DE/LC/

Mr. D. Edwards

01424 787840

25 July 2008

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

Dear Sirs

What do they know

We have recently begun to receive requests for information via a web site www.whatdotheyknow.com .This raises a number of issues which do not seem to be addressed in your guidance.

1. Whilst it is clear that a request may be made by e-mail, there does not seem to be any ruling that an e-mail address is "an address for correspondence" as required by section 8. We have generally asked for a postal address. Subsection 2 goes to the trouble of specifying that a request made by electronic means is still "in writing" and it is a well-established legal principle that in construing statutes the expression of one thing is the exclusion of another and therefore the failure of the Act to also specify that an e-mail address is an address for correspondence surely indicates that it is not. Further, section 14 enables us to refuse "repeated" or "vexatious" requests which we clearly couldn't do if people used non-material addresses. Further, whilst under section 11 an enquirer can express a preference for the mode of delivery of the information, we may be unable to comply, possibly because the request relates to material like photographs that cannot be included in an e-mail and has to be sent by post; there is no provision to ask for a postal address at that point and yet a legal determination regarding the validity of the request would have to be made when it was received. The web site refers to advice issued by the Department for Constitutional Affairs, but this is advice to civil servants and does not purport to be a statement of the law. In any event the DCA does not exist any more; most functions having been transferred to the Ministry of Justice in May 2007 and so the web site is not maintained. 

2. Even if an e-mail address were capable of being an "address for correspondence", there is a difference between giving a home or office e-mail address and asking for information to be posted automatically on a public web-site. I have not tested the system, but I suspect that it would not be possible for me to send any kind of correspondence direct to the enquirer; effectively the

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address is an address for correspondence with the operators of “whatdotheyknow”; it is not an address for correspondence with the enquirer. The web site goes on to assure its users that "we will not disclose your e-mail address to anyone, including the public authority you are sending a request to..." which makes it fairly clear that the requests received via the web site do not even include a real e-mail address of the enquirer.

3. Section 8 also requires the request to state the name of the applicant. The web site encourages the use of pseudonyms referring to your own Guidance Note 6. On inspection, however, this is not about anonymous or pseudonymous requests at all. The inference throughout is that the public authority does know the identity of the enquirer; it is the relevance of that information that you consider in the Guidance Note. The web site refers to the possibility of local authorities objecting to obvious pseudonyms advising "you can avoid the problem by simply making your pseudonym look like a real person's name". Again, on the point of statutory construction it is difficult to see why Parliament said that a request must include "the name of the applicant" if all that is necessary is to give any name. If we do not have this information, then we cannot effectively monitor vexatious and repeated requests, or follow your Guidance Note advice. You do refer to the possibility of pseudonyms being vexatious in your Guidance Note 22, but the position is not entirely clear. An alternative analysis is that legally all the enquiries are made by “Whatdotheyknow” itself. This would raise questions of vexatiousness having regard to your guidance, because the requests are being generated automatically.

4. The request as received by us includes the following: "Disclaimer: This message and any reply that you make will be published on the internet.” I raised the issue of consent to the Re-use of Public Sector Information under the relevant regulations, and the attempt to enforce consent to publication but the copyright and defamation issues may be more serious. Basically, in complying with a statutory duty under the Freedom of Information Act 2000 I have assumed that the Council would have a reasonable defence if information were being supplied direct to the enquirer, and I have therefore always used exemptions sparingly. I am not confident that the same would apply when I know the information is going straight onto the Internet, and it would be more necessary to demonstrate that only information that legally had to be provided was given. As indicated, I have grave reservations about the whole principle and I need assurance that the Council is legally obliged and to comply with a request as received via this web site, as normal.

5. I have expressed my reservations and the Council appear now to be the victim of a campaign by the organisers. Having looked at the web site, there are disproportionately more requests logged against this Council than comparable nearby authorities which raises the question of vexatious requests but I have no means of knowing if the enquirers are genuinely independent of each other, or indeed, simply alter egos. We received a request in April and recently another 10, making a total of 11.

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Looking further afield I see that Manchester City Council has received 4 enquiries and Westminster City Council, just 3.  I have prepared a little table to demonstrate the point in relation to our local area:

I am sure that this would be an issue affecting other public authorities and I would be grateful if you would not only give me individual advice, but also provide a general guidance on the issues raised.

In conclusion, if it really is necessary for there to be a web site channelling requests to public authorities, and publicising responses, would it not be more appropriate for it to be operated by yourself?

I am a supporter of Freedom of Information, and this Council has never, to my knowledge, been subject to a complaint to you. I think it is important, however, that the system is not brought into disrepute by anonymous requests being encouraged.

Yours faithfully

David Edwards

Interim Solicitor