Category Archives: Cabinet Office

Lay, Laddie, Lay

In which I suggest the Information Commissioner could lay a report at Westminster drawing attention to compliance with time limits under the FOIA Act

The Scottish Information Commissioner (SIC), Rosemary Agnew, this week used the powers available to her under section 46(3) of the Freedom of Information (Scotland) Act 2002 (FOISA) to lay a report before the Holyrood Parliament. The report draws MSPs’ (and others) attention to

the issue of failure [by Scottish public authorities] to respond to information requests, and to stimulate debate about what we can collectively do to address it

The background is that approximately 25% of complaints to Agnew’s office in 2013/14 were about failures to respond to requests for information. Section 46(3) of FOISA permits the laying of reports “from time to time” by the SIC with respect to her functions. It thus confers a broad discretion on the SIC to draw attention to matters of concern to her. The report says

- Many public authorities have shown that it is possible to respond on time to large volumes of requests, but too many authorities are still not doing so. Delays and obfuscation are not only damaging to authorities’ relationships with individual requesters but also Scotland’s reputation for openness and transparency.
– The FOI experience is not consistent for all requesters or types of requesters
– Failure to respond is an issue, but it is not uniform across all Scottish public authorities.  Issues are more acute in some authorities than others

Requesters in the rest of UK experience similar difficulties, and similar lack of consistency, whereby some authorities are exemplary in the timeliness of responses to FOI requests, and some are very poor. As that last link indicates, the rUK Information Commissioner (IC) does monitor authorities for FOI compliance. He has also issued informal undertakings and even on occasions issued enforcement notices against authorities performing particularly poorly. However, what evidence there is does not suggest that this has led to overall improvements. Since 2009 the number of decision notices issued annually by the IC in which section 10 (“time for compliance”) was a factor have been as follows: 223 in 2009, 276 in 2010, 371 in 2011, 227 in 2012, 223 in 2013. These figures represent approximately 25% of all cases. They are not directly comparable with the SIC’s figures (which represent complaints made, rather than decisions notices issued) but they do suggest similar problems both sides of the border.

The IC does have essentially the same powers as the SIC to lay reports before Parliament (under section 49(2) of the Freedom of Information Act 2000 (FOIA)). However he has never exercised this FOIA power (there have been a couple of reports laid relating to data protection concerns). Given the serious concerns expressed by commentators about certain authorities’ attitude to FOIA, perhaps a report to Parliament would be a way of promoting debate – and improved compliance – which regulatory action has, to date, failed to achieve.

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Reducing regulation…by clogging up the courts

The only thing that made me stop laughing about the Cabinet Office’s arguments in a doomed Tribunal appeal was thinking about the cost to the public purse.

Soon after it was formed the coalition government made an admirable commitment to cut government red tape, by reducing the amount of domestic regulation

Through eliminating the avoidable burdens of regulation and bureaucracy, the Government aims to promote growth, innovation and social action

A Cabinet sub-committee – the Reducing Regulation Committee (RRC) – was set up, to “take strategic oversight of the delivery of the Government’s regulatory framework”.

Around the same time the government was also trumpeting its transparency agenda, with the Prime Minister saying, in an Observer article in September 2010

For too long those in power made decisions behind closed doors, released information behind a veil of jargon and denied people the power to hold them to account. This coalition is driving a wrecking ball through that culture – and it’s called transparency

One might not have supposed, therefore, that it would have been necessary in August 2012 for a request under the Freedom of Information Act 2000 (FOIA) to be made, for (merely) the number of times the RRC had met. Surely this is the sort of information which should be made public as a matter of course? But it was necessary. Moreover, this particular door stayed shut, despite the gentle tapping of transparency’s wrecking ball, when the Cabinet Office refused the request, citing the FOIA exemption which applies to information held by a government department which relates to a) the formulation or development of government policy, or (b) Ministerial communications (section 35(1)(a) and (b)).

The Cabinet Office continued to argue that this exemption was engaged, and that the public interest favoured non-disclosure, when the requester complained to the Information Commissioner’s Office (ICO). And when the ICO held that, yes, the exemption was engaged, but, no, the public interest favoured disclosure , the Cabinet Office appealed the decision.

