Zilch, Nada, Bupkes - what happens when you get no response?

The Freedom of Information Act allows public bodies to refuse a request on certain grounds. If you make a request, you may be refused for any of these reasons. The refusal may be justified. But what if your request is not refused, but simply denied? Don't cry. It's not the end.

FOI: sometimes, it's a sprint. You submit a request, you get a quick response, it's finished. More often than not, though, it's a marathon: clarifications, internal reviews, appeal to the Information Commissioner, long wait, sometimes even court action. The experienced FOI requester knows the most important thing you need is patience.

But sometimes, you fall at the first hurdle. Sometimes, you wait and wait. And wait.

And there's nothing. Zilch, Nada, Bupkes. No response at all.

It's quite disconcerting, and if you're not used to FOI, it can be quite offputting to find an organisation has not even acknowledged your existence. Unfortunately, people unused to the FOI process sometimes leave it there, put off for good. And that's a pity.

Don't give up

The first thing to remember is, don't give up. The law says, very plainly, that you have the right to a response - even if it's a refusal. You should get an acknowledgement of your request within two weeks of its receipt.

If you've not heard anything within two weeks, you should take action. Firstly, to avoid any embarrassment, check that the message was actually sent. If it's an email, is it still sitting in your Outbox? If it's a letter, is it sitting around the house, waiting for a stamp?

Okay, once you're sure the message arrived, you need to get in touch with the public body. Remember the old rule: never assume there's a conspiracy when a cock-up is possible. The chances are it's never been actually noticed. It may be sitting in an unattended email account. It may have been deleted by a spam filter. It may have been sent to the wrong person, who has no clue that it needs a response. All of these things happen, innocently. Send a polite request to check that it's been received. This will usually be all that's needed.

Sometimes, especially with organisations who get very few requests, the person who gets it goes into a panic. They don't know how to respond, so they do nothing. A reminder should get them moving. Remind them (politely, of course) that if they don't respond in time, they're breaking the law.

What if you still get no response? Then it's time to get serious. If you have no reply at all within four weeks, this is 'deemed to be a refusal'. You can treat it as if they had refused your request. You have four weeks to request an 'internal review'. This means contacting the organisation again, telling them that you are taking their refusal to reply as a refusal of the request, and therefore you want them to review their action.

They then have to get their finger out.

What if they still don't reply? That's when you contact the Information Commissioner's office. Their job is to make sure public bodies do what they should. Contact them (within the following six months) to appeal against the failure to respond. Normally, there is a fee for an appeal - €50, or €15 if you've got a medical card. But as long as you've requested an internal review, and still got no response, no fee is payable.

The Commissioner should write to the public body demanding they respond. Almost always, this will be enough to get action. It doesn't put you straight back at the start line - you're at the internal review stage so if the response is not satisfactory, you can appeal again to the Commissioner (paying a fee, this time).

In short - never accept no response for a response. You have the right to a reply.

The Right To Be Wrong

The Right to Information in a democracy is a human right. But does it carry with it a degree of responsibility to support public officials - a Right To Be Wrong?

It’s the kind of story for which FOI was invented. The head of the government sends a senior civil servant to the home of the chief of the police force, late at night, to tell him he might not have the full support of the cabinet at the next day’s meeting. The message is clear – he ought to ‘consider his situation’.

The next morning he offers to resign, in three month’s time. The answer from the head of government is clear – he has to resign now. He agrees.

The news is announced. The head of government lets it be known that the police chief has not been sacked – only the full government could do that.

Some months later, a legal investigation reports on the affair, confirming that the chief of police’s decision to resign was entirely his own choice. Questioned about the case, the head of government expresses his surprise at the chief’s decision.

The general public, by five to one, say they don’t believe him.

What’s the truth? The public record should decide the matter. But there’s a problem. There is no public record. As the report puts it:

“It has been striking how little documentary evidence is available. Important decisions were not formally recorded and were communicated orally. Such work practices make it very difficult to identify what decisions were made, by whom and for what reasons.”

