Watchdog asks to reissue freedom of information guidance after councils are told to STFU about Brexit plans

ICO slams 'neither confirm nor deny' tactics as unlawful

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Updated The UK's data watchdog has asked two government departments and a Kent Brexit planning group to rethink advice given to local councils on how to handle Freedom of Information (FoI) requests.

At the end of last month, Kent Online reported that local councils were being told how to avoid releasing information about their work on planning for a no-deal outcome of the country's negotiations to leave the European Union, ostensibly so as not to cause public alarm.

Being one of the most significant political developments in the UK's recent history, the nation's departure from the EU is coming under intense scrutiny.

This means public authorities involved in planning will be receiving many more FoI requests – but in an apparent bid to curtail the amount of information making its way into the papers, the government reportedly sent those involved tips to keep emergency plans secret.

Applying a blanket approach to requests for information on a matter, rather than considering each issue individually, would not be in line with FoI laws – and the Information Commissioner's Office has made this clear to those involved.

Citing a leaked report from local co-ordinating group Kent Resilience Forum, the county news portal said that local bodies, such as emergency services and councils, were given a ready-made template for FoI requests on Brexit plans. This was said to have been issued following guidance from the Department for Exiting the European Union (Dexeu).

The paper said that, in a section titled "How to respond to Brexit-related FOI requests", organisations were advised to say they could "neither confirm or deny" they hold information.

They were also told to argue that disclosure wouldn't be in the public interest as it "would undermine the effective conduct of public affairs".

Such advice appeared to suggest the groups were being told to resist publishing information. Although the person making the request could appeal the decision – which would likely see the ICO carry out a public interest test – the overall effect would be to impede and delay access to the information.

The ICO has requested this guidance be reissued. The ICO confirmed to us that its director of FoI, Gill Bull, had written to Dexeu, the local government department and the Kent Resilience Forum to express concern about the guidance.

"I am very concerned that the guidance in question appears to strongly suggest that all information requests related to 'no deal' planning should be withheld," Bull wrote.

"As you are aware, advocating a blanket approach to responding to FOIA requests, regardless of the detail of those requests, is wrong in law and gives us concerns about compliance with the Freedom of Information Act."

We've also approached the Kent Resilience Forum, Dexeu and MCHLG. ®

Updated to add at 09:02 UTC on 26 February 2018

A government spokesperson said: "Following a request from Local Resilience Forums we provided guidance on how to answer FoIs on no deal planning. This balanced the government's commitment to transparency with the need to protect the planning process.

"It is standard practice to review our guidance and the original advice has been revised as planning has developed. New updated guidance has now been issued."

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