FoI at ten: How all journalists can use the Freedom of Information Act to find great exclusives

Investigative reporters Guy Basnett and Paul McNamara (formerly of Open World News, now Channel 4 News) reveal how journalists can use the Freedom of Information Act to find great stories

Imagine somewhere in the vaults of Government buildings, the offices of an NHS hospital, or the custody suite of a police station lies information that you’d like to see. Well, you can – this is the Freedom of Information (FoI) Act. You don’t need to justify why you want it, or explain what you want it for, or even how you’re going to use it. If a public authority holds the information, and doesn’t already publish it, all you need to do is put your request down in writing, and give your name and details of where to send the response.

We promise you it’s that simple. Send a request off to a public body, and within 20 working days they must send you their reply. This is the power of FoI: you have a right to that information. The law is in your favour, firmly on the side of disclosure. Unless there’s a good reason, the public authority must give it to you.

We regularly break big stories through FoI. Stories the authorities would rather you not know. Stories with impact, and stories that affect real change.

Through FoI requests we revealed:

  • How hospitals in the UK were incinerating miscarried and aborted foetuses as clinical waste, sometimes in waste-to-energy power plants (The Sunday Times, 23 March, 2014)
     
  • We discovered trigger-happy police officers are using 50,000-volt Taser stun guns on children, including a mentally ill 12-year-old girl (Sunday Mirror, 2 June, 2013)
     
  • We’ve shown how councils waste millions in public money (The Sunday Times, 16 June, 2013)
     
  • How police officers avoid sexual abuse investigations by resigning (The Sunday Times, 24 April, 2014); hospitals secretly stored the remains of dead children for years (Daily Telegraph, 18 March, 2014)
     
  • And how vulnerable children – even babies – have routinely vanished from council care (The Sunday Times, 8 June, 2014).

These stories have been turned into documentaries, led news agendas, and been reported on front pages. They’ve been debated across all forms of the media, and at the highest levels of government. And it’s very likely all of them would have remained hidden and unknown if it wasn’t for FoI.

Despite this, some journalists don’t use FoI at all. Many fear it’s too complex, and gathering stories using legislation is beyond them. This is wrong. FoI is actually quite simple. You don’t need to be an expert to make it work for you.

And after almost a decade of using it, we think some of the greatest success in using FoI comes from three simple actions:

  1. Having great ideas (constantly think what can I ask?)
     
  2. Getting the requests in (don’t get bogged down – just send them)
     
  3. Fight (always push for information you have a right to know).

There are other points to consider as you use FoI more and more, such as ensuring your requests are razor-sharp and targeted, and staying organised, but just by following these three basic points, FoI can help you break agenda-setting public interest stories.

Countless times we’ve seen the results of a good FoI and kicked ourselves screaming: ‘Why didn’t we think of that?!’. People seem to think the ability to generate ideas is somehow innate: either you have it or you don’t. We disagree, and there are some things you can do to increase your chances of latching on to a good idea even in a fast-flowing news environment.

Think about the big issues. The topics driving the news agendas, or constantly bubbling away and exciting news editors – such as police brutality, child sexual exploitation, NHS failings, slave labour, radicalisation, obesity, and so on. What information on these exists but isn’t routinely published, and who holds it?

As more officers were armed with Tasers we started to think of the details they would hold that would give us a clearer picture of how they were used. We asked all forces for details on the number of times they’d used Tasers on children, with a breakdown of each child’s gender, age, and the reason Taser was deployed.

The revelation that the youngest to be shot was a 12-year-old girl threatening to harm herself led to a national debate about Taser use (Sunday Mirror, 2 June, 2013).

Be reactive. Many stories focus on one event, but beg questions such as what led up to it, what was happening behind the scenes, or how many times have similar events happened. When we heard of a young child admitted to hospital due to obesity, we asked how many babies and toddlers across the country had been admitted (The Sunday Times, 13 October, 2013).

And when we learned one police officer escaped prosecution for alleged sex crimes by resigning, we asked how many others had done the same (The Sunday Times, 24 April, 2014).

Read everything. Our team reads every national paper each morning, along with any other media we can get our hands on. You’ll always find the germ of an investigation or the nugget of a great future story buried somewhere. One of our strongest FoI investigations came from a back-of-the-book real-life feature in Sunday tabloid Sunday People, about a couple who discovered their baby who died minutes after birth was buried in a mass grave (Sunday People, 21 July, 2013). We finished the story thinking: ‘Is this common? And what happens across the country to aborted, miscarried and stillborn babies?’ A few calls on the subject told us in some hospitals foetal remains were being incinerated as clinical waste, but confirming it was harder.

FoI requests enabled us to ask all NHS trusts how many remains from abortions and miscarriages they disposed of, and how this was done. We revealed thousands were being incinerated, hundreds as clinical waste, and some in waste-to-energy power plants. When our Channel 4 Dispatches documentary on the investigation was broadcast, the Government announced an immediate ban on incineration of all foetal remains (The Sunday Times, 23 March, 2014).

