Thursday 24 January 2013

Tortured English

A common criticism of FoI is the tone of the responses sent to applicants. The legislation requires answers to contain precise and specific words and phrases which, at best, can sound rather dry. At worst, they give correspondence an unintended air of officiousness which can create or increase perceived barriers between an applicant and the public body from whom they are requesting information. This is counterintuitive when we remember that FoI is supposed to be one of the channels that improves the relationship between the public and public authorities by making access to information not only more straightforward, but a right protected by statute.

For instance, if someone in Scotland requests information about another person which can't be provided because its release would contravene the principles of the Data Protection Act 1998 (DPA) (ie the release of one person's personal information to another would not be appropriate), the response is likely to mention the following sections of the Freedom of Information (Scotland) Act 2002 (FoI(S)A):

 • S.16 - so that the applicant knows that their request for information is being refused (even though the public body does have the information that has been requested).
• S.38(1)(b) - the specific exemption from disclosure being claimed by the public authority.
• S.38(2)(a)(i) - the justification for claiming the exemption in S.38(1)(b), which informs the applicant that, in the view of the public authority, the release of the information requested would breach the principles of the DPA.

The public authority also has to provide an argument supporting their position. In this example, that argument doesn't include a consideration of 'substantial prejudice' (also known as the application of a 'harm test'), but that is something that is required by some other exemptions. The argument in this example revolves around a potential breach of the principles of the DPA, and thus might include reference to parts of that Act (over and above the references already made to sections of FoI(S)A) such as:

• The definitions of data, personal data and sensitive personal data (if appropriate) in S.1 and S.2.
• One or more of the 8 data protection principles listed in Schedule 1, Part 1.

If the argument being made concerns a breach of the first data protection principle, then Schedule 1, Part 2 (S.1-S.5), Schedule 2 and (potentially) Schedule 3 of the DPA may all be relevant.

And so on (and the above is by no means comprehensive). The more complex the request, the more difficult the language becomes and the alphabet soup gets thicker and thicker.

Tellingly, even at this point, we still haven't finished. In this example, the organisation does not have to undertake a public interest test by virtue of S.2(2)(e)(ii) of FoI(S)A, but that is something that is necessary when claiming many other exemptions. The response also has to include instructions on the process by which the person making the request can compel the public body to review their decision to withhold information.

It isn't hard to see, then, how a formal response to a FoI request can seem stand-offish. Euan Semple in his book Organisations Don't Tweet, People Do rails against the use of cold and dispassionate language in organisations, suggesting that all it does is create distance and frustration, both on the part of people trying to communicate with organisations and for people in an organisation trying to communicate with those outside. It's a fair point and many FoI officers try to make their correspondence sound human whilst meeting all the requirements placed upon them by the law. But, and it's a big but, as soon as a correspondence has to be 'defensible' in some way, it is inevitable that it becomes impersonal to a degree because defensibility implies an over-arching regulatory framework with specific requirements for compliance. The result can be a stilted tone (pp

Is that a bad thing? On one level, no. As long as the applicant's request for information is properly considered and they either receive the information they have requested or a proper explanation of why it can't be disclosed (which they can choose to either accept or challenge), the system is working and people can exercise a right which didn't exist before 2005. We shouldn't forget that FoI is less than 10 years old (in terms of the date that the legislation came into force) and cultural change is an incremental process. Moreover, the provision of detail to applicants means that they can make an independent assessment of the response they receive and decide whether they wish to request that a decision be reviewed. The detail is important as it underpins any necessary defence of the right to access information.

Although it is important, the detail doesn't make responses easy to read. That's why I was intrigued and heartened by a petition response published by the White House recently. It uses well-judged humour to respond to a petition suggesting that the United States should build a Death-Star, but manages to make some interesting points about the current priorities of the US space programme ( The tone of the response makes it sound like it was written by a human and the fact that the author was prepared to engage with the petitioner in the right spirit resulted in the response (and therefore the substantive points about the space programme as well as the humorous sections) receiving far more coverage than a simple rebuttal could ever have achieved. It's a great example of a human touch going a long way and something from which anyone working in information compliance can learn.

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