Tweets and Tw*ts

A few days ago I tweeted @ICONews, the twitter account of the Information Commissioner (IC)

@ICONews any chance you can disclose (waive privilege?) legal advice/analysis of Letwin case? Important re: manual data/Cat E data #DPA

The context of this was that there had been some discussions in data protection circles, following the revelations about Oliver Letwin and his dumping of correspondence in the bins of St Jame’ss Park, about whether in strict terms there would have been a breach of the Data Protection Act 1998 (DPA) (on this see similar questions raised by Stewart Room about Vince Cable’s recent incident).

The undertaking signed by Letwin didn’t make clear exactly how the IC had arrived at a decision that there had been a breach of the DPA, and I was keen to know more. So was fellow tweeter @tim2040 who asked me

@bainesy1969 Are you going to #FOI them or am I? Or did your tweet to them count?

When I sent my first tweet I hadn’t thought of it as a request made under Freedom of Information Act 2000 (FOIA). However, knowing that a public authority must treat a request for information even if the requester does not “mention the Freedom of Information Act…although it may help to do so” I realised that I had rather inadvertently made a formal request which the IC’s office had to respond to, in accordance with Part 1 of FOIA. I also know that it’s easy sometimes for a public authority to miss that a valid FOIA request has been made. So, in a spirit of helpfulness, I clarified:

@ICONews Just to confirm, this earlier tweet to you was request for information #FOI http://t.co/gUeqdwGg

I’ve now received a reply from @ICONews, which says

@bainesy1969 In line with our guidance please could you provide a postal or email address for further correspondence.

Now, I really don’t want to come across as a twit (what else did you think the asterisked word was in this post title?) but I know what their guidance says (it’s my job to know it)

The request must state the name of the applicant…A Twitter name may not be the requester’s real name, but the real name may be shown in their linked profile

as mine is

The request must also state an address ‘for correspondence’. Does this include Twitter names? The length of a tweet makes it difficult for the authority to respond fully, but there are ways of dealing with this. The authority could ask the requester for an email address in order to provide a full response. Alternatively, it could publish the requested information, or a refusal notice, on its website and tweet a link to that.

So I’ve gone back to them saying

@ICONews My name’s in my profile. In line with yr guidance cd you not publish info or refusal notice on yr site and tweet link to it?

A bit twattish twittish, I accept, and I’ll be extending an olive branch to the IC’s office by contacting them privately to give them my email address. However, it does raise interesting questions about the extent to which one has to put a request for information in “formal” terms for it to be recognised. I don’t know if the IC’s office would have recognised my original tweet as a request for information – maybe they would. But, as I say, I wasn’t thinking of FOIA when I made it – I was rather hoping that someone at the office would see it and think “Hey – it would be a good idea for us to publish a note explaining how we arrived at our findings in the Letwin case”.

I know of an incident where the press office at a Council received an enquiry from a local journalist. He and the press office were well-acquainted and on generally good terms. He asked for information about a council employee and an alleged criminal offence, and he was given an “unable to comment” response. He queried this and was told (correctly) that it was for data protection reasons. He, knowing something of the regulatory process, then complained to the IC. The problem was that the press office had followed their normal press enquiry prcoedures and consequently not issued a formal refusal notice under section 17 of FOIA. The IC, if he had been asked to issue a decision notice, could not have avoided a determination that there had been a breach of FOIA. However, I would suggest neither the local media nor the Council’s press office could effectively function if every enquiry by a time-pressed local hack was dealt with as a formal FOIA request (with a 20 working day deadline).

I’m not sure there is an easy answer to this, and perhaps there will always be a grey area  separating “general correspondence” from “FOI request”. However, public authorities who have a twitter account must be aware of the possibility (probability?) that they will receive requests for information, and that sometimes these won’t be clearly labelled as FOI requests. I would hope that, in the event that these end up as complaints to his office, the IC would show some understanding of the difficulties of applying the formal mechanisms of FOIA to circumstances which might warrant a less formal approach (as in fact he did in the press office case in the preceding paragraph) .

8 Comments

Filed under Data Protection, Freedom of Information

8 responses to “Tweets and Tw*ts

  1. Would this be as complex a problem if the ICO hadn’t tried to garner some tw@ttish new media headlines about tweeted FOI requests, rather than letting things take their natural course? It’s the Wilmslow Way: do as I say, not as I do.

  2. I too have just made an FOI request by Twitter and so far it seems to have been ignored.

  3. Pingback: » FOI requests via Twitter – a Supreme problem FOI Man

  4. If the Press Officer had simply said “Unable to comment. This is personal information that is exempt under s40(xx) of the Freedom of Information Act.” wouldn’t that have been enough to satisfy the letter of the law without being particularly bureaucratic.

    • I think the strict answer is “no”. If only for the reason that the response wouldn’t have provided details of the review procedure or the right to apply to the ICO for a section 50 notice (therefore breach of s17(7)). There would probably also be a breach of s17(1) because the response would not have explained why the claimed exemption applied.

      • You only need to explain that if not obvious though. I wonder if a standard footer linking to information about review procedure etc would be enough; I guess not though.

      • Standard info might suffice, but most public authorities’ email footers are already overloaded with disclaimers and self-promotion! It wouldn’t get over the fact that to satisfy s17(1)(c) the response needs to explain why the exemption applies. The problem is that a “business as usual” approach to responding to e.g. press enquiries will never really be seen as fully FOIA compliant in the event of a complaint to the ICO. I might expand on this in a further blog post, but thanks for the observations.

  5. I was specifically thinking of the “(if that would not otherwise be apparent)” rider in s17(1)(c) when I mentioned it being obvious. I tend to agree overall that it’s hard to satisfy the procedural requirements in a lightweight way, though.

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