Look for open doors. You’ll often hear journalists accuse public bodies of wanting to hide information, but sometimes the authority is desperate to get information out there. For political reasons they can’t and FoI can unlock this. It might be two warring Government departments, where one would happily stitch up the other. Or a regulator itching to show that they’ve taken on a delinquent industry, but needstheir hands ‘forced’ through FoI. Or FoI can simply bring cooperation.

When we heard organ donors were in such short supply that doctors resorted to using donations from former drug addicts, alcoholics and smokers, we FoI-ed NHS Blood and Transplant. Within days we’d discussed and refined our request with help from their Associate Medical Director, who also appeared for interview when the investigation was broadcast on Channel 4 News (Macdonald, 2014).

Get them in. Once you have the idea, the most important thing is getting the request in. We’re constantly amazed by journalists we speak to, who write thousands of words a day, yet feel flummoxed if they try to pen a FoI request. It’s often through over-thinking what is actually a pretty simple process. You can get great results from straightforward requests. A request can be as simple as:

Dear FOI Officer,

How much did your organisation spend on external freelance consultants last year (2013/14)?

Guy Basnett and Paul McNamara

Please reply to: foi@openworldnews.com

Just 20 working days later you should have your information – and hopefully a story.

But what if in our example we didn’t say ‘last year’? What if we asked for every penny spent on consultants throughout the entire history of this authority’s being? For a very old public body it is easy to imagine them saying that gathering the information is impossible as – even if they could locate such records – it would take an unfeasibly long time to collate it. That’s just common sense.

At this point it might help to understand the most common scenarios for FoI requests being refused in order to avoid situations like this.

Firstly, there is a cost limit as to what you can ask for, measured in how much time it takes to search for, find, and retrieve your information. The limit works out as basically 24 hours work for central Government, Parliament and the Armed Forces, and 18 hours work for all other public authorities.

And secondly, while FoI means public bodies are obliged to hand over information, they don’t have to if it comes under one or more of 23 exemptions in the Act. These range from clear-cut situations such as information relating to national security, to more woolly reasons, such as disclosure being ‘prejudice to the effective conduct of public affairs’. Some of these are ‘qualified’ exemptions, which means they should be weighed up to see if it is in the public interest that the information still be disclosed. While others are ‘absolute’, so basically public interest won’t help.

These are all detailed in the Act. But the point is you don’t need to master – or even read – all of it. You’re a journalist, not a lawyer or Information Officer. You should aim to understand enough of the Act so you don’t waste your time and authorities’ time requesting clearly exempt information, or far too much material. But that’s all.

Even with the best practice, your requests will frequently be refused. It’s very important that you put up a fight. This is another area that separates consistently successful requesters from those who don’t seem to get results.

FoI is partly a numbers game between over-stretched FoI officers and time-poor journalists. And sometimes it seems some public authorities refuse requests as a matter of course. It’s a successful tactic, because many journalists immediately give up. Don’t be one of them. Faced with a list of exemptions, or a lengthy public interest test that comes down decisively for the other side, most feel there’s no point arguing, or don’t know where to start.

Firstly, go back to the Act and read up on the exemptions and sections they’ve mentioned. Compare what the authority has said with what you see written in the Act. Does their reasoning fit? Do you agree? Go to the Information Commissioner’s Office (ICO) website and look at their guidance.

Has the public authority used appropriate arguments, or do you think they should have given you the information? You can even search for ICO decision notices for previous appeals on similar refusals. Do any of them come down in your favour? As a first step we’d advise you to go back to the authority and either amend your request, for example narrowing or refining it, or stick to your guns and ask for an internal review.

If after that they still refuse, follow the ICO complaints procedure.

FoI is a running battle between freeing up information, and keeping it hidden.

If you believe you have a right to that information, you have a duty to fight for it otherwise public authorities will think they have a right to keep it secret. You’ll be surprised by the results.

We’ve had FoI responses adamant that information is not easily retrievable within the costs limit. But when we’ve questioned this and asked for more information, they’ve instantly relented.

We’ve had refusals citing long lists of exemptions, putting up barrier after barrier. In one case an NHS Trust refused information because they believed answering our request would reveal personal data, or confidential information, or put health and safety at risk. We replied with a five-line email amounting to, ‘No it won’t’, to which they instantly conceded.

Sometimes we’ll put together thousands of words of argument. Other times, in the heat of day-to-day journalism, we’ll only manage a quick paragraph or two.

What’s important is that we’re asking for the refusal to be reviewed, and signalling that we’re not going to be fobbed off with a refusal, and will fight to get the information we’re entitled to.

All these steps are key in making FoI work for you as a journalist. Constantly think up ideas; get the requests in and be prepared to argue. If you do, then you’ll produce great stories and investigations.

FoI at ten; freedom fighting or lazy journalism? is edited by Tom Felle and John Mair and published by Abramis.

Available at a special offer price for Press Gazette readers of £15 via richard@arimapublishing.co.uk) or via Amazon for £19.95.

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