Internal Affairs

Has an NHS Trust tried wrongly to prevent publication of information under FOI? Or are they just perhaps (naively) internally exploring the options?

Brace yourselves. Hold on to your china. I have a shocking announcement to make: NOT ALL PUBLIC AUTHORITY STAFF FULLY UNDERSTAND FOI!

In fact, some of them don’t even like it – check out some of the submissions made to the Justice Committee when it was conducting its post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA).

Even worse than those who don’t understand it and say so, are those who don’t understand it but think they do. All practitioners have been faced with the person who announces loudly and wrongly which exemption should be claimed, and won’t accept they’re wrong, because “that’s what we always used to say when I worked at [former employer]”.

These observations are prompted by a twitter exchange, and subsequent Telegraph article yesterday, regarding the accidental disclosure of internal emails by NHS Newcastle-upon-Tyne, in which staff there discuss how to respond to an FOI request. The article reports how the staff considered whether they had to disclose a strategy report, and that the following comments were made

The planned preventative maintenance is all my own work for which I can express intellectual rights…

The…strategy is commercially sensitive and subject to executive approval…Can we say that our Strategy is commercially sensitive and refuse to disclose?

We could refer to [other information] which is in the public domain…It would at least make us look slightly helpful

The Trust clearly did not want this exchange disclosed, because after inadvertently doing so, they tried to use an email recall function, which as we all know, hardly ever works. I don’t blame them – this sort of exchange hardly reflects well on the FOI knowledge of and intentions of, certain staff. If it happened in my organisation I’d toddle on down to their office with a rolled-up copy of ICO guidance and bang them on the head with it (or maybe just suggest they have some training).

However, this sort of exchange goes on daily, in hundreds of public authorities, as hard-working, possibly naive staff grapple with complex FOI requests. They’ll mull things over, discuss options, make ridiculous suggestions, until, ultimately – one hopes – an FOI officer pulls it all together and arrives at a reasoned, fair and lawful decision about disclosure.

Of course that doesn’t always happen, and not all organisations have the bulwark of an honest, good FOI officer in place, but disclosure of internal discussions about potential exemptions, before any final decision on disclosure has been arrived at, does not point towards a potential criminal offence, as some were suggesting on twitter, and it doesn’t really make for a good story.

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