Part 2: The gift which keeps on giving

There are those who believe BS baffles brains. But when dealing with a qualified FoI practitioner, such as our public face, one knows when one is being feed BS by our Council, regarding a Freedom of Information response from them.

Following on from part 1 of the gift which keeps on giving, we give you part two, and yes it is the same council – Folkestone & Hythe District Council – who have scored another own goal. But this time they’ve done so by scoring an own goal regarding Freedom of Information, rather than the Environmental Information Regulations.

In a response on the 23/12/22, the Council state:

I am writing in respect of your request dated the 28/11/2022.

I apologise that it will not be possible to supply the information requested within the required 20 working day period.

We will endeavour to provide any relevant information to you as soon as is practicably possible. It is believed that we will be able to provide you with a substantive response by 23/01/2023.

We thank you for your ongoing patience and sincerely apologise for any inconvenience caused.

If you have any queries in the meantime please do not hesitate to contact me. You may also request an internal review by writing to the following address: Information.officer@folkestone-hythe.gov.uk

Following this, if you are not satisfied with the internal review response you may apply to the Information Commissioner for an independent review at the following address: casework@ico.org.uk.

Before going any further, one must understand that in the Freedom of Information Act (FOIA) there are two types of exemptions. These are“absolute” or “qualified”. If an absolute exemption applies, the Council does not have to release the information. There are nine absolute exemptions. If the exemption is qualified, the Council must weigh the public interest in maintaining the exemption against the public interest in disclosure. There are twenty four qualified exemptions, all subject to the public interest test. This means balancing the public interest in maintaining an exemption against the public interest in disclosing the information. Where the weight on both sides is equal, the assumption is in favour of disclosure.

The response as set out above and received from Folkestone & Hythe District Council is wrong, very wrong indeed.

Under FoI,  time for compliance – ie responding to the request within 20 working days – are set out at sections 10 and 17 of the Act. Both of these sections are concerned with the time limit(s) for complying with the request and what must be set out when refusing a request.

That said the Council have not set out any exemption they are using in their response, be it absolute one, or qualified one. If qualified they have failed to explain they are undertaking a public interest test.

If the Council require more time under FoI, they can use s10(3) of the FoI Act. However, if they do this they must first name the exemption they are using – these can be found between s21 to s44 of the Act.

But of course they’ve failed to do this.

It is clear that those charged with responding to requests are doing so inadequately and perhaps further training needs to be provided.

The last two paragraphs of the Council’s response again show how uninformed they are when dealing with FoI requests. These paragraphs state:

If you have any queries in the meantime please do not hesitate to contact me. You may also request an internal review by writing to the following address: Information.officer@folkestone-hythe.gov.uk

Following this, if you are not satisfied with the internal review response you may apply to the Information Commissioner for an independent review at the following address: casework@ico.org.uk.

This is wrong again.

The Freedom Of Information Act does not provide material support for an internal review carried out by a public authority forming part of the requirements of Part 1 of FOIA.  The Act does nothing to require an internal full merits review to be made under Part I of FOIA, even where a public authority has in place the complaints procedure contemplated by that subsection. This is supported by a Supreme Court decision, and three upper tier tribunal rulings.

How can they not know that?

Do they not bother to read the latest rulings handed down by the courts?

The answer to that last question, would from the evidence available, be a complete and resolute NO.

Information Officers can earn between £23,000 – £40,000. We strongly suggest our Council send its officers for “refresher trainer“, as the mistakes they’ve made are basic school boy errors; which they should not make.

The Cabinet member responsible for information access – FoIs, EiRs, SaRs, is Cllr Ray Field (pictured), who according to the Council earned £16,918 in allowances, in 2021/22.

Does he need to have a word with those tasked to respond to information requests?

Responding to FoIs incorrectly and misinforming the public they need to undertake an internal review, when the Supreme Court and Upper Tier Tribunals say otherwise, at best makes the Council look foolish, and at worse makes them look incompetent. But as always, we’ll leave you to make up your own mind, if those responsible for FoIs and EiRs are competent at their jobs.

The Shepway Vox Team

Peace, Love & Rock’N’Roll to you all