To make a successful FOI request, take a big dollop of patience and a handful of top-class law students

Marilyn Croser, CORE Coordinator

Below is some background about our story in today’s Guardian on the way Shell and Rio Tinto successfully lobbied the UK government for support against human rights court cases in the U.S. The FCO documents were released to us at the end of February, for key quotes and analysis see this Amnesty International blog.

CORE made the original freedom of information requests to the UK Foreign & Commonwealth Office (FCO) and Department for Business Innovation and Skills (BIS) in July 2012, primarily to try and find out if the UK government had been lobbied by Shell to intervene in the Kiobel case. It seemed likely but we had no evidence.

It starts simply…

Making a FOI request is relatively straightforward, requiring a simple letter to the relevant government department stating the material you want. The first request was rejected on cost grounds, i.e. the departments were able to argue that the volume of material requested would take longer than one person working 3.5 days (all that they are obliged to spend on retrieving the info).

So we spoke to our friends at The Corner House who are very experienced in using FOIs and they advised us to try the ‘database search’ approach, pioneered by Greg Muttitt for his book Fuel on the Fire.

We went back to the FCO and BIS and asked them to search for key words and phrases on their electronic storage system and to send us the lists that were generated. This had the advantage of both overcoming the time limit (as it takes a few minutes – an hour at most) and giving a good picture of what they had on file and what to specifically request.

This produced a list of 18 documents from the FCO and over 120 documents from BIS, which in itself says a lot about where the drive for the UK interventions came from.

If at first you don’t succeed…

We made new requests to both departments for the release of the documents on the lists, unsurprisingly these were both turned down on the grounds of various FOI exemptions that public bodies can rely on, though some documents already in the public domain were ‘released’ to us.

You’d think that at this point it would be possible to appeal to the Information Commissioner’s Office (ICO), whose job it is to uphold information rights in the public interest but no, first you have to ask the people who’ve refused your original request to review their decision to not to release the information you want.

Already half-buried under BIS and FCO emails and letters relating to the requests, the internal review process almost finished me off. The reviews are supposed to be completed in 20 days, though up to 40 days is permitted for complex matters. I’ve got better things to do than go back and count up how many days it actually took, suffice to say that we had numerous emails from the departments apologizing for the delay in responding to us. When we eventually received the results of the internal reviews, we were no closer to getting hold of the documents that we wanted.

Did I mention you need to be a lawyer?

The next step was a complaint to the ICO. For reasons that are too boring to go into, just making the complaint, I mean just filing the thing was trial by multiple emails, and that was before we reached the stage of preparing the detailed submission that was needed to accompany the complaint.

It swiftly became apparent to me that you need to be a lawyer to make a complaint to the ICO. I mean, it’s not a stipulated requirement but if you’re not a lawyer, you’re going to struggle because you have to go through the case law showing how the various exemptions have been applied over time to argue that they shouldn’t be applied to your request.

It would have been totally impossible for CORE to do this without Ben Amunwa and Banyan SOAS Advocates and we are massively indebted to them for the huge amount of work that they put in. Thankfully it was all done pro bono so we’re not literally indebted to them.

Patience: a requirement, not just a virtue

After yet another lengthy wait – patience is another prerequisite for the successful FOIer – we received a decision notice from the ICO, upholding much of our complaint but allowing the FCO to continue to rely on legal professional privilege and international relations exemptions to withhold some material, pretty much as we expected.

We’re still awaiting the outcome of our complaint to the ICO regarding the way BIS handled our request for the release of the 120+ documents that they hold relating to Kiobel. Guess what? We’ve been told it’s going to be a while before we have a decision.

 

 

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