Each month in our e-bulletin, Future Perfect,we pose a conundrum and invite readers' views and comments. May's conundrum relates to requests for information and reads as follows...
Requests made of a public authority under the Freedom of Information Act (FOIA) must be given a response within 20 working days after receipt by the public authority (and the Environmental Information Regulations contain broadly analogous provisions - which are not the subject of this article). That delay increases if further information is required or if the authority requires payment of a fee. Whether intentionally or not, this can cause serious delay and uncertainty to those seeking information from a public authority.
It has been suggested to us that one method of tackling such a delay might be to write a letter to the authority under the pre-action protocol of the Civil Procedure Rules, seeking the same information as that outlined in the FOIA request. The pre-action protocol is designed to be used by parties to a dispute without resorting to the courts. Most importantly though, it can require a response in much less than 20 working days.
But what are the implications of making such a request? The Civil Procedure Rules state that a legal challenge may result if information requested under a pre-action protocol letter is not provided - because a dispute would remain unresolved. Presumably you would have to root the request firmly in terms of a real dispute - so that the separate basis for requesting further information of the authority could be justified. Remember also that documents disclosed under the pre-action protocol can only be used to resolve the dispute to which the request relates. Finally, particular care would have to be taken to ensure that no false or misleading allegation was made in the course of pursuing the request.
We suspect that this may be an avenue worth pursuing in extremis - where litigation may actually be said to arise by an authority's failure to disclose. But we have not yet attempted this purely as a means of obtaining information - has anyone else had experience of it?
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