Reference 4852 | 4 June 2010
Internal Review
Freedom of Information Act 2000
link to page 5
Introduction
1.
This internal review has been requested by Mr. Steve Elibank following a request under the Freedom
of Information Act. The chronology and content of Mr. Elibank’s request are available on the Web at
www.whatdotheyknow.com/request/protected_pdfs: an abridged version of events (up to and
including the request for an internal review) is included in the
Appendix hereto.
2.
Mr. Elibank requested the review on the following grounds:
a. That the tone of the response was brusque and snide and therefore contrary to the spirit of
the Freedom of Information Act.
b. That the response was late.
c. That the University either deliberately misrepresented or did not know that “office closed”
days still count towards the time limit.
Summary of conclusions
3.
As a result of conducting the internal review, the University’s conclusions are as follows:
a. The complaint that the tone of the University’s communication was brusque and snide is
unsupported, although the communication was firm.
b. The complaint that the tone of such communication goes against the spirit of the Act is
unsupported. As a learning point, the procedure on the University’s web page
www.soton.ac.uk/inf/foi.html should be expanded to cover most of the points raised in
paragraphs 4 and 5 of the s.45 Code of Practice.
c. The complaint that the communication was late is well-founded: the response was one day
late.
d. The complaint that the University’s interpretation of working days was a deliberate false
representation is unsupported.
e. The complaint that the University’s interpretation of working days was due to lack of
knowledge is well-founded to the extent that the legislation should have been double-
checked before the University’s response was sent. As a learning point, the legislation will be
double-checked before responses are sent.
Ground 1: response brusque, snide and not in keeping with the spirit of the Act
4.
The
OED definitions of ‘brusque’ and ‘snide’ (when used as adjectives) are shown below:
Brusque:
1. Tart. (= It. brusco.) Obs.
2. Somewhat rough or rude in manner; blunt, ‘offhand’.
Snide:
1. Counterfeit, sham, bogus. Also more widely, inferior, worthless.
2. Of a person: cunning, sharp.
3. Insinuating, sneering, slyly derogatory.
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5.
Was the University’s response brusque and/or snide? This should be determined in the context of Mr.
Elibank making two allegations on a public web site which required rebuttal. The allegations were
potentially damaging to the University’s reputation, so the response had to be forceful yet measured
(in view of the fact that responses are published on the public web site). The allegations were (a) that
the University had previously ignored this request from another individual and (b) that [in failing to
respond within the statutory deadline], the University was breaking the law.
6.
The first allegation was not only incorrect, but Mr. Elibank must have known it to be incorrect. The
University’s
response to the previous request was set out on the WhatDoTheyKnow web site: that
applicant chose not to believe the University’s response that there was no documentation, but the
response was made – the request was not ignored. Furthermore, Mr. Elibank’s choice of words (“you
have previously ignored this request”) suggested (to the world at large) that the University had
disregarded its obligations under the Act, when that was not in fact true.
7.
With regard to allegation (b): Mr. Elibank was correct to state that the University had failed to respond
within the statutory deadline. However, his ensuing choice of words (“
and are thus breaking the law”)
was perhaps ill-advised. Breaking the law, to most people, suggests criminal activity, and this remark
was posted on a public web site. A more accurate and appropriate turn of phrase might have been
“and are thus in breach of your obligations under sections 1 and 10 of the Act”.
Was the communication not in keeping with the spirit of the Act?
8.
The spirit of the Act is that information should be disclosed – there is a presumption in favour of
disclosure. There is also an explicit provision in
section 16(1) requiring every public authority “to
provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to
persons who propose to make, or have made, requests for information to it.”
9.
The spirit of the Act had been observed, both in the previous request referred to above and in this
request, in that the University complied by responding that it did not hold the information requested
(as all information relating to this matter consisted of conversations). As the University did not hold
the information requested, there was nothing the University could do in terms of providing advice
and assistance.
10. Mr. Elibank also specifically refers to section 16 (“
particularly the section explicitly requiring public
authorities to be helpful to applicants”). The duty to advise and assist is dealt with in
Part II of the
s.45 Code of Practice. The paragraphs that are relevant are 4, 5 and 15:
4. Public authorities should publish their procedures for dealing with requests for information.
Consideration should be given to including in these procedures a statement of:
what the public authority's usual procedure will be where it does not hold the information
requested (see also III - "Transferring requests for information"), and
when the public authority may need to consult other public authorities and/or third
parties in order to reach a decision on whether the requested information can be released
(see also IV - "Consultation with third parties"),
5. The procedures should include an address or addresses (including an e-mail address where
possible) to which applicants may direct requests for information or for assistance. A
telephone number should also be provided, where possible that of a named individual who
can provide assistance. These procedures should be referred to in the authority's publication
scheme.
15. An authority is not expected to provide assistance to applicants whose requests are vexatious
within the meaning of section 14 of the Act. Guidance on what constitutes a vexatious request
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can be found in the DCA Handbook - ‘Guidance on Processing Requests'. The Information
Commissioner has also issued advice on dealing with vexatious and repetitious requests.
11. As regards paragraph 4 of the Code: an abridged procedure is set out at
www.soton.ac.uk/inf/foi.html (which is accessible by clicking on
Freedom of Information at the foot
of every University web page): this page does not, however, include the statements enumerated in
paragraph 4.
12. As regards paragraph 5 of the Code: the web page above contains links to the online request form
FOI-8, but does not contain an email address (although the FOI-8 form itself does) or a telephone
number. There is no named individual, although the Head of Legal Services is mentioned by title.
