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Some people know me as OrangeBlossomer because that's me on Twitter. This blog is a random collection of daily musings about life and stuff I love, such as journalism, dog (sadly my dog died in 2010 so probably no more), women, love and lack of love, boobs (only seldom but it does get me extra online traffic), taichi (I practise) and spirituality (should practise more). I have a day job as a jetsetting publishing foreign rights manager but I am also an NCTJ-qualified journalist and a writer/columnist at heart. Writing is my opium.

Tuesday, 15 February 2011

FOI: why who is requesting (shouldn't but) can matter

(This post was also published in the Help Me Investigate blog.)

Freedom of Information requests should be "applicant blind" and "motive blind" but they are often not treated as such – David Higgerson, head of multimedia for Trinity Mirror Regional, points out in his blog post FOI FAQ.

This means that FOI rules are being breached if a press officer, to whom your request has been passed on by the FOI officer, asks you what you need the information for. 

It is important for journalists to be aware of this to ensure their FOI requests are not treated differently just because they are coming from a member of the Press. Read David Higgerson's other post on how NHS officers are being instructed to keep an eye on 'round-robin requests' as evidence that in the world of FOIs, not all requests are equal.

A former public sector's FOI practitioner, who blogs under the name FOI Man, has posted his insider's view on when he deems it fair to reveal the identity of the requester and when not. 

Double-edged sword
Until I read FOI Man's blog, I hadn't been fully aware of the implications of an FOI officer sharing details of journalists' requests with the organisation's press officer, whose job, after all, is to manage its relations with the Press. The press officer cannot, of course, ask the FOI officer to modify the FOI response but it is still rather a worrying thought that spin doctors should be able to freely see who is asking for what information and comment on a draft reply. 

FOI Man says he often removes the name and contact details of the requester before circulating them in-house. But authorities are entitled to know who made the request and may need to know their ID to ascertain that it is not 'vexatious'. 

In practice, in the spirit of the FOIA, transparency works both ways: just as you count on full disclosure of the information requested, there is nothing an FOI officer can ultimately do to justify withholding information on the person requesting the information.

Vexatious or not vexatious?
Higgerson explains in his post that the circumstances under which a request can be considered as such are restricted. More details and examples can be found in this guidance note issued by the Information Commissioner's Office "Vexatious or repeated requests". 

Below is a summary of the four possible 'vexatious' scenarios. 

1. The requester is obsessive: if the requesters' records show FOI requests on the same topic are being used repeatedly to reopen issues that have already been considered.

2. The request is a harassment: if the authority believes the request itself could constitute harassment 'of a reasonable person'. Requests biased by complaints/accusations, use of hostile or offensive language, or an unreasonable fixation on a particular individual could all be used as grounds to classify the request as harassment.

3. The request is seen as aiming to cause disruption: the authority must prove the requester has got malicious intent, but the argument would hold only in the unlikely event the requester has openly stated they are out to cause maximum inconvenience.

4. The request lacks real purpose or value: an auhority can claim this but only as an additional argument to support points one to three above. Thankfully, for the requester, the ICO rules that "it is not appropriate to use lack of value as an argument simply because you cannot imagine what the value might be" and that the fact that the FOI request has a serious purpose can stop it being vexatious.

ID Protection
Section 8 of the Freedom of Information Act states that for a request to be valid the request must “state the name of the applicant and an address for correspondence”.

The dilemma arises, however, when someone is requesting information about their employer. In such instance identification of the requester may not be in their best interest. 

FOI Man says there is then no other recourse than to go undercover and use a (credible) pseudonym, though it is not a method he condones.

'At your own risk', is probably the best answer. The ICO clearly states "pseudonymous requests are outside the scope of [the Information Commissioner]'s jurisdiction"

Is it a case of right to know versus the right not to be known.

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