A Question of Apparent Bias?

So, the Information Commissioner’s Office (ICO) has been using “ctrl+v” a bit too much. Large chunks of source material from Wikipedia and – to me more crucially – the website of the Royal Household were quoted, without attribution (and without indication that they were quotations) in a decision letter upholding the Royal Household’s refusal to disclose environmental information to tweeter @foimonkey.

Paul Gibbons – “FOIMan” – has blogged about this, and he wonders if this is evidence of a current lack of resources for the ICO. I think the ICO is under-resourced, and this is set to get worse but I’m not sure I agree with Paul that @FOIMonkey’s case illustrates this.

When Christopher Graham, the current Information Commissioner, was appointed, he inherited a damning backlog of FOI complaint cases, some going back several years. He stated openly that, to deal with this backlog, there might at times be a “silver standard” of investigation (as opposed to a gold one) from his office. True to his word, and much to his credit, the backlog has been greatly reduced, to the point where no cases were more than one year old, at the time of the publication of his last annual report.

So, I would agree with Paul, if @FOImonkey’s case was simply one of these “silver standard” ones, but that surely is not the case here. The refusal by the Royal Household to consider itself a public authority for the purposes of the Environmental Information Regulations 2004 was made over a year ago, and I understand the complaint to the ICO was made promptly after that. This means the ICO has had effectively twelve months to consider a request of considerable (if perhaps obscure) constitutional interest and significance. Even with limited resources twelve months is an awfully long time for a qualified solicitor and national Director of Freedom of Information to have to arrive at a decision.

I have a bigger concern though.

Paul is by no means uncritical of the ICO, and he notes that internal quality controls appear to be lacking, but he is perhaps not overly concerned with the act of copying itself (which could potentially be in breach of copyright):

I’m sure there are FOI out there who have copied chunks of the ICO’s decisions into their own FOI responses without citing them where it suited

However, I think the difference here is related to authority, and perception.

It is quite right for an FOI officer to quote ICO decisions in their own FOI responses (although I agree that citations should be given). Common law relies on a system of precedent and judicial authority, and, although the ICO is a regulator, and not a judicial body, the principle is similar: refer to and cite the authoritative statements of those who make decisions on the law in question.

However, the ICO is the one in a position of decision-making authority here, and to cite the website (without attribution) of one of the parties in a case he has to decide, gives rise to a perception of lack of independence, or bias. And that is an extremely important thing for a regulator to avoid doing.

As it is, most of the unattributed quotes are merely of uncontroversial statements of fact, and I am not sure they are clear evidence of any actual bias on the part of the ICO, but perception of bias is corrosive in itself. The classic test, as propounded by Lord Hope in Porter v Magill [2002] 2 AC 357, is

whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased

Maybe I’m not fair-minded (although I do consider myself reasonably informed) so I would have to invite other observers to say whether they would conclude there was a real possibility of bias in this case.

UPDATE: the ICO has now tweeted saying the failure to cite sources was an error. Fair enough, but I’m not sure that changes my views here.

3 Comments

Filed under Environmental Information Regulations, Freedom of Information, Information Commissioner, transparency

3 responses to “A Question of Apparent Bias?

  1. Imagine the withering contempt that the Commissioner would dismiss an FOI public authority that cobbled together its FOI requests from stuff they found on Wikipedia. I’m definitely not a fair minded observer, but I still say that the ICO has to show it can make the right decisions without taking three years to make them.

  2. I don’t think that the ICO has been biased in this case. I think that this was a genuine mistake and was done without the intention to mislead, but it does raise questions about the quality of their decision making processes.

    I was disappointed to learn that what had been presented as the considered opinion of the Information Commissioner was in fact the considered view of an unreferenced stub class Wikipedia article with a low quality rating, based on a misquoted extract from another primary source. I was even more disappointed because this had been signed off by the Deputy Information Commissioner. Their actions suggest to me that they may not have examined the factors in this case as thoroughly as I had hoped.

    In the interests of transparency, it is vitally important for any regulatory body to include proper citations for all sources that they wish to quote from in decision notices. This is particularly true when relying upon information obtained from the opposing party.

    I have asked for a fresh copy of their decision, this time with proper citations for third party material included.

    • I think I agree that there wasn’t *actual* bias. But the *perception* of bias can be as corrosive. For example, no one thought Lord Hoffmann’s connection to Amnesty showed actual bias when he sat in judgment on Pinochet’s extradition case, but the perception of bias was key.

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