The current post legislative review of the Freedom of Information Act which was shaped by the Government’s initial response to the review of the legislation sought written evidence on three areas.
- Does the Freedom of Information Act work effectively?
- What are the strengths and weaknesses of the Freedom of Information Act?
- Is the Freedom of Information Act operating in the way that it was intended to?
What has gained the most attention, though, is the focus on vexatious and serial requesters. The main solutions, to these “problems” have been to propose a fee either a set fee to deter serial requesters and revising the definition of “vexatious” to make it easier to refuse requests. In a sense, the irritation factor, created by requests and requestors, has gained the most attention.
What has been missing though is the context within which FOIA operates. Most, if not all commentators, have missed freedom of information requests differ in degree, rather than kind, from complaints. They form a part of a dispute resolution process with government. What is needed is an understanding of the relationship between complaints process and the freedom of information process. In particular, it would have been helpful to see evidence of the effect on the complaints process such as the one described by the National Audit Office concerning complaints in health and social care. The 2008 review, Feeding Back? Learning from complaints handling in health and social care, makes sober reading regarding complaints handling. In particular, complainants often found it difficult to find the information. (The review was in 2008 so the situation may have improved since this report was published.
8 Once people have decided to make a complaint, navigating the complaints systems is not straightforward, particularly for health service users. Over two thirds of those making a complaint were not offered any help in navigating the complaints process and a fifth said their experience was difficult. An April 2007 report by the Picker Institute on accessing information about health and social care found a lack of effective signposting and, that whilst there was no shortage of information, service users were often left to dig it out themselves and might not know what they needed to know. The Healthcare Commission has identified at least seven possible routes for complaints about health services. (p.7)
What it also highlights though is that despite having a statutory complaints framework, organisations continue to display less than robust approach to handling complaints to the satisfaction of complainants. (p.14).
Although FOIA and complaints procedures are related, they are driven, usually, by a different ethos. The difference in their approaches influences the way an organisation responds to them. One finds that overall, an organisation’s culture, it approach to information and complaints will be closely related. The hypothesis in search of evidence is that an organisation that is good at handling complaints will also be good at handling freedom of information requests.
To draw out the relationship, it is helpful to put them into a continuum of perceived consequences. On one end, the most cooperative, we can see press inquiries. The chance to tell one’s story or respond to a negative story creates the possibility of a positive outcome. In the middle, between cooperation and resistance, we can see FOIA requests where the outcome is one where the organisation can add context to the response to tell its story yet has to be mindful that the intent behind any given request is uncertain. At the least cooperative end is the response to complaints. The outcomes are rarely positive and there is little incentive to cooperate actively if the outcome is negative.
The following is shaped by Denis Tourish’s research on critical upwards communication (CUC).
At one end of the spectrum we have press enquiries. While these can be positive or negative, they represent an opportunity to tell one’s story, if it is in response to a negative enquiry, or to promote the person, service, and organisation, if it is positive. Moreover, they can be viewed, within the CUC framework as allowing for the opportunity to demonstrate the ingratiation effect. “Who does not want to be seen positively in the press and to the public?” Moreover, it is a chance to broadcast that news and enhance the reputation of the organisation. This is the plus, plus option and it is voluntary as no one is compelled by statute to respond to press enquiries. J
Further along the spectrum, we come to freedom of information requests. In this there is still the perception that it can be positive or negative depending on the question asked. However, there is often a negative undertone as FOI requests can often be seen as part of a dispute resolution mechanism (See recent research of the Scottish Information Commissioner’s office).
What is remarkable from this research is that:
“49% of respondents would be discouraged from requesting information under FOI because of a fear that it might harm working or funding relationships.”
The applicants, especially voluntary sector firms, were worried they would be seen as creating a problem for the organisation. They feared it would undermine their relationship. In effect, they were deterred from asking for information because they believed the organisation receiving the request would act negatively to them.
Interestingly, in comparison, we see the emphasis in the post-legislative scrutiny on deterring requests from “vexatious” applicants and “serial requestors”. If applicants are already self-deterred, as they are in putting in complaints to the NHS (See the NAO research p. 7)
7 Where people are dissatisfied, there is a low propensity for them to go on to make a formal complaint. Our survey of people who had used NHS and social care services in the past three years found that around 14 per cent were in some way dissatisfied with their experience. Of these, only five per cent of people who were dissatisfied about the NHS went on to make a formal complaint compared to one third who made a formal complaint about adult social care services. The main reason people did not complain formally was that they did not feel anything would be done as a result. [Emphasis added]
On the whole, though, there appears to be a view that responding to FOIA requests is a positive thing because complying brings a positive result but non-compliance (failure to meet the deadline) leads to negative consequences. Thus, there is a strong upside in terms of compliance and the opportunity to tell their story to an extent. For example, additional information can be provided to mitigate or enhance the response. In some cases, a press release could be prepared further tell the story and mitigate any negative consequences. At the same time, the result of the request is published in the public domain and broadcast, in a sense, like the press enquiry. In sum, this is a plus and a negative situation.