The First-tier Tribunal (Information Rights) (FTT) has now handed down its judgment, and it makes amusing if dispiriting reading. Wholly unsurprisingly, the ICO’s decision is upheld, and it seems that the Cabinet Office’s argument boils down to two main points: “if we tell you how often the RRC has met then it might mislead you into missing all the great work being done elsewhere, and as a result that great work elsewhere might be adversely affected” (my apologies to the Cabinet Office if this misrepresents their position, but I’ve really tried my best).

The FTT had very little time for these arguments. The only thing vaguely in the Cabinet Office’s favour was that, as a lot of information about “reducing regulation” processes was already publicly available, the public interest in disclosure was small. But, rather devastatingly, the FTT says

the public interest in maintaining the exemption is so weak that it does not equal, let alone outweigh, the, admittedly light, public interest in disclosure (para 27) [emphasis added]

It is worth reading the judgment (which I won’t dissect in detail), as an example of a particularly weak argument against FOIA disclosure, but I would add three closing observations from which you might deduce my level of approval of the Cabinet Office’s conduct:

1. this was a request simply and merely for the number of times a government committee has met (how “transparent” is a refusal to disclose that?)
2. taking a case to FTT is not without significant costs implications (bear in mind this was an oral hearing, with a witness, and with counsel instructed on both sides)
3. the whole litigation in any case carries a huge hint as to the nature/substance of the information held (if the RRC had met often, would the Cabinet Office really want to withhold that fact?)

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The loophole to avoid enforcement?

Cabinet Office, FOI, Financial Times, Christopher Graham, blah blah blah

To recap. The Financial Times recently ran a resounding editorial on FOI, the ICO and the Cabinet Office, lauding the first, criticising the second’s lack of enforcement against the first, and lambasting the third. The Information Commissioner himself, Christopher Graham, replied in rather hurt tones, defending his office. Both Paul Gibbons (FOIMan) and Tim Turner have blogged on this. Here are my oar-sticking-in-coattail-hanging observations.

A key measure used by the Information Commissioner’s Office (ICO) to assess public authorities’ compliance with the Freedom of Information Act 2000 (FOIA) is the percentage of requests which are responded to within the statutory twenty day timescales. The guidance on this says

The ICO is may contact authorities [sic] if…(for those authorities which publish data on timeliness) – it appears that less than 85% of requests are receiving a response within the appropriate timescales.

Let’s ignore the obvious and worrying point that this is an encouragement not to publish such data. Fortunately for our purposes, government departments do commit to doing so, and quarterly reports covering the whole of central government are published. I can’t actually find them all on one page, so here are the reports for the last four quarters

April-June 2012
July-September 2012
October-December 2012
January-March 2013 

If you scroll through those datasets you’ll see that, over the last four quarters, the Cabinet Office has managed to respond to FOI requests within the statutory time limit or with a permitted extension in 92, 93, 95 and 86% of cases. Pretty good eh? This keeps them out of reach of the ICO radar. And, in fact, just prior to this, the Cabinet Office had been monitored by the ICO, and been required to sign an undertaking to improve, after appalling previous statistics had showed compliance in only 42 and 55% of cases in two quarters. After this monitoring period (the MoD were also monitored) the ICO announced

Both authorities have now improved their response times with over 85% of information requests being answered within the time limit of 20 working days and are working hard to deal with outstanding requests where responses have been unduly delayed. The ICO will continue to offer support and advice to help both Departments to ensure that outstanding requests are cleared as soon as possible.

However, what does “with a permitted extension” mean? It means, that in complex cases where a public authority needs more time to consider whether the public interest favours disclosure, it can disapply the twenty-working-day deadline and extend its time for compliance indefinitely, subject to reasonableness (although the ICO says it should be no more than an extra 20 days, he cannot enforce that). So let’s go back to those figures and see how the Cabinet Office would do if there wasn’t this potential loophole. If one simply asks “what percentage of requests were responded to within 20 working days?”, the figures are in fact 77, 77, 79 and 74%. Of course, without access to individual cases it is impossible to say whether these multiple extensions to consider public interest were made legitimately or not. However, the Cabinet Office appears to claim the extension much more than most other departments (the Foreign and Commonwealth Office has similar figures, however).

