Archives for November 2009

The new Information Commissioner Chris Graham says he's devoted the first phase of his time in office to "listening and learning". Now he has decided on what he's going to do to improve the effectiveness of his organisation - it's responsible for freedom of information and data protection law - and to tackle his most pressing challenge, the huge backlog of freedom of information complaints.

So if you're waiting for a decision notice from the ICO, you might have to accept (in his words) a "silver standard" rather than a "gold standard" one - but at least it should be quicker.

This increased priority for speed is one of the measures he will be adopting, as he explained to me when I interviewed him last week. He's also restructuring the ICO and, in a symbolic move, has decided to call himself its chief executive.

"I don't think the ICO will be listened to unless we are effective and that means being on top of the business," he told me. "People say 'don't talk to us about deadlines when you're taking forever to do cases'. I have to get the machine right, because only at that point will anyone take notice of what I've got to say on the wider issues of the day."

He believes part of the backlog problem is the length of time taken in compiling decision notices. "What really gums up the works is my people feeling they've got to produce everything to a gold standard with eleven pages of legal argument that would survive a prolonged case in the European Court of Human Rights, when it's probably about something that is really insignificant. We've just got to prioritise."

And he's willing to accept one of the potential consequences: "We have got to be prepared to risk that, on some issues that are not hugely sensitive, we produce a decision notice that doesn't dot every 'i' and cross every 'T' - and if the Information Tribunal overturns one or two, it's an embarrassment, but it's not the end of the world."

However, it could well turn out to be quite uncomfortable. Only last week the Tribunal criticised an ICO decision from June for its "insufficiently rigorous" analysis. The commissioner said he needs to have "a more extended conversation" with the Tribunal about his new approach.

Mr Graham, who took up his post in June, has also decided on a major reorganisation of the workings of the ICO, gradually removing the internal division between its FOI and data protection functions. He told me that an integrated operation would help the ICO "operate more effectively and efficiently" and "become more customer-focused". He wants to see it range fully across the ICO's roles from good practice education to complaint resolution and enforcement.

He regards it as a logical step which will make the ICO more joined-up and give greater flexibility in use of resources. He insists that he doesn't want to dissipate expert knowledge in the process, but this move may well worry those who have in the past criticised the ICO for a lack of specialist FOI expertise. It's also bound to be disruptive during its introduction.

His decision to give himself the additional title of chief executive of the ICO (which has 300 staff at five locations) is part of his new strategy. "It's just making it clear that it's very much a management job and that part of being the information commissioner is running quite an operation."

When I met him, Mr Graham argued that his staff are enthusiastic about change and morale has been improving. He described a "fatalism" that had built up over the backlog, with depressed staff saying that "my little bit won't make any difference". And he claimed that "actually we found that by emphasising the need to get stuck in, it's energised the whole place".

There's been a concerted effort to clear some of the older cases. "The oldest cases are always going to be the most sensitive, they are the ones which are most hard-fought. I'm very concerned to crack on with them. We're making a big inroad. The number of cases which have been with us for longer than a year is 13% down on the same period last year."

"I just found the whole organisation is really up for all of this," he said. "It's not a criticism of anything that went before. It's simply that the times demand more from us."

He has a five-year term in the job, and he is planning that these measures to boost efficiency and tackle the backlog will enable him to move on to other priorities during this period. "I hope that it isn't going to be the issue that dominates my term, because I hope we'll have cracked it long before then."

Although he has concentrated so far on the internal working of the ICO, he also told me: "We do need to change attitudes in public authorities as well."

Mr Graham is looking for more co-operation from public bodies during the ICO's investigations. He wants to be able to warn them: "We're not going to take forever on this case, so you can't just kick it into the long grass and think it won't come back to see you for two or three years. It's going to come at you now and if you don't provide the information that we need, then we will issue an information notice to require you to provide it."

An information notice is a formal demand under the Freedom of Information Act which the commissioner can issue to public authorities which are not supplying him with the information he thinks is necessary to assess a complaint. The ICO recently provided me with a list of the 91 information notices [351Kb PDF] it has sent to public bodies so far. Mr Graham told me that authorities should know that he is fully prepared to issue more.

And today, the ICO is publishing a study of publication schemes in central government [108KB PDF], which shows that four government departments have not complied with the legal requirement to adopt a suitable scheme for indicating what information they will routinely release and that many others do not follow the ICO's guidance.