Finally, the other end of the spectrum is complaints. These have the perception of negativity, that there is something wrong. In extreme situation this can be seen as an allegation of blame. As a result, there can be a tendency to define these away, complaints become service requests, or comments, or even suggestions. However, that view of complaints will depend more on the organisational culture than it will on the intrinsic nature of the complaint. Here is how a complaint is defined in the NAO review. “A complaint can be defined as ‘an expression of dissatisfaction, disquiet or discontent about the actions, decisions or apparent failings of service provision which requires a response.’”
What complaints and FOIA requests offer is the opportunity for an organisation to learn. From complaints, an organisation can use them to improve because it gives them raw intelligence about areas where improvement is needed. See for example this research on using complaints to improve. Yet, one wonders if the organisations resisting the FOIA are looking at ways to find improvements from the FOIA requests that they receive. In particular, if the requests are about issues where the community has concerns, the requests can offer intelligence about community or organisational issues that may have been lost from the automatic vigilance effect.
How an organisation responds to complaints will also determine how sensitive it is to CUC. Tourish argues that all of us are sensitive to the automatic vigilance effect in which we are immediately suspicious of any feedback that suggests our behaviour, decisions, or beliefs are in error. At the same time, complaints (seen as a failing of some sort within the organisation) are often seen as a blame mechanism in which the person, the service, or the organisation will be unwilling to offer up any information that will further contribute to the perceived blame they might receive. As Tourish argues, the process is built into human nature in that we seek out good news that reinforces our status and therefore does not require us to change.
In many ways, complaints represent the negative upwards communication that can prove problematic. Tourish, quoting two leading researchers on it sets it out clearly.
“Not only do managers often prefer to hear good news but, in fact, subordinates often get promoted up the career ladder because they tell only good news. Thus, as mangers move up in an organisation, it becomes more difficult for them to get honest feedback on their efforts as their subordinates are busily portraying every effort as a success.”
By contrast, complaints rarely offer the positive news that appears to be rewarded. Instead, they can be considered doubly negative. To resolve a complaint will likely require an admission of shortcoming or a failure to deliver. Even if the organisation is vindicated, the way the complaint is handled can suggest, depending on the organisational ethos, that it is something best avoided. In effect, there is no upside to complying and there is not the same opportunity for a positive message. Even compliance is negative because an officer or an organisation is likely to see this as contributing to further criticism.
What is to be done?
The challenge is to make FOIA requests and complaints into something positive. One way to do this is to see their value as a learning opportunity. Such an approach will depend heavily on an organisation’s openness to learning and to hearing Critical Upwards Communication within an organisation. Yet, this will not be helped if organisations charge for freedom of information requests.
What will not help is to charge for FOIA request to deter them. FOIA requests can be reduced by publishing more information and making the process for finding information within the organisation better and easier. What is overlooked is that the challenge of FOIA is as much about an organisation being transparent to itself, its approach to records and information management, as it is to being transparent and open to the public.
What will not help is to charge for FOIA requests.
Given the resistance to the “burden” created by FOIA requests one wonders why organisations do not charge for a similar “burden” created by complaints. As the NAO report points out the health and social care organisations do not know how much complaints cost.
13 Neither health nor social care organisations know the cost of complaints handling. Less than one third of trusts and local authorities were able to provide information on costs. Neither the Department nor local organisations are well placed, therefore, to assess the cost implications of the new arrangements, for example NHS trusts’ need for independent clinical input following the removal of the Healthcare Commission’s independent review role.
In many ways, complaints are “cost” that can be avoided, but never deterred. Moreover, the way to reduce complaints is not to make it harder to complain, but to improve the way the organisation deals with its clients. In the same way, the way to deter FOIA requests is not to charge for them, but to make more information available.
- Freedom of Information Act is the grain of sand in an oyster of records that creates pearls of transparency (lawrenceserewicz.wordpress.com)
- If a FOIA request costs £293, how much does it cost to answer a letter? (lawrenceserewicz.wordpress.com)
- Freedom of Information Act has not improved government, says MoJ (guardian.co.uk)
- Does the UK have an ecology of transparency? (lawrenceserewicz.wordpress.com)
- Organisational Silence can kill you! Why FOIA is priceless (lawrenceserewicz.wordpress.com)