FOI – A Practical Guide to the Freedom of Information Act
Here’s an edited version of a chapter I wrote with Paul McNamara for the book ‘FOI 10 Years On’, edited by Tom Felle and John Mair (Abramis). Our chapter is ‘Uncovering the state’s secrets: how to use FOI effectively’. It also appeared in the British Journalism Review (Volume 26, Number 1 2014).
The book is a great resource for anyone interested in FOI. You can buy it from Amazon here.
Uncovering the state’s secrets: how to use FOI effectively
Investigative journalists Guy Basnett and Paul McNamara routinely use FOI to uncover the secrets of our public bodies. Their work has revealed how foetuses are incinerated as clinical waste, police shoot children as young as 12 with Tasers, and children vanish from council care. Here they tell you how to get the most from FOI – by generating ideas, using FOI smartly, and fighting for the information you have a right to know.
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. We revealed how hospitals in the UK were incinerating miscarried and aborted foetuses as clinical waste (The Sunday Times, 23 March, 2014); that police officers were using 50,000-volt Taser stun guns on children, including a mentally ill 12-year-old girl (Sunday Mirror, 2 June, 2013); 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); that 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 weren’t for FOI.
Yet 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:
- Having great ideas (constantly think: what can I ask?);
- 2. Getting the requests in (don’t get bogged down – just send them); and
- 3. Fight (always push for information you have a right to know).
Countless times we’ve seen the results of a good FOI and kicked ourselves: “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.
Think of topics such as police brutality, child sexual exploitation, NHS failings, slave labour, radicalisation, obesity. What information exists but isn’t routinely published, and who holds it? As more officers were armed with Tasers we started to think of the details that would give us a clearer picture of how they were used. We asked all forces for 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).
Many stories focus on one event, but raise 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).
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 real-life feature in the 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).
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 needs their 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.
Once you have the idea, the most important thing is getting the request in. We’re constantly amazed by journalists 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: email@example.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? 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. 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.
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. 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. Others are “absolute”, so public interest won’t help. These are all detailed in the Act. 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.
Once the basics have been conquered, it’s a relatively small step from putting in a simple FOI request to using FOI to produce in-depth investigations capable of affecting change. Like any story, FOI investigations need human sources. Specific knowledge will make your requests much more powerful. The more targeted you can be, the more likely your request is to succeed. When we looked into the growing number of child sexual exploitation cases across the UK, we spent time talking to social workers dealing with the aftermath. They told us teenage girls were routinely going missing from council care, and falling prey to predators. They explained how logs are often kept of each missing episode, along with details of the children going missing. We were able to ask all councils how many children had gone missing from their care over the past three years, the number of times a specific child had gone missing, and their age and sex. Aside from revealing the thousands of teenage girls that go missing, we also discovered that toddlers and even babies go missing, sometimes for up to a year. The story ran as an investigation for Channel 4 News and The Sunday Times (8 June, 2014).
It pays to understand the architecture of how the information you want is gathered and stored. Try to find out exactly what information is held, how, and under what phrasing, categorisation or even code. This information could be buried in reports, descriptions of data files, or the minutes of an authority’s meetings. Knowing this can bring a laser-like focus to your request and give you the results you want. For example, we used the NHS coding system to ask for details of the growing numbers of babies and children admitted to hospital due to obesity (The Sunday Times, 13 October, 2013).
Imagine the first four paragraphs of your investigation, or sections of your documentary, and think what extra details you might need. Request figures from previous years, so you can get a picture of trends, or request contextual figures that allow you to calculate rates that will tell the real story when comparing performance levels between organisations. Ask for the summaries of individual incidents so your story will have more than just numbers. These are all tactics that can make the difference between obtaining a fairly bland set of numbers, and rich information that will tell a compelling story.
Now you understand what information is available and exactly what you need to tell your story, ask for it in a clear and methodical way. We outline the gist of our request before stating what we are “specifically” seeking using numbered questions. These should be unambiguous. We set out the date ranges of any information we’re interested in, and are clear whether it’s calendar or financial years we are looking at. If we ask for information to be broken down, we’ll include examples of the type of details we require. We may specify the digital format we want to receive the information in. And we may even provide model tables for them to follow. With this clarity and focus FOI becomes a very powerful tool.
Now your request is in, it’s time for the unglamorous bit – managing your data. If you want to FOI on a national level and achieve a comprehensive response rate from all police forces, or NHS trusts, or county, unitary, and district councils, then you need to find a way to stay on top of things.
We use Google Sheets, which allows a whole team to work on the same spreadsheet simultaneously, keeping tabs on which requests have been acknowledged, need to be appealed, or have come back successfully. We religiously update our lists of FOI contact details, so we’re not caught out when authorities change them. And we have a number of folders to keep every email in the correct place. It sounds boring, but it’s vital in large investigations. When we examined council spending for Channel 4’s Dispatches we submitted multiple separate FOI requests to all councils in England, Wales, Scotland and Northern Ireland. Each request could generate more than 400 acknowledgements, and 400 responses, not to mention clarifications and appeals. We couldn’t have achieved 90 per cent response rates and 100 per cent accuracy in reporting the responses without being obsessively organised.
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.
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 (Information Commissioner’s Office, 2014). 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. 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, and the Freedom of Information Act can carry on doing exactly what it’s designed for: uncovering the public interest stories that would otherwise remain hidden and untold.
Guy Basnett and Paul McNamara are founders of the investigative news agency OpenWorld News. This is an edited chapter from FOI Ten Years On. Freedom Fighting or Lazy Journalism? edited by Tom Felle and John Mair and published by Abramis Academic.