"It's a bit patchy - some of them get it, some of them don't", said Mr Graham. "Some of the schemes don't do what should be there. Proactive and routine publication is easier and much less costly. It should be absolutely routine that details of contracts, value of contracts, expenses, minutes of top-level meetings just should be up there on departmental websites."

He's going to be attending a meeting of departmental permanent secretaries to try to get his message over to them.

However, he's not pressing for FOI to be extended to a greater range of private companies than is already planned. He believes there is a strong theoretical logic to applying FOI to organisations operating contracted-out services like housing associations, but he doesn't want his resources to be further stretched. "It isn't a cowardly answer, it's a realistic answer," he insisted to me.

As for his current level of resources for the ICO's FOI work, he said: "I'm not expecting an increase in funding, but we should be able to hold our own. I really don't want to be rattling the begging bowl." He added that he hasn't experienced any problems so far in his relationship with the Ministry of Justice, the government department responsible for the ICO.

He does see one advantage for the ICO in the current circumstances: "The information-rights agenda really plays into the politics of lean times, because it's a way of demonstrating value for money in the public services, a way of shining a searchlight into the dark corners of public spending. This really ought to be very popular with politicians of every stripe."

He wouldn't comment on the proposal that cabinet and royal papers may be made absolutely exempt from FOI for 20 years until the government issues its formal response to the Dacre review of the thirty-year rule.

Mr Graham joined the ICO from running the Advertising Standards Authority, so he has experience of managing a complaints-handling body. Before that he worked for the BBC, first as a journalist and then in a top administrative role.

(This picture shows him 20 years ago in his BBC days. As you can see, the glasses have changed, but he may still be wearing the same tie.)

Some of my colleagues who remember him from his time at the BBC describe him as "cautious" or "careful", but this is a description that he rejects. "Some people think I'm being a bit reckless in the changes I'm making at the ICO. You have to combine care with energy and drive."

Mr Graham is also now getting used to the increased scrutiny that he personally will be subject to in this role. Recently, the ICO had to disclose his e-mail exchanges with the BBC, revealing that he had first accepted and then turned down an invitation from the BBC to attend the Last Night of the Proms.

"When I was at the BBC I never got that, so I started off thinking 'wow, great'," he told me. "But then I saw that the BBC is the second most complained about public authority - the Cabinet Office is number one, the BBC number two - so I thought 'don't go there'. It wouldn't have looked good."

"It's a slightly scary experience to realise that every e-mail you've ever sent will now be studied. It does make you think," he added, in a sentiment that may be shared by various other public officials.

I also asked him for his reaction to the content of the e-mails recently obtained from the University of East Anglia's Climatic Research Unit and published on the internet. He refused to comment on the detail, as the ICO may have to consider related complaints.

But discussion of the case prompted him to say this, which may well stand as a good summary of his position: "Everyone in receipt of public funds has got to wake up and smell the coffee and realise that we have had five years of freedom of information now and that's the deal - you get the money and you're accountable."

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The government spent nearly five years fighting the release of papers which illuminate tensions within Whitehall over the introduction of Scottish devolution and which have now been disclosed.

Last month, the information commissioner ordered the Scotland Office [129Kb PDF] to release hundreds of pages of material which was originally requested under freedom of information in February 2005. The commissioner's office took over four years to assess the case before reaching this decision.

The documents relate to the Sewel Convention, the commitment made when the devolution law was being passed that Westminster would not normally legislate on devolved matters in Scotland without the consent of the Scottish Parliament. It is named after the junior Scottish Office minister Lord Sewel, who announced the policy.

It is clear from the papers that the early workings of this convention were the subject of much tricky negotiation between the Scottish Office and other parts of the British government. The disclosures reveal the concerns within the Scottish Office over the attitudes of officials in other departments.

In one memo from November 1998, Iain Jamieson of the Scottish Office legal team wrote:

"These problems simply demonstrate just how unsatisfactory it is to allow Westminster to continue to legislate on devolved matters, other than quite exceptionally. Some Departments simply do not appear to have woken up to the fact of devolution."

In June 1999, another official, David Rogers wrote:

"I can see the difficulties but we're in a weak position re Whitehall. If we make it too difficult for them the buggers will just run roughshod over our convention on the basis that these Bills should be regarded as part of inherited landscape - Scottish offoce [sic] Ministers were consulted etc."

And in the same month, John Elvidge, who had been temporarily seconded from the Scottish Office to the Cabinet Office, wrote:

"I'm not surprised that this has proved problematic. The reason I didn't reply from Cabinet Office to the March letter was that settling procedures with the Welsh raised Whitehall hackles so much that I saw no prospect of a reasonable discussion if the issues about the Scottish Parliament were opened up simultaneously."

