Archives for October 2009

Last week the information commissioner issued a decision in his oldest outstanding freedom of information case - one that his office has taken the not inconsiderable timespan of four years and five months to determine.

If anyone is still interested, the case involves a request to the Scotland Office for material relating to the Sewel Convention, the convention that Westminster does not normally legislate on matters devolved to Scotland without the consent of the Scottish Parliament.

The Scotland Office initially turned down the request, but did release some documents during the commissioner's investigation. And the commissioner has now decided [128KB PDF] that the government was right "for the most part" to keep the rest secret.

Earlier this month the information commissioner's office disposed of another case over four years old (possibly, like buses, after a long wait several ICO decisions come along at once). This one relates to the Hawk 128 advanced jet trainer aircraft, and the commissioner has again decided [116KB PDF] in favour of the partial release of further material.

However, as the latest snapshot [166KB PDF] of the ICO's caseload indicates, the commissioner is still dealing with several other complaints that date back to 2005, most of them involving the Cabinet Office (one of which is mine).

The new Commissioner Chris Graham made some interesting remarks about the delays in his office on an episode last week of the BBC Radio 4 programme Law in Action, which assessed the state of FOI nearly five years after it came into force.

Mr Graham admitted that his office took too long to consider complaints, saying "We're not as efficient as we should be". He added that measures were in place to speed up, and that he was also telling public authorities that they had to make the FOI process more straightforward.

He described freedom of information as a cumbersome process like "a complicated stately dance with many parties", so that "it's a question of 'Will you walk a little faster?, said the whiting to the snail'".

This reference to the Lobster Quadrille in Alice in Wonderland, where the Mock Turtle and the Gryphon dance slowly and sadly round Alice while treading on her toes, may indeed capture some of the spirit of how the FOI system operates.

But if Mr Graham and his team are really seeking inspiration from a character in Alice in Wonderland, perhaps they have most to learn from the Mad Hatter.

He informs Alice that as long as you keep on good terms with Time, he'll do almost anything you want with the clock. He can make it go from nine in the morning to half-past one, time for dinner, in a twinkling. Equally well, he can "keep it to half-past one as long as you liked".

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The experience of feeling you're sometimes not getting a full answer to your question is one shared by FOI requesters and political interviewers.

It may be frustrating, but are you still finding out something? Yes, in the field of interviewing, according anyway to participants in Avoiding the Question, a BBC Radio 4 documentary which I have produced for transmission this Sunday at 10.45pm.

Some say you can learn a lot about party positions and internal tensions from exactly where interviewees do and do not feel the need to equivocate. And that the different ways in which different politicians evade questions helps to form their public image.

If you've ever thought Margaret Thatcher came across as aggressive, John Major ineffectual, Tony Blair smug, David Cameron smarmy and Gordon Brown mechanical, maybe this is more to do with how they've avoided questions than actually answered them.

So similarly can you learn something from the nature of those FOI requests that public bodies (yes, even the BBC, as I expect some commenters to point out) refuse and the way in which they refuse them?

Not always - as I've previously written, just because they're behaving as if they've got something to hide, it doesn't mean they actually have. But certainly sometimes.

Perhaps some public authorities might therefore volunteer to undergo the experiment which three MPs agreed to do for Radio 4's iPM programme last week - strictly giving yes or no answers. But it's not easy - witness Norman Baker and his vegetarian sausages.

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A new BBC Radio 4 series starting today - Parting Shots - reveals what Britain's top diplomats have really thought about the countries to which they were posted.

It features the valedictory despatches of ambassadors, their final message home in which they were traditionally allowed to express personal and pungent viewpoints. The programmes are based on extensive enquiries both in the National Archives for the older documents and also using the Freedom of Information Act to obtain more recent ones.

The series producer Andrew Bryson explains here the mix of intriguing and amusing discoveries about ambassadorial attitudes which he made through his persistent and thorough researches.

It's a good example of how freedom of information can be used to provide detailed insights into officialdom which would otherwise be impossible until much later after the event. (Declaration of interest: I'm the executive producer of the series).

The Foreign Office co-operated by disclosing some powerfully revealing material, although it also held some documents back on the grounds of protecting international relations (these refusals included Sir Christopher Meyer's valedictory from Washington in 2003 and Sir Roderick Lyne's from Moscow in 2004).

