Act of July 4, 1966, Public Law 89-487, 80 STAT 250, which amended section 3 of the Administrative Procedure Act, chapter 324, of the Act of June 11, 1916, to clarify and protect the right of the public to information., 07/04/1966 (Page 2 of 3) (Photo credit: The U.S. National Archives)
What a casual observer of the debate over FOIA’s future will miss is that it works in practice and theory. At a basic level, this is an obvious point. The legislation is supposed to work as designed by Parliament. After all, we elect Parliament to do, enact laws that serve the common good. However, my point is that it works in a more direct sense. It is this direct sense that is under threat from the post-legislative scrutiny.
One of the frequent complaints in the written and oral evidence to the Justice select committee is that the FOIA wastes time with frivolous requests. Another complaint is that businesses put in requests touting or fishing for work. What these complaints do not mention is that this is often the only way to get an answer from an authority.
I was told that someone once asked a lift supplier: “Why do you put in FOI?”
“Well, I put in 30 requests to Councils asking for the same information. I wanted to find out what their requirements were to see if I could find some business. In some cases, they only publish the big contracts so I cannot get to the small ones and they do not always have good websites that tell me where I can sign up to be on their supplier list. So I put in the request.”
“But, why did you put in an FOI request?”
“Well, I get an answer that way. I put in 30 letters to the procurement officers and to the procurement teams and I had 2 responses after 30 days. Then, I put in the same letter, said it was an “FOI request” and sent it to the FOIA officers. In 2 days, I had three telephone calls asking me about my request, refining my request and clarifying the points. Within 15 days, I had 18 responses. The only reason I went to the FOIA route was because I knew that I would get an answer.”
That is the dirty little secret. In the past, before FOIA, an authority could ignore your letter or your request for information. There was very little that you could ask for and even less that, they had to provide.
The reason people often put in an FOI request is that the organisation ignored their first letter. The next step is to put in as an FOIA. Most perceptive organisations will then turn it into a “business as usual” request and handled it directly. (This is acceptable under the ICO guidance). Thus, it is not a burden to the FOI team; it fits within the general correspondence and business that an organisation does.
If an organisation wants to cut its FOI “burden” it should look at how it is handling its daily correspondence, its “business as usual”. Is the organisation providing good customer service? Is its customer service within services as robust as its FOIA team? In addition, an organisation should look at how well it publishes basic information about its services, such as contact points for specific requests such as the procurement team. Finally, an organisation could make sure its publication schemes were known by all officers so that they could tell people where the information was located and they would know the information that the organisation publishes. Finally, if an organisation wants to cut its FOI burden it can improve its internal communications so that the requests do not “cost” so much.
In many cases, the FOIA stymies the natural dialogue between authorities and the people it serves. Yet, the authority needs to look at how it is “talking” to those people and whether it is forcing them to use FOIA because that is the only way they can get an “answer.”
Without a robust freedom of information act, the public cannot ask those questions and most importantly, they cannot get answers.
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