Sir John Eldridge is now the Scottish Government's top civil servant.

Lord Sewel himself soon became worried about the way the convention had started to operate in practice. In June 1999, his office circulated a memo saying that he was:

"greatly concerned about the procedure that is being adopted in relation to the Bills other than the FSA [Food Standards Agency] Bill. He feels we are taking the 'Sewel Convention' too far. He registered his concern at yesterday's Cabinet Committtee."

Since leaving government, Lord Sewel has repeated his view in public remarks that the convention had been used too widely.

I asked the Scotland Office for this material after the commissioner's judgment was announced. They only agreed to send me hard copies, but someone else has managed to get them to post electronic versions at the FOI site What Do They Know.

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Freedom of information can be a troublesome matter for some academic institutions - and this is well illustrated by the surprising content of some e-mails hacked from the Climatic Research Unit at the University of East Anglia and published on the internet a few days ago.

The CRU is a leading centre for the study of climate change and has played a key role in the work of the Intergovernmental Panel on Climate Change. It's also a focus of criticism for a vociferous band of climate change sceptics, who have started hunting through the large quantity of hacked e-mails with enthusiasm.

Whatever these e-mails may or may not say about climate change is outside the scope of this blog. But they are certainly interesting from the FOI point of view.

I should note that it is not yet possible to confirm beyond doubt that the hacked e-mails are all authentic. However, I have discussed them with the university press office and the CRU's director, Professor Phil Jones, who is the author of many of them. They both say that there are so many documents that they have not yet been able to check that they are all genuine. But it's certainly clear that some are real, and neither the university nor Professor Jones made any attempt to question the authenticity of any of them.

Several of the e-mails suggest that Professor Jones apparently had considerable unease at the requirements of the FOI Act (although I should point out that actually the material involved would be more likely to come under the Environmental Information Regulations, which lay down similar disclosure obligations).

According to one of the hacked e-mails, Professor Jones made the following remark with reference to two of his critics who want access to his data: "If they ever hear there is a Freedom of Information Act now in the UK, I think I'll delete the file rather than send to anyone."

According to another, he advised a colleague to delete e-mails relating to the IPCC's Fourth Assessment Report.

And according to yet another, he wrote: "Think I've managed to persuade UEA to ignore all further FOIA requests if the people have anything to do with Climate Audit."

But perhaps it is the following extracts from this one which best conveys Professor Jones's apparent feelings of coming under siege from information requests:

"When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sessions - one at a screen, to convince them otherwise showing them what CA [Climate Audit] was all about... I don't know who else at UEA may be getting them... We're away of requests going to others in the UK.
 
"The inadvertent email I sent last month has led to a Data Protection Act request sent by a certain Canadian, saying that the email maligned his scientific credibility with his peers! If he pays 10 pounds (which he hasn't yet) I am supposed to go through my emails and he can get anything I've written about him. About 2 months ago I deleted loads of emails, so have very little - if anything at all. This legislation is different from the FOI - it is supposed to be used to find put why you might have a poor credit rating !
 
"In response to FOI and EIR requests, we've put up some data - mainly paleo data. Each request generally leads to more - to explain what we've put up. Every time, so far, that hasn't led to anything being added - instead just statements saying read what is in the papers and what is on the web site! ... We've never sent programs, any codes and manuals.
 
"In the UK, the Research Assessment Exercise results will be out in 2 weeks time. These are expensive to produce and take too much time, so from next year we'll be moving onto a metric based system. The metrics will be # and amounts of grants, papers and citations etc. I did flippantly suggest that the # of FOI requests you get should be another."

When I put the allegation to Professor Jones that the hacked e-mails suggested he had supported deleting e-mails in breach of FOI, he said: "We haven't deleted any emails. I delete my own personal emails a year at a time regardless of subject as I have too many, but the university still has the emails."

Professor Jones also told me that he concurs with the view expressed by some other academics that freedom of information may be too intrusive into academic matters. He said: "My e-mails were personal. This is all about academic freedom. I'm just a humble scientist trying to do research."

The University of East Anglia denies that its FOI team reached an agreement with Professor Jones to "ignore" certain information requests. Its spokesperson told me:

"In some areas, there are persistent and motivated groups or individuals whose applications create a volume of work which is extremely demanding. Nonetheless, we try to respond to all such requests within our guidelines."

It adds that it consulted the Information Commissioner's Office on how to handle a large number of similar requests for climate data.

