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3 Key Webinar Takeaways: 'Is FOI an Endangered Species?'

Last week we brought together four of the most influential professionals from the Information Rights sector to discuss the state of Freedom of Information and what the future holds for it. Joining our panel were:

  • Estelle Dehon - Barrister, Cornerstone Barristers
  • Maurice Frankel - Director, Campaign for FOI
  • Bill Goodwin - Investigations Editor, Computer Weekly
  • Jon Baines - Senior Data Protection Advisor, Mishcon De Reya and Chair of NADPO

Areas covered included territorial jurisdiction, the drop in FOI response rates, legislative change, and the clearing house. The amount of knowledge imparted by our esteemed panel was vast and far too much to record in a blog, so we highly recommend you watch the recording of the webinar. However, if you don’t have the luxury of time on your side we have set out 3 key takeaways from the webinar:

Many FOI cases don't appear to be 'requester blind'

One of the recent key topics of discussion in the Information Rights world has been whether FOI requesters outside the UK are entitled to submit their requests. Given one of the fundamentals of the FOIA is that it is “requester blind” (the question determines validity as opposed to who the requester is), many questions have been raised about the extent to which this element of the Act has been followed. Estelle Dehon represented one of the five lead cases in the Territorial Jurisdiction tribunal. Despite a decision of ‘no territorial limitation to FOI requests’ and the surfacing of the ‘requester blind’ principle, there are still challenges that remain.

Bill Goodwin, Investigative Journalist at Computer Weekly, detailed many similar cases including that of one journalist who had requested information on the correspondence between a government department and a British Overseas Territories discussing the Financial Crime Bill. The journalist in question did not receive a response and then subsequently moved to Hong Kong and had his request stayed. Bill also noted that details also emerged which indicated that internal discussions about who the requesters are have been taking place, which appears to be a direct contravention of the “requester blind” element of the FOIA. We can all make assumptions about the reasoning behind these decisions, but what is concerning is that the “requester blind” principle looks like it might be being eroded in certain instances.

The panel had mixed feelings about whether legislative change was needed for FOI

During the pandemic, we have seen allegations of cronyism, particularly relating to the procurement of PPE. There are also concerns that public bodies are being created that are not subject to the FOIA, and that public services are being delivered by private companies who are also not subject to FOIA.

Whilst some of the panel agreed that fundamental changes were required to the FOIA, Jon Baines ultimately believed that, apart from wanting FOIA to extend to companies delivering public services, the Act ultimately has the teeth and doesn’t need a wholesale change. The predominant issue, Jon argued, is with the enforcement by the ICO, and the fact that government departments have been able to get away scot-free with stonewalling many FOI requests.

Advice for FOI Practitioners

Despite some of the difficulties that the Act is going through, Maurice Frankel had keen words of advice for FOI practitioners:

“The most useful thing you can do to keep your edge sharp is to make a Freedom of Information Request yourself from time to time. It is very easy to become distanced from the emotional impact of how your request is dealt with. From a practitioner viewpoint it can be easy to see why a request is refused, but actually, requesters get a big shock when they are refused and it is a short journey from this emotional reaction to becoming aggrieved at the way a public body has behaved towards them. Putting in your own requests will help you get a more balanced view.”

View the webinar

Whilst the panel believed that FOI is not endangered, they unanimously agreed that FOI has been somewhat ignored and its standing downgraded, particularly since the advent of GDPR and the emphasis on Data Protection. Ultimately the feeling is that the public’s ownership of information needs reasserting.

This blog just scratches the surface of everything discussed. To view the full webinar, click here.

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