reduce the previously increasing number of unmeritorious applications. If permission is granted then the case can proceed.

 

 

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The briefing note

In 2015, I was asked by two journalists for advice on making a request for information under the FOIA process. I drafted a briefing note on the workings of the English Information Commissioner’s Office (ICO) and the regime relating to FOIA requests. I published the briefing note (below) in a post from 2015.

A number of recent events in the world of ME campaigning demonstrate that both FOIA requests and complaints procedures can present major challenges. It occurred to me that it might be helpful to republish an updated version of the briefing note to assist anyone who is considering making a request for information under FOIA.

Given the similarity of the basic steps under both statutory and non-statutory regimes, it might also be of use to anyone considering making a complaint to a public or private body or institution.

 

 

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 information 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.

By way of example: in the case of requests for data from the PACE trial of chronic fatigue syndrome (CFS), 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 motive for making the request is irrelevant, although of course, there may sometimes be speculation by the authority receiving the request.

 

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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 usually 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 appeal relating to the PACE study has reached so far. If refused, then an appeal from here onwards is on a point of law only (notice to be given usually within 28 days) to:-
  2. The Upper Tribunal, then
  3. The Court of Appeal, then
  4. The Supreme Court and finally
  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. In many cases it works well but inevitably that can depend 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 even-handed.

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

Valerie Eliot Smith

Revised October 2019

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