According to its latest published caseload [166KB PDF], the ICO is investigating one complaint against UEA over a request for "information about research, reviews, conclusions and reports into climate change studies".

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If you want to make an information request to the EU's directorate-general for employment, its webform asks you to indicate which of the 27 member states you are from. Strangely it also offers you one other option - you can say you come from Wales.

Why the employment DG has made this unique concession to Welsh nationalism is not immediately obvious. But this is one of the intriguing minor mysteries about the operation of the European Commission's access to information processes which is revealed in a report published yesterday by the campaign group Access Info Europe [1.32MB PDF].

Access Info asked the commission's main policy DGs for their internal guidance on how to handle requests made under the regulation on public access to EU documents [120KB PDF].

They were prompted to do this by the leak earlier this year of a vademecum from the trade DG. This internal handbook advised officials to write two separate reports of meetings, a factual one which could be easily disclosed and an assessment or evaluation which could be held back without the need to redact passages from just one document.

It also warned against "recording statements which may turn out to be politically embarrassing for those who have made them". And the guide added: "Avoid making personal comments in e-mails with third parties which may be the object of disclosure... (eg don't refer to the great lunch you have had with an industry representative privately or add a PS asking if he/she would like to meet for a drink)."

The commission defended these instructions on the grounds that they "make it easier to get reports out" and "avoid having to go through blanking out" documents, although the handbook has since been rewritten.

The new Access Info survey reports on what it calls "serious problems" in how its requests were treated, outlining numerous obstacles to access and discrepancies in the procedures of other DGs.

Although most complied, the competition DG refused to supply its guidance since it had been "prepared for purely internal purposes". (Contrary to first impressions the photograph does not show the Competition Commissioner Neelie Kroes looking in a bucket for her department's policy on this - in fact, this is her announcing a crackdown on price-fixing in the plastics industry at a press conference earlier this month).

And the campaign group criticises DGs who leave it unclear how members of the public should file requests, demand personal details from the requester, and make the process difficult for people who don't know English.

But as for the actual guidance obtained by the research, "the main finding was that after the shock of reading the DG trade vademecum, none of the documents released held anything particularly controversial. They were in the main part professionally written documents designed with the obvious intention of helping officials handle access to documents requests".

I've always wanted to find a way to write the headline above - now I just have.

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Sweden has had a freedom of information law for nearly 250 years - in fact, since its Freedom of the Press Act of 1766.

Tell people that date and they often think you've got the century wrong, by one if not two hundred years. Everywhere else in the world, FOI is a phenomenon of the past 50 years.

This Swedish tradition of transparency has had a powerful effect on the country's culture in many ways, as for example the BBC recently reported on Parliamentary expenses. But how and why did Sweden adopt this principle so far ahead of any other state?

It arose out of a period in eighteenth-century Swedish history known as the "age of liberty", and the main mover behind the act was an MP and Finnish clergyman Anders Chydenius (at that time, Finland was part of Sweden).

But there were other determined campaigners in the period leading up to the Freedom of the Press Act, one of whom was Peter Forsskal.

A new book published today contains the first translation into English of an uncensored version of his pamphlet Thoughts on Civil Liberty, 250 years after the censored Swedish original was issued.

As the commentary in the book makes clear, the Swedish head-start on FOI was not due to greater advances towards civil rights in general. In fact, Forsskal wanted his country to catch up with others, so that Swedes would have "liberty to think and write as one has in England and Germany".

The innovative approach taken in Sweden was the way the Freedom of the Press Act paid attention to state documents, treating guaranteed access to government records as part of ensuring full and open public debate - or, as the Swedish constitution puts it:

"Every Swedish citizen shall be entitled to have free access to official documents, in order to encourage the free exchange of opinion."

The botanist Carl Linnaeus, who taught Forsskal, chose the stinging nettle as a plant to name after his former pupil. This may have reflected his personality - but freedom of information often stings too.

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The quality of Gordon Brown's handwriting and spelling has been a big feature of the news this week, following the letter of condolence he sent to Jacqui Janes whose son was killed in Afghanistan.

His writing is adversely affected by his poor eyesight, which stems from the childhood rugby injury that left him blind in one eye. But how much has it changed over the decades?

It's taken me a little time to search through the collection of documents the BBC obtained under freedom of information from Edinburgh University about the period Mr Brown was Rector there in the 1970s.

He was elected to this post while a student, and I've written before about the disputes he then had with the university authorities.