There are now some who say that the FOI Act means that diplomats may be less frank in future in expressing their opinions. These concerns are expressed in a later episode in the series by the former Foreign Office minister, Denis MacShane.

So if these fears prove true, what kind of material might no longer be committed to paper in an overseas post and sent back to London?

Here's one outspoken example of a valedictory despatch - divulged under FOI. It's from Sir Andrew Green, now chairman of the pressure group MigrationWatch, who in 2000 ceased to be Britain's ambassador to Saudi Arabia.

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The postal workers' union is warning that there's going to be a national strike unless the Royal Mail management comes up with new proposals.

But the letter above was written in 1996, when its author Alan Johnson was leader of the Communication Workers' Union and not, as he is now, home secretary in a Labour cabinet whose minister responsible for the matter has described such a strike as a "lunatic proposition".

Mr Johnson's letter was released to the BBC in the past following a freedom of information request.

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Last week it was stated that about one in three of the freedom of information requests to the Home Office were made via the Whatdotheyknow site.

And altogether 13% of FOI applications to UK government departments are filed through this site, which processes requests and automatically publishes the responses.

This is according to a statistical analysis posted on the site's blog last week. It compares the number of requests going through Whatdotheyknow to the official figures published for central government FOI applications for April-June 2009, the most recent data available from the Ministry of Justice.

I have some quibbles about this methodology. For example, some of the "requests" through Whatdotheyknow are most unlikely to be counted as actual FOI requests by the recipient department.

Nevertheless, it is clear from the broad picture that this is a remarkable achievement by Whatdotheyknow, which has been much more successful than I expected.

The growing role played by this site has happened at a time when the number of FOI applications to central government appears to be on the increase (see the 2009 data in Figure 1 and Table A in the Ministry of Justice statistics bulletin).

So one obvious question arises: How much is Whatdotheyknow boosting the total number of FOI requests, and how much is it simply providing a more convenient route for those who would ask the questions anyway?

It's clear that many people find Whatdotheyknow much easier to use than tracking down and implementing the official means provided by some public authorities.

Indeed, there are those who have described it as "too easy", apparently having to restrain themselves from "asking about various things that don't matter all that much..., remembering that there is a poor civil servant at the other end who's going to have to find the information".

But the evidence, such as it is, does not suggest to me that the growth in FOI requesting is particularly linked to the site. Looking at the individual departments, those with the biggest increases over the past year (eg Work and Pensions, Health) are not especially those which are most popular with the users of Whatdotheyknow.

Another potentially interesting analysis might be to examine whether Whatdotheyknow users receive quicker replies and more often get all they asked for than requesters whose responses are not automatically made public.

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Two High Court decisions today have narrowed the range of information which the BBC (and some other public bodies) could be forced to disclose to requesters under the Freedom of Information Act.

One involves the long-running case fought by Steven Sugar for access to the "Balen report", an internal analysis of the BBC's coverage of the Middle East. The other relates to financial information about certain programmes.

As I've discussed on numerous occasions before, the FOI Act only applies to the BBC "in respect of information held for purposes other than those of journalism, art or literature".

This has led to much legal argument about information which is held for a variety of purposes, partly covered by this exclusion clause or "derogation" and partly not (for example, programme budgets kept both for journalistic and for financial management purposes).

Until now this legal dispute has centred mainly on the question of which is the predominant purpose for keeping the material, for that to be the criterion to determine whether or not it falls inside or outside the requirements of the FOI Act.

But Mr Justice Irwin ruled today that this "predominant purpose test" is wrong in law, and in fact information falls outside the FOI Act if it is held to any significant extent for one of the purposes mentioned in the derogation.

In the key passage of both judgements, the judge said:

"The BBC has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes. The words do not mean that the information is disclosable if it is held for purposes distinct from journalism, art or literature, whilst it is also held to any significant extent for those listed purposes. If the information is held for mixed purposes, including to any significant extent the purposes listed in the Schedule or one of them, then the information is not disclosable."

The judge decided that the BBC was under no obligation to divulge the information at issue (although he did add that in these cases even on the basis of the predominant purpose test he would have ruled that the BBC was within its rights not to disclose the material).

These decisions also have similar implications for other public bodies which have a derogation in the Freedom of Information Act, such as Channel 4, the Bank of England, the Competition Commission and the Traffic Commissioners.