I am sure the Cabinet Office will claim that the reason it does this is because it has to deal with more complex cases. Maybe that’s the case, but it would be nice if someone could look into it. And, of course, the ICO could. The guidance on how authorities are selected for monitoring doesn’t stop at the 85%-compliance measure. It also says they may contact authorities if 

our analysis of complaints received by the ICO suggests that we have received three or more complaints citing delays within a specific authority within a six month period [or if there is] Evidence of a possible problem in the media or other external sources.

To which I say, ICO, the evidence is clear (look at Tim’s analysis, look at Paul’s, even look again at Chris Cook’s). Compliance stats are not the only measure (and even then they may hide the true picture). The triggers for enforcement are there, but is there a will?

And finally.

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Savile and Dishonourable Information

The Cabinet Office is required by the Information Commissioner to disclose internal correspondence about the conferring of honours on Jimmy Savile. Despite there being strong public interest arguments in favour of non-disclosure, they are outweighed by those in favour of disclosure.

There is an odd phenomenon, when considering the application of qualified exemptions under the Freedom of Information Act 2000 (FOIA),  that I like to think of as “the escalation of public interest factors”: if something is of great sensitivity, the corresponding public interest in disclosure is also great, with the result that the public interest in maintaining the exemption increases. This, is, of course, strictly, nonsense, but it is a phenomenon that public authorities can sometimes find themselves experiencing.

I note the phenomenon in the Cabinet Office’s handling of a recent request for disclosure of information relating to the conferring of honours on the benighted, and sadly still beknighted, Jimmy Savile. The requester sought

any correspondence [that] exists between either civil servants or ministers discussing the award either of an OBE in 1971 or a knighthood in 1996 [the knighthood was actually awarded in 1990] to Mr Savile, prior to either award being made

The information was, said the Cabinet Office, exempt from disclosure under sections 37(1)(b) (the conferring by the Crown of any honour or dignity) and 36 (effective conduct of public affairs. They

…acknowledged that this was an exceptional case in light of the information that had come to light in 2012 concerning Jimmy Savile [but] precisely because this was an exceptional case…the public interest favoured maintaining the exemption

The Information Commissioner’s Office, in a well-argued (n.b. I don’t always criticise the ICO) decision notice, has rejected the Cabinet Office’s arguments. The relevant exemptions are engaged, says the ICO, and there is public interest in maintaining them. So, in relation to section 37, the ICO

accepts that disclosure of the information would, to some degree, undermine the confidentiality of the honours system. The Commissioner accepts that this presents some risk of creating a chilling effect for contributions to future discussions in relation to honours nominees

however

disclosure would enable the public to be better informed about the matters taken into account at times when the award of honours to Jimmy Savile was under consideration. In the Commissioner’s opinion disclosure of the withheld information that is the focus of this request would go a significant way to serving the public interest, the nature of which is unique to this particular case

The ICO

wishes to emphasise that in reaching this decision he does not dispute the argument that disclosure would to some degree undermine the confidentiality of the honours system, simply that the public interest arguments in favour of disclosure attract more weight

Similar factors obtain in relation to section 36. So, while ongoing inquiries into the scandal mean that officials involved need a safe space to discuss relevant issues

the Commissioner does not accept that the safe space…will be significantly encroached by disclosure of this particular information…This is because the information focuses on one, relatively narrow, issue, namely Jimmy Savile’s receipt of two honours. In contrast the terms of reference for the investigations are wide ranging and cover matters of a wholly different nature

and while

the Commissioner accepts that it can be argued that the effective conduct of public affairs could be materially affected if disclosure of information under FOIA undermined the confidentiality of the honours system…the significant weight that the Commissioner considers should be attributed to the public interest arguments in favour of disclosure [mean that] the Commissioner has concluded that the public interest…favours disclosing the withheld information