13. As regards paragraph 15 of the Code: the Code stipulates that public authorities are not expected to
provide assistance to applicants whose requests are vexatious. The ICO has issue
d long and
short
guidance on what constitutes a vexatious request. The ICO suggests considering the following
(according to the ICO, to judge a request vexatious one should be able to make relatively strong
arguments under several of the headings below, but one does not need to be able to answer yes to
every question):
Consider:
Comments
Can the request fairly be seen as obsessive?
According to the ICI, relevant factors can
include requests for information the
requester has already seen…
Would complying with the request impose a
Not in this case.
significant burden in terms of expense and
distraction?
Is the request harassing the authority or causing
distress to staff?
Is the request designed to cause disruption or
annoyance?
Does the request lack any serious purpose or
Arguably, as this request has already been
value?
answered before.
It is possible that Mr. Elibank’s request could be construed as vexatious: and if that was the case,
there would be no duty under the Code of Practice to provide assistance.
14. Learning point: the procedure on the web page
www.soton.ac.uk/inf/foi.html should be expanded to
cover most of the points raised in paragraphs 4 and 5 of the Code.
Ground 2: late response
15. Mr. Elibank is correct in suggesting that the University failed to respond within the statutory deadline
of 20 working days. Working days are defined
in section 10(6) as “
any day other than a Saturday, a
Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and
Financial Dealings Act 1971 in any part of the United Kingdom.”
16. The University acknowledges that it failed to respond within the statutory deadline and extends its
apologies to Mr. Elibank.
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17. Mr. Elibank states “
I have no idea why you chose to close your university office on April 6th-7th": the
answer is that the University, in common with other universities and schools, has closure days which
reflect the fact that its students are away. Although the University closure days do not count as non-
working days for the purpose of section 10 of the Freedom of Information Act, it is interesting to
note that maintained schools are entitled to exclude non-school days from the calculation: the
deadline is the earlier of 60 working days or 20 working days excluding non-school days: see
reg.3
Freedom of Information (Time for Compliance with Request) Regulations 2004/3364.
Ground 3: deliberate false representation or lack of knowledge
18. The University is satisfied that there was no deliberate false representation: had
section 10 been
double-checked beforehand, a different response would have been sent to Mr. Elibank.
19. As regards the allegation of lack of knowledge: the entire Act runs to 156 pages of A4. Although the
Act will have been read in its entirety by staff dealing with Freedom of Information requests, it would
be unreasonable to expect it to be committed to memory. Normally, the relevant sections are read
again, not only to refresh the memory but also to check for updates or amendments. On this
occasion, however, in his haste to respond, the member of staff responsible did not check the section
carefully enough or in full.
20. Learning point: this has been a useful lesson - the legislation should always be double-checked
before a response is sent.
Appeal to the Information Commissioner
21. This internal review concludes the University’s appeal process. If Mr. Elibank is not satisfied with the
internal review, he has the right to appeal to the Information Commissioner, either in writing (FOI/EIR
Complaints Resolution, Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF) or
electronically.
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Appendix
22. On 19 March 2010 at 08:50 Mr. Elibank made a request for:
“...copies of all the advice and discussions held by the University of Southampton or provided to
you in relation to the way you mark Freedom of Information requests to warn applicants of your
rights under Copyright and Intellectual Property law.
Please provide any documents from 1.1.04 to the current date. I appreciate that this may include
advice and discussion that has now been overtaken by newer advice and discussions.
Note that you have previously ignored this request from another individual, but I shall be
expecting an answer.”
23. On 21 April 2010 at 06:52 Mr. Elibank sent the following email: “You have failed to respond to my
Freedom of Information request within the statutory deadline, and are thus breaking the law. If I do
not receive a full response within 24hrs, a complaint will be lodged with the Information
Commissioner.”
24. The same day at 17:49 the University responded as follows:
We refer to your emails of 19 March 2010 and 21 April 2010.
You assert in your email of 21 April: “You have failed to respond to my Freedom of Information
request within the statutory deadline, and are thus breaking the law.” This is incorrect: the
statutory deadline is 20 working days following the date of receipt. Working days are Monday to
Friday, and the University was closed on 6 and 7 April as well as on the bank holidays of 2 and 5
April. The 20-working-day deadline therefore expires tomorrow (22 April).
You assert in your email of 19 March: “Note that you have previously ignored this request from
another individual, but I shall be expecting an answer.”. This is incorrect: our response to that
individual, available elsewhere on this site [FN1], was quite unambiguous and the substantive text
of that response is set out below, not only for your convenience but also as a substantive response
to your request:
“The University does not hold any recorded advice or discussions with regard to marking of
responses to FOI requests. Informal discussions were held within Legal Services (the University's in-
house legal department) with regard to how to respond to Freedom of Information requests where
the University's response would be published directly on the Internet. It was felt appropriate to
remind applicants who intended to publish the University's response to their request on the
Internet that their entitlement is only to the information contained in the response and not to any
material protected by intellectual property laws.”
25. Mr. Elibank responded the same day at 18:04 and asked for an internal review:
Thank you for your response. I wish to request an Internal Review of your handling of this matter,
due partly to the brusque and snide tone of your communication, which goes against the spirit of
the Freedom of Information Act (particularly the section explicitly requiring public authorities to
be helpful to applicants).
The other part is that this response WAS late. Section 10(1) of the Act required you to respond
within 20 working days, while Section 10(6) clearly states, "'working day' means any day other
than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday."
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I have no idea why you chose to close your university office on April 6th-7th, but they were not
bank holidays under the Banking and Financial Dealings Act 1971, and so are not excluded from
the timescale for responding to Freedom of Information requests.
The third element of my grounds for insisting on an Internal Review is that you either deliberately
falsely represented this to me, or did not know that "office closed" days still count towards the
time limit - neither situation is acceptable.
Please reply to this message to confirm that you are working on an Internal Review.
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www.southampton.ac.uk
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