Act of July 4, 1966, Public Law 89-487, 80 STAT 250, which amended section 3 of the Administrative Procedure Act, chapter 324, of the Act of June 11, 1916, to clarify and protect the right of the public to information., 07/04/1966 (Page 3 of 3) (Photo credit: The U.S. National Archives)
Is quality or timeliness the key to FOIA success?
If you work with freedom of information, you face an eternal debate: is it better to have a lower quality response on time or a complete response that is overdue. In large organisations, it can be difficult to have quality and timeliness coincide for complex requests. The question is not an idle one because it can influence how organisations manage their FOIA process in the time of reduced funding for public sector organisations.
The choice is not without consequences. Late responses can lead to the regulator, the Information Commissioner’s Office (ICO), investigating and potentially issuing an enforcement notice, or, if response times are chronically late, monitoring the organisation’s responses for three months. The monitoring creates adverse publicity. By contrast, poor quality responses will lead to increased requests for internal reviews that increase the work at a time the organisation was trying to reduce costs. If a poor quality response leads to an internal review, and the applicant is unhappy with it, they can complain to the ICO. A complaint can lead to decision notices, which create additional work. At the same time, a rushed response may either release information inappropriately or apply an exemption, to withhold the information, incorrectly.
From my research and analysis, I suggest that quality rather than timeliness is the preferred choice because quality creates less complaints or additional work. To put it crudely, half a loaf is better than no loaf. If that half a loaf is high quality then there will be less likelihood of a complaint and additional work. To support this argument, I analysed the government’s published FOI response rates in 2012.
The central government’s approach to FOI suggests that timeliness rather than the quality creates the bureaucratic burden. Their approach creates more work. I would speculate that it reflects a concern with internal compliance, an output, rather than an outcome. By that I mean, the performance suggests a focus on a target, the response rate, rather than the outcome, the content or quality of its responses. Too much of a focus on timeliness, an output, will distort the desired outcome, inform the applicant. If the applicant is not satisfied with a response, especially those that appear cursory or refuse the information without good reason, they are more likely to request an internal review and complain to the ICO. An internal review and a complaint to the ICO mean more work for the organisation. One caveat to note is that I have not considered whether the organisation needs to apply more exemptions or specific exemptions because they hold sensitive material like national security documents.
To explore the issue, we need to look at the central government’s monitoring statistics. http://www.justice.gov.uk/downloads/statistics/mojstats/foi-statistics/foi-stats-bulletin-q2-2012.pdf . I selected the Department for Transport (DfT) at random. If we look at the statistics over the last three years, we can see the following emerge.
First, the DfT has responded to 92% of its requests within 20 working days. On the surface, this looks to be a good response rate. Yet, we need to look beneath the surface to understand the wider context. We need to consider the rate of full responses, the number of internal reviews, and the number of decision notices.
Percentage of responses considered responses in full
A response in full is one where no information is refused or exempted. These requests are less likely to receive an internal review leading to a complaint to the ICO. The DfT had 70 % of its responses as being responses in full. This means they either exempted the material or were unable to provide it. By comparison, no central government ministry that is monitored for FOI was above 80% on consistent basis. This might suggest that the central government uses exemptions more frequently. An important secondary question, that a different research project could explore, is whether those exemptions are appropriate or are they overused to give a quick response. In other words, if in doubt apply an exemption. If the applicant is dissatisfied with the response, this will lead to internal reviews. An applicant can submit an internal review request when the 20 working day deadline is missed but most applicants request an internal review when they are dissatisfied with the response. The applicant would be able to complain that material was missing or that the wrong exemption was applied or the exemption was applied incorrectly.
Decision Notices tell a story
The DfT has received 30 decision notices in the last 3 years up to 2012. Of these decision notices, 21 were upheld and nine were not upheld. The ICO issues a decision notice after investigating a complaint. The applicant has to go through the organisation’s internal review process before they can appeal to the ICO. If the internal review does not resolve the issue, they can appeal to the ICO. At that point, the ICO has to contact the organisation to resolve the complaint. In all cases, they ask the organisation to resolve the issue informally if possible. If this is not possible, they have to investigate the complaint and either resolves it informally, have the organisation comply without a decision notice, or issue a decision notice to require the organisation to comply or to uphold the organisation’s refusal.
A Stitch in Time Saves Nine
As a rule of thumb, for each complaint to the ICO, there are at least two to three internal reviews that are resolved satisfactorily so they never go to the ICO. Of the internal reviews that go to the ICO, usually, half of these are resolved informally without a need for a decision notice. What this means is that for 30 decision notices, you are looking at 60-100 complaints to the ICO. For there to be 60-100 complaints to the ICO, there has to be roughly 200-300 internal reviews.
Each internal review and each ICO complaint creates more work. This regulatory burden is self-inflicted. The focus on output, the timeliness of the response appears to undermine the outcome, a satisfied applicant. The dissatisfied customer creates more work for the organisation. The best way to describe this is that a stitch in time saves nine. If the organisation is focused on timeliness and quality of the response, a full response, then there are going to be fewer internal reviews and fewer complaints to the ICO. However, this would have to be balanced against the need to apply exemptions appropriately and when required. There is no advantage for an organisation to satisfy the customer at the cost of the organisation because it does work in the public interest.
Other factors to cut the regulatory burden can be useful. First, better customer service would cut its FOI burden by doing as much as possible to cut the complaints to the ICO. Second, proactively publishing more material will cut the number of requests. Finally, the organisation will want to check whether its internal process focuses on timeliness at the cost of quality. A process that provides better responses, even at the cost of timeliness, may actually do more to protect the organisation’s resources.
From my research, I would tentatively suggest that the best result is quality and timeliness. This is obvious as it is the ideal that all organisations want to deliver. The next best result is quality over timeliness. A high quality response reduces the chances of an internal review. There is still the issue of timeliness but that is less likely to lead to an internal review or a complaint to the ICO. The next best result is timeliness over quality. A quick response does show an efficient process even though it may not be an effective process. When timeliness is the priority, is that for the benefit of the customer or the organisation? The worst outcome is low quality and poor quality.
My results though are tentative. I would suggest that a research into the question would survey applicants to understand their preferences and their expectations about timeliness and quality. The approach would need to explore if organisation make the trade-off between quality and timeliness explicitly or implicit. Further research would consider how the exemptions used by an organisation influence timeliness. For example, are they using some exemptions quickly to buy time or to deter an applicant? Alternatively, the exemptions may be right but poorly explained. In any case, the use of an exemption will have an effect on their response rates and the quality of the responses. Further research is needed to confirm these hypotheses and explore how organisations apply exemptions as part of the trade-off between quality and timeliness.