Bitesize tools to help FOI practitioners stay ahead of challenges

We’re here to help organisations get transparency and accountability right.   

We have been working behind the scenes, looking at common themes in Freedom of Information (FOI) complaints. By identifying patterns, we can provide more targeted advice and guidance, helping FOI practitioners stay ahead of the challenges.  

One of the ways we’re providing this targeted guidance is through a series of bitesize products on specific sections of the legislation. These do not look to add layers to existing guidance but rather complement what we already have.   

Our latest bitesize products aim to reduce the inappropriate use of exemptions in FOI responses and will be useful to all practitioners across the public sector.   

The resources will aid practitioners using four of the exemptions where our research showed help was needed:  

• Cost estimate worksheet

Public authorities can refuse a request where it’s estimated the cost of complying would exceed a set limit. This is the provision at section 12 (s12) of the Freedom of Information Act (FOIA). Our work with FOI practitioners shows it can sometimes be tricky to work out how to estimate the costs. It’s something we see reflected in the complaints we receive about FOI responses too, last year we dealt with 217 cases relating to the use of s12.   

Our new bitesize products therefore include a worksheet to support practitioners using s12 of the FOIA.    

Practitioners can also save a copy of the worksheet so they have a record of how the cost was worked out, which can be useful for the requester and if there is a subsequent complaint to us.   

• Future publication exemption tool

There is an exemption in the FOIA at section 22 (s22) which relates to information intended for future publication. Our new tool is designed to help practitioners considering when and how to use a s22 exemption. Our research shows authorities can struggle to know how to use s22 correctly – last year we upheld60% of complaints closed with a decision notice in cases involving it.  

We’ve tested it out with practitioners in our Upstream Feedback Group (UFG) who have given us positive feedback. One member said:

“The s22 tool is very easy to follow, and the guidance is very clear and really helps remove any ambiguity. We had a request last week which we were looking to exempt under s22, but using this guidance it was apparent that it would not have been appropriate, so it is already proving very useful.”  

Our full guidance on s22 is also available on our website and you can also search our decision notices to read past cases where we have ruled on complaints about how s22 has been used. For example, earlier this year, we upheld a complaint about the use of s22 by Harrogate and District NHS Foundation Trust to withhold copies of board papers.   

• Investigations and law enforcement tables

The section 30 and 31 exemptions relate to information about investigations and law enforcement. Both sections contain multiple exemptions so it can be hard for practitioners to know which to use. Our first new table helps to understand whether to use section 30 or 31 and the key differences in how they're engaged. The second table will aid practitioners to understand the law enforcement purposes in section 31(2).  

• In confidence

 Our final exemption tool relates to section 41 (s41). This exemption is for information provided to a public authority in confidence. Simply labelling information ‘confidential’ is not enough to engage this exemption. You must show that information was provided to you in confidence, that disclosing it would make you breach that confidence, and there is no public interest defence available if you do so. Our new jargon buster should help practitioners apply the exemption and clearly explain your refusal to requesters.  

One UFG participant told us: “Although I have a copy of the full s41 guidance, this bitesize resource is very useful. The s41 context given for each definition was in particular very useful and made the definitions much clearer.”  

As with all the exemptions, practitioners might also find it helpful to search on our website for previous related decision notices. For example, last year we partly upheld a complaint about the use of s41 in a case involving Coventry University. Further guidance regarding s41 can be found on our website.  

Improving searches and empowering the public  

Our four new exemption tools are the latest in our suite of bitesize products.   

We’ve previously published a checklist to help FOI practitioners working in small public authorities. The tool provides helpful tips for searching internally for information to answer FOI requests.  

We have also created a checklist to help people find information that is already publicly available. The tool, which can be found on the ‘for the public’ section of the ICO website, provides helpful tips as to where people can find resources which may provide the information they’re looking for. The aim is that this will help reduce the number of requests to organisations for information that is already publicly available, reducing their caseloads.  

We remain here to help FOI practitioners get it right. We want to provide you with the resources you need to help keep those building blocks of transparency and accountability strong and we hope our bitesize products do just that.