Info chief orders council press office to release 'if asked' lines to Hackney Citizen

A London borough's reasons for rejecting a Freedom of Information request for draft statements prepared in case media organisations raised certain issues were not reasonable, the Information Commissioner has found.

A claim by the London Borough of Hackney that a request from the Hackney Citizen newspaper was "vexatious" was also dismissed – with the decision notice from the Information Commissioner's Office (ICO) suggesting that the council had "failed to engage properly" with the request and simply cut and pasted part of its response to a different query.

A reporter from the Hackney Citizen newspaper had asked the council for all the "if asked" media statements it had prepared between 1 September and 31 December 2013 in the event that it was approached by the media for comment on particular issues.

The council refused to disclose the information, claiming exemption under sections 36 (2) (b) (i) and (ii) and 36 (2) (c) of the Freedom of Information Act, on the grounds that disclosure would prejudice the effective conduct of public affairs, and, later, claiming that the request was vexatious and therefore exempt under section 14 (1) of the Act.

The Information Commissioner rejected both grounds of refusal and ordered the authority to disclose the requested information in a decision notice which was heavily critical of the authority.

The decision notice from the ICO highlighted a series of flaws in the council's handling of the request.

It said the initial refusal notice was dated 17 February 2014, but the decision was only confirmed by the person qualified to make it, the council's monitoring officer, almost a year later, on 8 January this year.

"While the Commissioner accepts that the Council's Monitoring Officer is a qualified person for the purposes of section 36, clearly the time the opinion was given post-dates the time at which the decision to withhold the requested information was made," the ICO's decision notice said.

In addition, the belief that the section 36 (2) exemptions applied was not reasonable.

The council had in effect argued that releasing the information would have a "chilling effect" on the ability of its officials to be candid and frank in debate or advice on policy issues, which would lead to poorer quality advice and less well formulated policy and decisions.

The Information Commissioner rejected the implication from the monitoring officer that the press statements themselves were not a considered response, the ICO notice said, adding: "He considers that the press statements represent the Council's considered response, at the time they were prepared. They will have been drawn up carefully, in consultation with Council staff and representatives who are able to inform on the issues in question."

While the passage of time might have invalidated some of the contents and/or facts as presented in the statements, this did not mean that they were not carefully considered responses.

The notice went on: "The Commissioner simply does not see how the disclosure of the statements themselves would lead staff to feel inhibited when acting in an advisory capacity. This is especially so given that relatively cursory searches of the internet have identified that much of the information contained in the statements is already in the public arena."

The commissioner also rejected the council's contention, under section 36 (2) (c), that disclosing the information would have a detrimental impact on the council's ability to manage its workload because it would have to divert resources to deal with the further FoI requests which releasing the information would generate.

"The Council is not entitled to include speculation about the requests a particular requestor might make in the future, in a decision as to whether or not an existing request should be complied with," the decision notice said.

On the "vexatious request" claim, it said: "The Commissioner considers that the Council's position can be summarised as being that because the request is widely drawn, it has no obvious value; complying with it would involve unjustified and disproportionate effort, both in respect of the work involved in dealing with it and that involved in dealing with any future requests it might generate."

Requestors were under no obligation to justify requests – but the commissioner expected that a public authority would either take steps to establish that purpose or have evidence to support its evaluation of it.

"In this case, the Council appears to have merely assumed from the nature of the information requested that the request has no serious purpose," the decision notice said.

"It has not asked the complainant why she has requested the information. There is apparently no wider history of dispute or correspondence with the complainant and the Council has freely stated that this is the first time that it has received such a request."

The ICO notice then went on: "The Commissioner notes that the Council has been quite critical of the quality of the request, dismissing it as unfocussed and suggesting that it was not well-constructed enough for the Council to be expected to respond.

"Set against this is the fact that, in responding to the request, the Council's own refusal notice quoted the text of an entirely different information request to the one submitted by the complainant.

"Although the Commissioner has drawn the Council's attention to this, it has not acknowledged or accounted for this apparent discrepancy.

"The Commissioner considers one possible explanation is that the Council copied and pasted its response from a similar request and failed to alter the particular details of the request.

"This further suggests that the Council failed to engage properly with the complainant's specific request and that it relied upon assumptions and templated arguments, rather than considering all the circumstances of the particular case.

"Taking all the above into account the Commissioner places little weight on the Council's claim that the request is of 'no value'."

The commissioner also rejected the council's arguments that complying with the request would involve disproportionate work and effort, which "appear to focus on the unwarranted disruption involved in complying with the request, and, by implication, the burden this would impose on it".

The ICO notice went on: "While there will always be resource implications when dealing with any request for information under the FoIA, it is far from evident in this case that significant resources would have to be diverted to deal with the request, or that the effort involved would be disproportionate to the value of the request.

"The withheld information is to hand, not voluminous and could be disclosed readily and inexpensively."

The council itself had flagged up the need to take account of all the circumstances of the case when concluding that complying with the request would involve disproportionate disruption – but had failed to do so.

Finally, the council was also criticised for the time it took to conduct the internal review of its initial refusal.

An internal review should be conducted within 20 workings days or, in exceptional circumstances, 40 working days, the ICO notice said, adding: "In this case the review period was 58 working days. There does not appear to have been anything in the Council's internal review response to suggest that this case was exceptional (indeed, the internal review merely reiterated the original decision and failed to provide any additional analysis of the decision).

"The Commissioner regards such delays as not conforming with the section 45 code of practice."

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