It’s almost as if people in government didn’t want the public to know what happened. 

The failure to record

Ireland's Freedom of Information Act 2014 confers a wide right of access to the general public to the records created in their name. But it doesn't make them create records. In a number of high profile political cases - such as the Banking Crisis of 2008 - the absence of written records has been identified as a major problem in identifying what went wrong.

That's probably not going to come as a surprise to Freedom of Information Officers. Ever since the law came into force, civil servants in every country have looked for ways to carry out business out of the sunshine: Private email accounts and Post-its, weird email retention rules. The experts may consider the 'chilling effect' of FOI a myth. But those of use who have worked in the public service know it happens: minutes written in a cryptic, uninformative way; documents rephrased to seem innocuous; or emails left unwritten in favour of a quick conversation in the corridor. (I confess, I've certainly done the last one).

For the civil service, it's a way of covering your back. But the long term consequences, as we've seen, can be a problem. Is it really just a case of public servants not doing their job?

The responsibility of power

Politicians are not the only ones who try to fit everything they do into a positive narrative. Their are other narratives, too. When the expense claims of former Defence Minister Alan Shatter were disclosed, much was made (on the front page of the Daily Star) of the fact that he had claimed €12 for a set of passport photos. Yet another case of wealthy individuals claiming petty amounts for personal items.

Except, as Deputy Shatter quickly pointed out, it wasn't. Travelling on an official visit to visit Irish troops in Lebanon, he was required to get an official visa, and was asked to get the pictures taken and submit an invoice. Now he was getting anti-Semitic abuse on social media.

Perhaps, for politicians, that's just part of the rough and tumble of the profession. Deputy Shatter is a major figure, a successful lawyer and well able to take care of himself. But what of the minor civil servant trying to handle a project which has not gone according to plan? What of the official working on a plan that might produce major improvements for the public - or might not? 

Is there a case for a corresponding right, along with the right of access to information, to make mistakes? Do we need to develop a willingness to allow public servants to get things wrong? After all, in the private sector, failure is taken for granted: nine out of ten startups fail, and only one in ten movies makes money, and yet they still make a profit. 

If we want good, innovative public services, do we not need to accept a Right to be Wrong?

Scheming for Information

In October, the final part of the Freedom of Information Act 2014 comes into force. That section provides for the introduction by each relevant body of a Publication Scheme. This is a little-known element of the law, but if you want to make good use of FOI, this is a very good place to begin. And right now (September 2015), you can even comment on what it should involve.

The basic idea of a publication scheme is that every public body should set out, in a specific document, a list of the kinds of information it holds. One idea behind this is to avoid people having to use FOI by proactively publishing information; but it also should make FOI requests more effective, by giving requesters a realistic idea of the kind of records held and the kind of information they can expect to find.

This replaces the 'Section 15 and Section 16 Reference Books' of the previous legislation with a provision very  similar to the UK FOI Acts. These don't seem to have been updated very often, whereas the Publication Scheme is supposed to be updated every three years.

My experience of Publication Schemes is that they're not as useful as they ought to be because most people aren't aware of them and tend to go direct to the FOI officer. But if you're looking for information about a specific organisation, the Publication Scheme is an excellent place to begin.

One way of making Publication Schemes work is to specify a model which everyone should follow. This makes sure the right information is included, and makes it possible to compare organisations with each other. Here's a good example of a Publication Scheme, from Robert Gordon University in Scotland.

Publication Schemes for Irish bodies don't come into force until October 2015. But there's still time to influence what they should include.

The Department of Public Expenditure and Reform has produced a draft model scheme for public bodies, along with some Guidance on Publication Schemes. If you want to comment on this, you have until close of business on Monday 21 September. Just send an email to cpu@per.gov.ie with the subject title Model Publication Scheme. (You don't have to be Irish - anyone with an interest in transparency can contribute).

Go on, you could make a difference.