Finally, although the ICO agreed that names of junior officials involved in the discussion regarding the conferring of honours were exempt under the Data Protection Act 1998 provisions of FOIA, the same did not apply to more senior officials and others. Even though

the individuals would have had a reasonable – and indeed weighty – expectation that such information would not be made public…the Commissioner believes that the legitimate public interest is only met, or, perhaps more accurately, best met, by revealing not only the comments of the individuals but also revealing who made them so that the recorded deliberations about the awarding of the honours can be fully and accurately understood

When finely balanced decisions on matters of public interest result in a recommendation for public disclosure it is common for an appeal to the First-tier Tribunal to follow. The Cabinet Office will have to consider now whether it wants to be seen to be trying to suppress information about the conferring on a serial sexual offender of an honour which the Prime Minister himself has questioned.

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The Right to Unknown Information

It is important to note that there is no requirement in the FOIA that those intending to make requests for information have any prior knowledge of the information they are requesting.

These words of the Information Commissioner (IC) in, Decision Notice FS50465008, are an important statement about the role of the Freedom of Information Act 2000 (FOIA) in investigative journalism and activism. They establish that, at least in the IC’s view, FOIA requests may be made on a speculative basis, without a knowledge of the specific contents of documents.

To many users and practitioners they are probably also an obvious statement about the right to information conferred by FOIA. If someone is asking for information from a public authority, it is self-evident that, at least in the large majority of cases, they do not know what the information specifically consists of – otherwise, why request it? As the IC goes on to say

The idea of a requirement of prior knowledge that the relevant information exists is itself contrary to the very purpose of the legislation, let alone prior knowledge as to what it comprises

The request in question, made – as those who followed the “Govegateimbroglio might have guessed – by the impressively dogged journalist Christopher Cook (who has given me permission to identify him as the requester), was to the Cabinet Office for

the last email received by the [Prime Minister] personally on government business via a private non-GSI account. I also want the last government email sent by the PM via such an account

It was made in the context of suspicions that attempts might have been made to circumvent FOIA by conducting government business using private email accounts. For obvious reasons Chris was unlikely to be able to identify the specific type of information he sought, and the Cabinet Office knew this, telling the IC that

he has no idea of the nature of the information that may be contained in such emails, if indeed such emails even exist…For a request for a document to be valid, it needs to describe (if it would not otherwise be apparent) the nature of the information recorded in the document. The Cabinet Office does not accept that asking a public authority to undertake a search for emails without any subject matter, or reference to any topic or policy, sent using a particular type of account can satisfy the requirement on the application to ‘describe the information requested’

However, the IC rejected this, splendidly demolishing the Cabinet Office’s position with an argument by analogy

a request for the minutes of the last Cabinet meeting would clearly describe the information requested, even though it does not describe the content by reference to the matters discussed

I think this decision is particularly important because it accepts that, sometimes, a person contemplating requesting information from a public authority might not have a fully-formed view of what it is she wants, or expects to get. Authorities sometime baulk at requests which they see as “fishing expeditions”, but the practice of investigative journalism (in de Burgh‘s classic formulation “…to discover the truth and to identify lapses from it in whatever media may be available…”) will often involve precisely that, and the IC recognises this

Whilst public authorities might find such requests irritating, the FOIA does not legislate against so-called ‘fishing expeditions’

 The Cabinet Office must now treat Chris’s request as properly-made under FOIA. That does not mean that they will necessarily disclose emails from the PM’s private email account (in fact I’d be amazed if they did), but no one ever suggested the trade of investigative journalism was easy.

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Why bother?

It is a statutory duty to comply with the 20-working-day response time to a request made under the Freedom of Information Act 2000 (FOIA). It is breach of the Code of Practice issued by the Secretary of State to fail to respond promptly to a request for internal review of a FOIA refusal (and the IC recommends 20 working days for this as well). It is a statutory duty, breach of which is potentially a criminal offence, to fail to comply with an Information Notice or a Decision Notice issued by the Information Commissioner (IC).

With all this in mind, and with acknowledgement that this is copied in total from an IC Decision Notice FS50427906, read the following comments by the IC, on how the Cabinet Office (who, er, have poor FOI history) handled a specific request, and weep.

