FOIMan comments on calls to suspend FOI as public authorities rightly prioritise dealing with the implications of COVID19.
It would be a vast understatement to say that these are difficult times. Public authorities from hospitals to the police to local authorities – stretched at the best of times – face an unprecedented challenge.
Amidst all the stories of people failing to distance themselves from others and lack of personal protective equipment, I’ve noticed that some authorities have started to call for FOI and data protection requirements to be suspended.
I’m a pragmatist. It’s absolutely right that public authorities prioritise the important work that is being done to fight the pandemic over answering FOI requests. The same is true of answering subject access requests and fulfilling other rights under GDPR.
However, it’s not just me that thinks that. The regulator for these laws, the Information Commissioner’s Office (ICO), has already said that they intend to take a sensible and balanced approach to enforcement. Last week they wrote that:
We are a reasonable and pragmatic regulator, one that does not operate in isolation from matters of serious public concern. Regarding compliance with information rights work when assessing a complaint brought to us during this period, we will take into account the compelling public interest in the current health emergency.
The ICO has also published guidance answering frequently asked questions about the interaction between data protection and authorities’ work during this crisis. This is a proportionate response to the current situation.
When it comes to FOI, there is nothing stopping public authorities from prioritising more urgent activities at times like these. The worst that can happen is that the regulator takes action against you – and if the regulator has already indicated that they understand the situation you are in, then concerns over that have already been mitigated. The other implications of failing to answer requests on time are that you might have some poor performance indicators for FOI at the end of the year and a bit of a backlog. In most cases though, these will be the least of your worries in coming months. Making a decision to prioritise COVID19 work over FOI or data protection rights deadlines doesn’t require a change in the law, nor does it need a government minister to decide on it – it just requires someone senior in the public authority to take responsibility (to be clear, this isn’t something the law says – it’s just the kind of balancing of priorities and risks that managers have to carry out all the time). As the ICO have done, it’s a good idea to publish a notice warning applicants that responses will very likely be delayed in the current circumstances.
What isn’t appropriate, in my view, are calls to suspend peoples’ rights altogether. We all have a part to play in a pandemic, and even if they can’t get answers right away, it’s right that individuals – and yes, the media – will be able to find out how decisions were reached and why eventually. From a practical perspective, the questions your FOI applicants are asking may help you to better tailor your communications strategy by helping you to understand what the public really wants to know. There will be some public authorities that have limited direct involvement in COVID19 work, and where answering FOI requests may be a task that can just as easily be done from home as in the office, so a suspension is not required. In any case, even were FOI requirements to be temporarily suspended, it is unlikely that that would stop people with questions writing in – a backlog of correspondence would still grow whether a statutory duty to answer it applied or not.
I mentioned above that we all have a part to play in a pandemic. Whilst I’m not convinced that suspension of FOI is the answer, I can understand why some are calling for it, and I have some sympathy with them. If you are thinking of making an FOI request, think twice at this time (I note as I write this that the House of Commons’ Speaker has asked MPs to do the same in respect of parliamentary questions to ministers). I always say that prospective applicants should think carefully before submitting an FOI request – they do take up time and resources whatever their value. But at this time in particular, it is hugely important that we try not to over-burden public authorities with less urgent tasks. If you can (and that’s most of us and most of what we want to know if we’re honest), please hold off on making FOI requests until the peak of this current crisis has passed. And if you do feel it is necessary, be aware that it might take longer than usual to get an answer – and try to be understanding of that.