Sunday, January 19, 2014

How to tell if the FOI response you have received is bullshit. Part 4: the public interest test


Too many FOI replies are incomplete and invalid as they lack a public interest test.

The public interest is a fundamental concept in the law and seems to have something to do with considering the general welfare of the public (see here for more about the complications). Some FOI responses need a public interest test (‘considering the general welfare of the public’ is a convenient way of thinking about this) and some don’t.

  • Absolute exemptions don‘t need a public interest test.
  • Qualified exemptions do need a public interest test.

Simply, absolute means that the information is exempt because it because of the type of information it is – the clearest example is section 21 of the Act, which relates to information accessibly to the applicant by other mean. If the information is, for example, published, then the public authority (PA) does not have to release it again. The information falls into this class and that is the end of it. No further argument (although you might be able to argue that the information is not readily accessible, but that is another matter), no consideration of the public interest. The general welfare of the public is not a factor – it is accessible and that is that. 

Qualified exemptions need a public interest test (PIT). You cannot say that something is, for example, commercially sensitive and slam a full stop at the end. You have to give a public interest test – to consider what the general welfare of the public is, to qualify your use of the exemption. 

Table of most common exemptions:

Absolute Exemptions (no PIT)
Qualified Exemption (needs PIT)
21
Readily accessible by other means
22
Intended for future publication
23
Relating to security bodies
30
Investigations
41
Provided in confidence*
31
Law enforcement
44
Prohibitions on disclosure
35
Formulation of government policy

*this is a funny one – the PA has to consider the PIT but does not have to give it – you should not expect to see a PIT, but a good reply will mention that it was considered.

36
Prejudice to the effective conduct of public affairs
38
Health and safety
42
Legal professional privilege

If you see any of the exemptions on the right being cited, expect to see a PIT, otherwise the bullshit klaxon needs to wail long and loud. 

Let’s see what a public interest test look likes:

A classic question is ‘I would like to request a copy of the report into Project X’. The PA is going to publish this in a couple of months and the FOI officer talks to the relevant commissioning team and reaches for section 22. The answer needs to look something like this:

We can confirm that we hold the report and that we had intended to publish it in approximately 2 months. We are withholding the report under section 22 of the FOIA, which relates to information intended for future publication. 

Public interest in releasing report:

We value openness and release of the report will help the public understand whether project X was well run and hold the public authority to account

Public interest is withholding the report:

We are in the process of verifying the details of the report and having it reviewed. It is possible that the report will be altered. Releasing the report in its current form would risk putting inaccurate into the public domain and would skew the public debate about project X.

Balance of the public interest:

While it is important to release the report for the sake of accountability, that accountability is likely to not be accurate as the report is unverified, so the public interest is in withholding the report.

The benefits to the public have been set out against the harm to the public (the PIT) and the balance of the public interest has shown how the competing public interests have been measured against each other. 

It is lovely when the FOI officer puts things under headings, but sometimes the PIT is threaded into the narrative:

‘Can I please have the code for the alarm for getting into the PA’s offices?’

This is clearly a silly question – giving out the alarm code will allow criminals to access the offices of the local council, but a proper refusal is still needed. 

We have this but are not giving it to you under s31(1)(a), the prevention of crime. We do want to be open and share information about how we work but it allow criminals to gain access to our premises and it would cost the taxpayer lots of money to replace stolen equipment, so we won’t be giving this out. 

Not as formally written out, but it does say that the information is held, cites an exemption and says the PA can see the value in showing how it works but that it would cost the taxpayer lots of money to replace stolen equipment – that is the public interest test. The balancing of openness with the harm done (and anchoring this in the PUBLIC interest, not those of the PA itself). 

For the exemptions above, be on the look out for a PIT. Even when you get one, it may not tell a convincing story, and those can be serious grounds for appeal, but make sure in the first instance that you get the PIT when it is required – otherwise, the reply is nonsense.

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