73. At every stage during the handling of these requests and the investigation of this case, the Cabinet Office has been responsible for causing severe delays. As noted above, the complainant did not receive a substantive response to his requests until more than a year had passed following his first request, and over eight months following the second.

74. These responses were only forthcoming after the Cabinet Office was ordered to provide these in the earlier decision notice issued by the Commissioner. Even then, the Cabinet Office did not respond within the time limit specified in the notice. The internal review was also late and again was only provided following the intervention of the ICO.

75. During the Commissioner’s investigation the responses provided to his office were frequently late and incomplete. This necessitated the issuing of an information notice, which the Cabinet Office also failed to comply with within the specified time.

76. Given this background, the Commissioner trusts that the Cabinet Office will view the steps required in this notice as providing an opportunity to demonstrate to the complainant its commitment to its obligations under the FOIA and to providing a better service than the complainant has received thus far.

77. A record of the various issues that have arisen in relation to these requests and during this investigation has been made by the ICO. Issues relating to responding to requests in accordance with the FOIA and about responding promptly to correspondence in section 50 investigations have been raised with the Cabinet Office by the ICO in the past. The Commissioner is concerned that, despite this, issues of such severity have arisen in relation to the requests in this case. It is essential that the Cabinet Office ensures that there is no repetition of these issues in relation to future requests.

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Practice makes perfect

Wirral borough council is on the watch list at the moment. I would really like to send in a good practice squad to Wirral borough council, but I do not have the powers do that. I am not picking on Wirral; it is just an example that comes to mind

So said Commissioner Christopher Graham in evidence to the Justice Committee during a recent one-off session on the work of the Information Commissioner’s Office (ICO).

The rather self-contradictory observation that he was not picking on that particular public authority is not the most interesting point about his comments (although it does seem a bit hard on Wirral, when the Department for Education, the Department for Work and Pensions and the Office of the First Minister and Deputy First Minister of Northern Ireland are all also currently subject to formal monitoring for especially poor compliance with the Freedom of Information Act 2000 (FOIA)).

What does strike me, though, is his complaint that he lacks powers to “send in a good practice squad”. Although strictly true, there is an enforcement power which he does have, which equates to the power to send in a “good practice squad”, albeit with the consent of the public authority concerned. To my knowledge, however, this is a power he and his predecessor have never exercised.

Section 47(3) of FOIA says

The Commissioner may, with the consent of any public authority, assess whether that authority is following good practice

 In the ICO’s own guidance on his FOIA regulatory action policies, he says

 An assessment may be conducted with the consent of a public authority. It is designed to determine whether an authority is following good practice – and specifically, to assess its conformity to the codes of practice [made under sections 45 and 46 of FOIA]

A Standard Operating Procedure document (disclosed, ironically enough, by the ICO in response to a FOIA request) suggests that the ICO sees his policy of monitoring FOIA compliance in specific poorly-performing authorities as constituting a s47(3) assessment. However, my feeling is that this does not restrain him from extending his actions under this section to physically sending in “good practice” teams. Certainly the Scottish Information Commissioner sees his equivalent powers under section 43(3) of the Freedom of Information (Scotland) Act 2002 as a means of conducting such good practice visits, and he does approximately twelve of them a year.

I appreciate that the ICO prefers to take a more informal route towards enforcing FOIA compliance, by means, for example, of monitoring at a distance, or by issuing undertakings (“The culmination of negotiated resolution, [committing] an authority to a particular course of action in order to improve its compliance”). But there is doubt about how seriously some public authorities treat this informal approach. If he really did want to send in “good practice squads” I think he could certainly do so (and if an authority were to refuse consent, it could potentially trigger stronger powers, like practice recommendations and enforcement notices).

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The Public Interest in the Hillsborough Disaster

How could the Cabinet Office have originally decided the public interest favoured non-disclosure of information held about the Hillsborough Disaster?