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If you're a freedom of information officer, I'm sure that occasionally you find some requests you receive a little irritating - even when you can't actually dismiss them as vexatious.

So I'm afraid I can't resist drawing your attention to the robust approach adopted this week by Jim Kalb, the mayor of Portsmouth in Ohio, USA.

He received an application under Ohio's open public records law for a document about the building of a children's playground, which seems to be the subject of some local controversy, from a Portsmouth blogger called Robert Forrey. A cursory examination of Mr Forrey's blog River Vices (Portsmouth lying on two rivers) suggests he is not entirely happy with his city's elected leader, having described him as a lapdog, a fathead and a goof-ball. And he evidently also has a rather low opinion of the mayor's wife.

The information request clearly did not go down well with Mayor Kalb. Having told Mr Forrey how he could obtain a copy of the document, the mayor decided to make some additional remarks:

"If there is anything else that I can do for you, which is required by law, don't hesitate to call my office. If it isn't required by law then don't bother asking, because I think that you're a worthless piece of..."

The mayor continued:

"You're a poor, lonely, jealous, old man with aspirations of being a writer. You write your lies and uneducated opinions on people and issues from behind the safety of your slobber stained keyboard with the hope that somebody will read them that doesn't know you and believe that you're more than the pitiful, broke-down, lizard-looking thing that you are, in my opinion. Get a life old man. On second thought, don't bother."

I have asked the mayor to explain, and he told me the following:

"Let me first say that I am an advocate of 'Open Record Laws' and my response to Forrey reflects that. I immediately responded to his request in a professional manner. My mistake was I should have sent my opinions of Forrey in a separate correspondence. What I'm not an advocate of is the freedom of bloggers to write lies, half-truths and slanderous insults about people (especially my family and me). This man is exactly as I described him in my e-mail, but my opinion of him had nothing to do with his request for information. I did not do this in a public forum either, it was a private e-mail."

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Disputes over access to information are usually between someone who wants to find something out and a public authority who doesn't want to tell them - but sometimes they involve someone else, who is the subject of the information and wants to stop an authority releasing it.

In the jargon of the FOI world this manoeuvre - trying to prevent a public body from disclosing material - is called a "reverse-FOI". And there's been an interesting example today.

The major waste management company Veolia has just lost its legal battle to block Nottinghamshire Council from revealing data to a local environmental activist, Shlomo Dowen. The High Court has this afternoon rejected Veolia's judicial review action against the council.

Mr Dowen has been campaigning against the company's plans to build a new incinerator and is the co-ordinator of the UK Without Incineration Network. He was represented in this case by Friends of the Earth.

He wants to see the full financial details of the waste disposal contract between Veolia and the council. In the summer he had arranged to visit the council offices to inspect documents relating to financial transactions with Veolia.

He argues this is in line with the Audit Commission Act. As I've noted before, for a brief period each year this gives local electors a little-used right of access to council financial information which is well beyond that guaranteed by the Freedom of Information Act. (If you want to take advantage yourself, the best guide is provided by the Orchard News Bureau).

But Veolia then obtained an interim injunction to prevent the council showing him the material. The company argued that it contained commercially sensitive information and releasing this would damage the business in relation to its competitors.

The High Court has now dismissed the company's case. Mr Justice Cranston ruled that Mr Dowen was entitled to see the material in question, despite Veolia's contention that it would lead to a breach of commercial confidentiality. The judge said:

"The obligation to pay local taxation through the rates was matched by the right given to rate-payers to an involvement in the process of ensuring the money was well spent... In my judgement, it is entirely unsurprising that given its history the law should permit a local elector such as Mr Dowen sight of the disputed documents in this case. The historic role of interested persons such as local government electors in participating in the audit process would be severely diminished without such disclosure."

This decision has been welcomed by the Audit Commission, which monitors value for money in local government.

Veolia have not responded to my requests for their reaction.

Update, 16:00: Veolia have issued the following statement:

"We first requested a legal ruling on this issue because we wanted to give clarity to local authorities, the general public and the waste management industry. The company accepts the judgement of the court and we do not plan to appeal. We look forward to delivering the next phase of the Nottinghamshire PFI waste management and recycling contract and will continue to build on the achievements of the last three years."

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