FOIA Cat Strikes Again

I’ve been using the Freedom of Information Act to get information since 2007. Two years after becoming a reporter, I decided I wanted to do more than cover school sports days; I wanted to become an investigative reporter. It was a decision I arrived at gradually. The previous year, I’d won an award for an investigation into a suicide epidemic in North Belfast, where I grew up. When I figured out that digging for dirt had a real name – investigative journalism – I decided that would be my job – with the optimistic naiveté only a teenager can have. I bought Heather Brooke’s fantastic book on the UK FOI Act, Your Right To Know, because I figured it would help me learn how to “do investigative reporting”.

Nearly every story I’ve broken can be in some way credited to the FOIA. I’m a “documents and data” reporter. Sources give me a story and I find the documents to stand it up. Basing my work on a mixture of sources and paper trails makes it more accurate. It also leads me to bigger stories. So – if it’s not already obvious – I love the FOIA.

So what happens when a government official turns down my request for information? Below are a few tips, learned from experience:

1) Study the exemptions used very, very carefully. The UK FOIA contains exemptions which government/public bodies can use to withhold information. For example, if the information you’re requesting contains the personal data of a living person, they won’t release it (Section 40). Thankfully, they have to tell you why they’re not releasing it. This alone can provide clues about a story. For example, in a recent FOI response, NI’s police told me that they couldn’t release information about a crime because:

“….information may sometimes be provided by bodies listed at section 23(3). In this case, I am unable to confirm or deny whether the police hold any information relevant to your request and sections 23(5)….. are cited to protect the involvement or non-involvement of bodies listed at section 23(3).”

Despite the sketchy wording (“involvement or non-involvement”), I was able to deduce that they had received intelligence about the case from another security body (one of those listed under Section 23(3)). After months of digging, this was a big breakthrough. Even though they refused to answer my questions, I learned something new.

2) If a public body refuses to release information, ask them to conduct an internal review. If the review finds in their favour, you can escalate it to the Information Commissioner’s Office (ICO) who will then conduct an independent review. I recommend doing this. When public bodies refuse to release info, it’s often because they think the journalist will just go away. They’re betting that you have a deadline to meet and don’t have time to argue with them. Prove them wrong. If nothing else, you’ll make them think twice about denying requests on a whim.

3) When developing your argument for release of the information, think like a lawyer. Your impassioned plea for public accountability will fall on deaf ears. The only thing the ICO cares about about is if the spirt and letter of the law was followed correctly in the original decision. You must argue that it wasn’t and have the evidence to prove it. Build your case as if you’re a prosecutor trying to convince a jury.

4) When public bodies refuse to release information, their reasoning can be quite vague. My favourite excuse is: “It would not be in the interests of national security to release this to you – and we can’t tell you why because it concerns national security.” Often, it turns out that national security was not at risk at all; the real problem was a fear of negative press coverage. Use the ICO review as an opportunity to drill down into their reasoning. Even if the ICO sides with them, you may be able to glean information about what makes the information so sensitive.

Absolute exemptions require a different tack. As there is no public interest test, your only option is to argue that they shouldn’t have been applied in the first place.

5) Above all, be persistent. It may be a long and painful process but if you succeed at nothing other than being a pain in the ass to the authorities, you’ve succeeded.