On 15 December 2009 Alan Johnson, the then Secretary of State for the Home Department, announced that an Independent Panel would be appointed to enable disclosure of information relating to the 1989 Hillsborough disaster, and the events which followed it. The Panel would lead to

maximum possible public disclosure of governmental and other agency documentation on the events that occurred and their aftermath

As we all know, the Panel has now published an extraordinary amount of information, with a devastating covering report. It was not the Panel’s role to apportion blame for the tragedy but the disclosure has finally led to unequivocal public and political acceptance that, in the words of the Prime Minister, and despite previous despicable insinuations or outright pronouncements to the contrary

Today’s report is black and white. The Liverpool fans “were not the cause of the disaster”.

The efforts of bereaved families and those close to them in effecting this outcome can never be overstated. But a small part was attempted to be played using the Freedom of Information Act 2000. On 23 April 2009 a BBC journalist made an FOI request to the Cabinet Office for

Copies of all briefings and other information provided to Margaret Thatcher in April 1989 relating to the Hillsborough disaster [and] Copies of minutes and any other records of meetings attended by Margaret Thatcher during April 1989 at which the Hillsborough disaster was discussed.

The request was turned down. The Cabinet Office, rather than the 20 working days permitted by law, took nine months (they’re traditionally not very good at this FOI compliance thing, you must understand) to state that the information was exempt from disclosure under sections 31(1)(a), 31(1)(b), 31(1)(g) – which deal with prejudice to law enforcement – and sections 35(1)(a), 35(1)(b) and 35(1)(d) – which deal with information relating to the formulation or development of government policy, Ministerial communications and the operation of any Ministerial private office. All of these exemptions, if engaged, required consideration whether the public interest in disclosure outweighed the public interest in maintaining the exemption. In all instances, the decision was against disclosure: the public interest did not – according to those at the Cabinet Office determining this request – favour disclosure.

On appeal the Information Commissioner disagreed. He said

 the Commissioner considers it clear that the public interest in disclosure of information relating to the Hillsborough disaster – constituting improved public knowledge and understanding of the causes of and reaction to this event (and in relation to this specific information how the Government of the day reacted) – means that the balance of the public interest favours disclosure

He did not accept the Cabinet Office’s argument that the fact that the Independent Panel had now been set up was relevant to a decision as to whether the application of the exemptions was correct

 [the Panel] did not exist at the time of the request, or within 20 working days following the receipt of the request by the public authority. This Notice concerns whether the information should have been disclosed within 20 working days from the receipt of the request, and any factor that did not apply at the time of the request is not relevant

Notwithstanding this, the BBC ultimately agreed to withdraw its request, given the imminence of the outcome of the Panel’s work. And now we know the truth.

The Prime Minister went on to say in his statement

 At the time of the Taylor Report [Margaret Thatcher] was briefed by her private secretary that the defensive and – I quote – ‘close to deceitful’ behaviour of senior South Yorkshire officers was ‘depressingly familiar’. And it is clear that the then government thought it right that the Chief Constable of South Yorkshire should resign. But… governments then and since have simply not done enough to challenge publicly the unjust and untrue narrative that sought to blame the fans.

Information Commissioner decisions requiring disclosure of Cabinet minutes, and similar information, have four times been subject to a ministerial veto to maintain secrecy. Was the initial refusal of the BBC’s FOI request for this Hillborough disaster information simply reflective of a government approach which automatically seeks to exempt any Cabinet minutes from disclosure? I rather hope so, because the alternative is that officials, and ministers, thought that the public interest did not favour disclosure of information relating to what some are calling the biggest cover-up in British history.

UPDATE

I’ve been reflecting on this. I think it’s only fair to point out that, arguably, because the Cabinet Office took so long (nine months, remember) to get round to responding to the request, by the time they did so, the Independent Panel was set up. So, by that argument, the person looking at the request never actually determined that the public interest did or did not favour disclosure, until it was clear that it was going to be published in the future. The Information Commissioner did not accept that point

This Notice concerns whether the information should have been disclosed within 20 working days from the receipt of the request, and any factor that did not apply at the time of the request is not relevant. This situation applies regardless of the lengthy delay

and was correct in law not to, but in fairness to the Cabinet Office officials, they might have handled the request differently (by the time they got round to it) if the Independent Panel, with its remit to disclose, had not been set up.

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