Despite its significance, organisations often make substantial freedom of information mistakes. This is both when handling freedom of information (FOI) requests, and within their wider FOI systems. This article explores some of the most significant FOI mistakes made by organisations and sheds light on how to avoid them.
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Failure to Publish the Required Information
One of the most prominent mistakes organisations make with FOI is the failure to proactively disclose information that is mandated by law. FOI regulations typically require certain categories of information to be made readily available to the public. This includes financial information, policies, organisational structure, and disclosures made under freedom of information requests. Organisations that neglect this aspect not only violate the FOI Act but also miss a valuable opportunity to demonstrate transparency.
The main way public authorities can meet their obligations is to maintain a statutory publication scheme that contains the information classes listed above.
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you can find out more about developing a statutory publication scheme here.
The Importance of Transparency
Transparency is not just a buzzword; it’s a cornerstone of effective governance. Proactively sharing information demonstrates an organisation’s commitment to openness, which can foster trust among stakeholders. By failing to disclose required information, organisations risk eroding public trust and potentially facing legal consequences. The most mature public authorities recognise that freedom of information can be a key part of stakeholder engagement, as we discuss here.
Mishandling FOI Requests
Alongside proactively publishing information, public authorities must of course also respond to freedom of information requests. Mishandling requests is another areas where organisations make mistakes.
Delayed Responses
Timeliness is a crucial aspect of FOI compliance. Most public authorities must respond to requests within 20 working days, and without undue delay. That means they should respond as quickly as possible and never breach the 20 working day limit. Organisations often make the mistake of delaying their responses to FOI requests. This delay can frustrate requestors and even lead to complaints to the Information Commissioner.
Delays can occur for several reasons:
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the organisation is managing a large number of requests
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people are slow in finding the requested information
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there is a delay to approving the release of the information
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there is a debate about whether an exemption to disclosure applies
Public authorities must have systems in place to address all of these issues well within the 20 working day limit.
Inadequate Information Retrieval
In some cases, organisations struggle to locate and retrieve the requested information accurately. This can result from poor record-keeping practices or insufficient training in managing FOI requests. Mishandling FOI requests not only hinders transparency but can also lead to complaints and reputational damage.
It is important that public authorities manage their records properly, ensuring they know what information the retain and destroy anything that does not need to be kept.
Examples of the kind of issues that can arise from poor records management, and impact on effective FOI responses include:
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retaining but not disclosing drafts of documents
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failing to look for email attachments or in other places where documents may be resting
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not destroying information that has passed beyond its retention period, but assuming that you have
Conducting a more thorough search for information because of an investigation by the Information Commissioner may lead to it being found, but also a decision notice from the regulator with the attendant bad publicity.
Conversely organisations can often release the wrong type of data, which can cause issues too. For example personal data should generally not be released under a FOI request unless doing so is GDPR compliant. Yes FOI responses can raise data protection issues, as this recent case shows.
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Ignoring the Public Interest Test
The public interest test applies to some exemptions to disclosure under the Freedom of Information Act. It applies when a decision must be made made about whether the public interest is best served by disclosing the information requested, or withholding it. Some organisations make the mistake of neglecting this test and automatically denying requests. This approach can be detrimental to both transparency and accountability.
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you can learn more about the public interest test here.
Neglecting the Balance
FOI laws aim to strike a balance between the public’s right to know and the protection of legitimate interests, such as privacy and national security. Ignoring this balance can result in unnecessary secrecy or unwarranted disclosure. Public authorities should conduct a thoughtful analysis of the public interest test for each FOI request to make informed decisions.
The FOI Act assumes it is always in the public interest to disclose information so striking the right balance will require work. And remember, if you do decide to withhold information on the basis of the public interest test you must be able to explain this and how you reached your decision to the requestor.
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Creating a Culture of Compliance
To avoid FOI mistakes, organisations should put in place appropriate FOI training and awareness programs. Creating a culture of compliance will ensure that everyone understands their roles and responsibilities in managing FOI requests. This proactive approach can mitigate risks and enhance transparency. Public authorities can avoid a lot of problems and even turn freedom of information to their advantage if they make some small efforts to get things right.
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Conclusion: Lessons Learned from FOI Mistakes
In conclusion, the biggest mistakes organisations make with Freedom of Information often revolve around a lack of proactive disclosure, mishandling FOI requests, ignoring the public interest test, and failing to invest in FOI training and awareness. These mistakes not only hinder transparency but can also result in legal consequences, in the form of decision notices or enforcement notices from the Information Commissioner, and reputational damage. To navigate the FOI landscape effectively, and minimise FOI mistakes, public authorities must prioritise compliance and transparency, fostering a culture of openness and accountability.