It shouldn’t. But if your Freedom of Information requests get disrupted in the next few weeks, this might be having an impact.
We’re now in the pre-election period for the Scottish, Welsh and local elections.
All the guidance is that the pre-election period, when some public bodies need to be careful about what they communicate, shouldn’t impact on FOI requests. But that hasn’t always been the case.
What is the pre-election period?
The pre-election period of sensitivity (to give it its full title) happens in the weeks before an election. It affects what ministers, civil servants and local government can say and do. It used to be known as ‘purdah’ (we don’t call it that anymore).
For parliaments (UK and devolved administrations), the period generally starts once the parliament is dissolved. So in Scotland, it started on March 26 and in Wales, on April 8.
Local authorities are required to follow statutory guidance about publicity all year round. So the pre-election period is a period of ‘heightened sensitivity’.
This runs between the posting of notice of an election locally and the election itself. The posting of notice must be no later than 25 working days before polling day. For the May 7 election date, that was March 31.
What does it mean?
Generally during this period, ministers (including those in devolved administrations), civil servants and local government should exercise caution in making announcements or decisions that might have an effect on the election campaign.
What people in these roles can and can’t do is broadly governed by convention. It usually covers things like announcing new initiatives, launching consultations, or acting in a way that could be perceived as spending public money to influence the outcome of the election.
However, one thing they definitely can do is answer FOI requests:
Requests for factual information or freedom of information requests should be dealt with in accordance with the Freedom of Information Act (FOIA).
House of Commons Library Research Briefing, Pre-election period of sensitivity
Making FOI requests during the pre-election period
According to the Scottish Information Commissioner, this means people can still request information from public bodies in the run-up to the election, and those bodies still have a duty to respond promptly and within the statutory maximum timescales – responses to requests should not be delayed because of the election.
At this point (April 15), there’s only 16 working days till election day. So responses sent now may not be back before the election, especially if they’re more complex (or the public body is particularly bad at responding in a timely fashion).
Requests from candidates might have better luck. Guidance for civil servants says where their requests can’t be answered quickly, FOI officers should offer advice and assistance on how to refine them for a faster response.
Does the pre-election period affect FOI requests?
It might mean your ‘not an FOI’ information request is now an FOI.
“After the pre-election period begins, requests for new information are best handled by applying freedom of information (FOI) rules.”
This might be appealing. Following FOI rules means, in theory, all requests for information get treated the same. Information releases are because of statutory obligations and not driven by politics.
However, the political implications of an FOI response might cause hold-ups.
Guidance for staff in both the Scottish and Welsh parliaments says requests political implications should be discussed with more senior staff.
At best this means such requests are likely to take more time, just from waiting for more people to respond to questions. But the concern is, once you’ve got senior people involved in a potentially awkward FOI request, there’s a temptation to start bending the FOI rules (with delays and spurious refusals).
Also, if you wouldn’t have referred the FOI request to the department director outside of a pre-election period, would their potential influence on the released response count as political?
But the pre-election period really should have no impact
The ICO has had to issue a Decision Notice to a council for using the pre-election period as a reason to refuse a request (and this is useful to know if you run into a public body trying to do similar).
The requester asked for information about unpaid non-domestic rates. City of York Council said it couldn’t release the information as “it could affect public support for a particular party”, and suggested the requester make the same request after the election” (the exemption relied on was Section 44 – Prohibitions on disclosure).
When the ICO got involved it took the view that the prohibition on publication relates to material that is published by, or on behalf of, a local authority, information released under FOI is published on a statutory basis so that kind of disclosure can’t be “interpreted to be the same as the publication of material by the council itself”.
The council had also argued the requester was an active member of a political party and the information related to an ongoing campaign around non-domestic rates. The Commissioner said that wasn’t relevant.
So, with this Decision Notice, confirmation that FOI releases aren’t covered by the conventions governing other communications during the pre-election period, and that’s the case even if the requester is going to use the answer to campaign.
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