Five FOI tips every lawyer should know

Freedom of information requests are straightforward, right? Actually, lawyers frequently go wrong when seeking information for clients, and the Scottish ICO highlights five common errors

15th April 2018 | Lorraine Currie

The Freedom of Information (Scotland) Act 2002 (FOISA) and Environmental Information (Scotland) Regulations 2004 (EIRs) can be valuable tools for lawyers seeking information to support their client work.

The Scottish Information Commissioner’s office investigates applications brought by requesters who are unhappy with the way a public authority handled their request. Lawyers might be expected to be more likely than the average applicant to navigate the requirements of the legislation, but we often receive applications from lawyers that we cannot investigate because the procedures set down have not been followed. This works to the detriment of the client, by delaying the response or preventing the Commissioner from enforcing the client’s rights.

FOI can be used by solicitors to obtain information that may support or strengthen their clients’ claims or negotiating positions. It can provide evidence and help to establish the standard to which a public authority ought to have been operating. For example, FOI can be used to find out whether policies, procedures or procurement rules were properly followed.

Lawyers have used FOI to obtain information about:

maintenance or inspection of pavements, paths and roads where accidents occurred;
flood prevention measures;
toxic contamination reports;
decisions in land acquisitions; and
employment and health and safety policies, e.g. working in adverse weather, or lone working.

It is easy to see the value FOI can add to cases ranging from personal injury, to road traffic accidents, property damage, or employment claims.

Where does it go wrong?

1. Ask for a review before coming to the Commissioner

The most common problem is when solicitors apply for a decision from the Commissioner before asking the authority for a review.

FOI is a three-step process. First, you must ask the authority for information; then, if you are unhappy, you must tell them why and ask them to review their handling of the request; then, and only then, can you bring an application to the Commissioner.

There are strict timescales on both sides. Authorities have a maximum of 20 working days to respond to an FOI request in most cases, but requesters also have deadlines to meet. A review should be sought within 40 working days of either receiving the response or the deadline for the authority to respond (whichever is earlier), and the application to the Commissioner must be made within six months of receiving the review response, or the deadline for response (whichever is earlier).

2. Name your client in the request

In Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73, the Court of Session found that for the request (and therefore any application to the Commissioner) to be valid, it must identify the “true applicant”, i.e. the client.

3. Separate your request from other correspondence, and address it directly to the FOI team

Although it might be tempting to add your FOI request on p 5 of your pre-litigation correspondence, or at the end of your complaint to the authority in question, it is not the best plan if you want to receive a response as quickly as possible.

Most authorities have dedicated FOI staff who are best placed to collate the information you have asked for and get a response to you quickly. If the request is buried among correspondence on other matters, it increases the possibility that there will be a delay in it being identified as an FOI request and sent to the right person.

4. Quote (the right) legislation

You don’t have to quote the legislation for the request to be an FOI request, but it does help to get the request to the right people more quickly.

We often see the wrong legislation quoted by lawyers. If you are asking for your client’s own personal data, that request should be made under data protection legislation, not FOI legislation. Remember that disclosure under FOI is disclosure into the public domain.

If the information is your client’s own personal data, frame your request as a subject access request under the Data Protection Act. If it is an FOI request, make that clear by citing the EIRs for environmental information or FOISA for non-environmental information.

5. Check first: is it already published?

Requests are only part of FOI. Authorities are also required proactively to publish a significant amount of information, and this is commonly done via their websites. If you ask for information that is already published, you will likely receive a response from the authority giving you a link that you could have found yourself. And you may have to wait up to 20 working days for it.

Try a quick search on the authority’s website for “Publication Scheme”, or their “Guide to Information”
(the index of information they publish under this duty).

Thinking of making an application?

The Commissioner’s online appeal service at www.itspublicknowledge.info/appeal checks for the most common problems and provides real-time advice on making a valid application to the Commissioner.