But here is an example of what his writing was like 35 years ago. This was in his early 20s, after he had sustained the rugby injury but before what may have been further deterioration in his sight.

It's neater than the letter sent to Jacqui Janes and reproduced by the Sun, and in a thinner pen than the thick felt one he now uses.

But the "i"s are not dotted, several of the characters are written unclearly or merged with their neighbours, and he spells "sincerely" wrong - one word that he did get right in his message to Mrs Janes.

And what is he saying in this letter? He's telling the university authorities that as he lacks proper secretarial help he can't submit the paper he's been working on "in a readily presentable form".

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The Conservatives are accusing Labour ministers of trying to cover up failings in immigration policy because of the way the Home Office responded to a freedom of information request. This follows a story in the Sunday Times about how immigration officials had been allowed "to take risks" when tackling a backlog of applications to live in the UK.

This article was based on a Home Office FOI disclosure. It's been followed up in the media elsewhere.

The shadow home secretary Chris Grayling told the House of Commons: "More and more evidence is now emerging to suggest that the government broke freedom of information laws and tried to cover up a deliberate change of policy designed to encourage much higher levels of immigration."

The government of course rejects this. But in any case the funny thing about all this is that the "evidence" is contained in documents which have been publicly available on the Home Office website for seven months.

They were published on the department's log of FOI disclosures on 9 April.

The Home Office was forced to disclose them by a ruling from the Information Commissioner [280KB PDF], which also accused the department of missing deadlines and "failure to engage with the Commissioner's investigation".

So what does this tell us? To start with, perhaps opposition politicians and journalists (yes, me included) should read the FOI disclosure logs of government departments more carefully.

But perhaps it also tells us something about the relationship between the web and the media. Documents are available on the internet for anyone interested to read for several months - yet it's only when the mainstream media focus on them that other journalists and politicians get interested.

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Winter is approaching, and it's getting cold in Whitehall - uncomfortably so, for some.

There's an icy gale blowing through the offices of public authorities, and it's driven by freedom of information - that anyway is the view of some FOI-sceptics in officialdom.

While many others are worried about global warming, these people are concerned about the "chilling effect" - the idea that publicly disclosing internal discussions would inhibit officials from giving free and frank advice in future. But how cold really are the resulting temperatures?

These arguments are often central to assessing whether disclosing data is in the public interest or not. There's no doubt that some civil servants do genuinely agonise over this, as indicated for example by research earlier this year from University College, London [906Kb PDF].

But those who believe in a powerful chilling affect appear to have much difficulty in persuading the Information Commissioner and the Information Tribunal - not least because it would seem to imply that civil servants who respond in that way are rather unprofessional and willing to ignore the Civil Service Code.

All this is strongly illustrated by an important and interesting recent ruling [167Kb PDF] from the Information Tribunal. The case involved an FOI request from the Campaign Against the Arms Trade to the Export Credits Guarantee Department for a risk assessment relating to the Al Yamamah arms deal with Saudi Arabia.

Paul Radford, head of ECGD's Credit Risk Analysis Decision, told the tribunal that the impact of disclosure would not be a "chilling effect" but a "freezing effect", which he described as "catastrophic". "He did not know how the ECGD would manage, how it would conduct its affairs, how it would function to demonstrate it was doing a proper job."

This prediction of what sounded like a new ice age that would paralyse ECGD did not impress the tribunal, who dismissed his claims as "exaggerated", his language as "extravagant" and his demeanour as "dismissive".

The tribunal argued that senior civil servants would still have "sufficient courage and independence" to give robust advice, even in the face of potential public scrutiny. It then decided that ECGD should release the material involved to CAAT.

The department maintains it was right to take the case to the tribunal. Its spokesperson says: "ECGD takes its FOI responsibilities seriously, including its duty to protect information that it believes is exempt."

"Mr Radford is a very experienced economist whose contribution to the credit risk management work of ECGD remains highly valued," the spokesperson adds. "He did not intend to be dismissive. It is disappointing that the tribunal interpreted the expression of his genuinely and strongly held views in the way in which it did."

This is one of a number of freedom of information cases pursued by CAAT, which has used the FOI law extensively.

"FOI is very useful", says Ann Feltham from CAAT. "More information about how these huge arms deals are financed is now coming our way. We are definitely better informed, but it has taken a long while."

ECGD is currently considering whether it can appeal against the tribunal decision. So for the moment, we still have to wait to see whether the buildings of Whitehall are transformed into giant freezers.

In any case, always remember there are some people who prefer the cold.

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