The slings and arrows of FOI

“…investigation by and even adverse comment from the Ombudsman is one of the slings and arrows of local government misfortune with which broad shouldered officials have to cope…” (Feld v London Borough of Barnet [2004] EWCA Civ 1307)

Ombudsmen loom over the actions of many public authorities. Particularly, the NHS and local authorities are subject to the scrutiny of respectively, the Parliamentary and Health Service Ombudsman (PHSO), and the Local Government Ombudsman (LGO). The Ombudsmen themselves must have broad shoulders, subject as they are to the oversight of both parliament, and, because they are public authorities subject to the Freedom of Information Act 2000 (FOIA), the Information Commissioner’s Office (ICO).

The PHSO was recently asked, under FOIA, for the email address and telephone number of the Ombudsman herself, Dame Julie Mellor. The request was refused, on the basis of the exemption at section 40(2) of FOIA – namely that the requested information was Dame Julie’s personal data, and disclosure would breach the first data protection principle in the Data Protection Act 1998. This refusal has now been upheld by the ICO, in a decision notice which explains that

the data requested relates to a living individual who may be identified from that data and that [therefore] it constitutes personal data

That much is uncontroversial: a person’s email address and telephone number will generally be held to be their personal data, even in a professional context, providing that they can be identified from that data. However, the ICO goes on to say

the Commissioner considers that the Ombudsman would have a reasonable expectation that her email address and direct telephone number would not be placed into the public domain by disclosure under the FOIA…

…The Commissioner is aware that the requested email address and telephone number are personal to the Ombudsman but are professional contact details. He considers that their disclosure is unlikely to cause the Ombudsman distress on a personal level. However the Commissioner is satisfied that disclosure would disrupt the running of the organisation and it is apparent that the consequences would have a negative impact upon the PHSO

This seems to conflate two quite separate issues – personal privacy, and organisational impact. As far as I can understand it the argument is that, because this is personal data, and because disclosure would disrupt the running of the organisation, disclosure would not be “fair”, in line with the requirements of the first data protection principle. But, as the ICO’s own guidance on disclosure of personal data under FOIA explains (paragraph 44), the consequences to be taken into account are those to the data subject, not to their organisation, or a third party.

If disclosure of information would disrupt the running of a public authority, there are other, more appropriate FOIA exemptions which might apply. Specifically, section 36(2)(c), for situations where disclosure would prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

But even then I struggle to see how disclosure of such innocuous information would really cause sufficient prejudice to warrant keeping this information secret – shouldn’t the Ombudsman be able to implement systems to deal with a possible increase in emails and calls if the email address and phone number were made public? Isn’t this sort of potential irritation one of the slings and arrows of administrative misfortune with which broad shouldered officials have to cope?

(As a footnote to this piece, neither the section 40(2), nor the section 36(2)(c) are going to carry much weight when the information is readily available online already. I will not link to it, because I’m a cautious soul, but Dame Julie’s email address, at least, has been published on the internet as part of a document created by her, and hosted by a reputable academic institution.)

 

 

 

17 Comments

Filed under Data Protection, Freedom of Information, Information Commissioner, ombudsman, transparency

17 responses to “The slings and arrows of FOI

  1. Jt oakley

    Stand in line..

    ….There are loads of disgruntled complainants trying to find out how to contact Dame Julie Mellor ..simply because the PHSO review team seems to have been blocking complaints about its’s handling of cases.

    It’s senior officers also don’t speak to the public. Letters and emails were mostly ignored as the review team had ‘spoken’ and that was it,

    So how anyone could get a fair investigation if a complaint against the review team, without contacting senior officers – was a mystery,

    :::
    Dame Julie’s emails now go to her executive office.

    Which actually receipts emails. ..which I sure you will agree is unheard of in certain ‘blocking’ parts of the PHSO.

    ::::

    As I may have to attend a DN ICO tribunal on this very point, many thanks for your guidance.

    ,..and yes, I got the address via another source.

    So it enabled he to fight my case against the review team’s mishandling of my case ….with the result that Dame Julie Mellor upheld it.

    But having been declared vexatious for asking for contact points ( the PHSO was reorganising at the time) it’s left the PHSO FoI team in a bit if a quandary, as apparently as my case was ‘futile’ I was ‘obsessive’ and ‘harassing’ staff. Nice bit of pre-judgement,which went wrong.

    Unfortunately Dame Julie Mellor’s apology ( and the possible compensation mentioned in the report for my distress over the year it took me to get my complaint about the review team investigated ) has rather undercut the argument that I was ‘vexatious’ in trying to further my complaint.

    I cannot understand why you can obtain the email addresses of captains of industry but government officials – supposedly wishfully alert to public opinion – want to shut themselves off. Not transparent or open.

    And as for candour..Pffft.

  2. As the email address is in the public domain, the decision by both the PHSO and the ICO is bizarre. It’s always worth Googling little details like this to ensure that a refusal isn’t silly.

    However, I think an organisation should be able to decide what its points of contact should be. The head of an organisation should not get involved in individual cases unless as a last resort, and when the organisation thinks it is necessary. Disclosing an otherwise unavailable email address will only encourage complainants to by-pass the people who are paid to deal with their complaints (i.e. the people who know what they’re doing) and go straight to the top (i.e. a person paid to look at the big picture, and probably less qualified to make decisions about individual cases). In most organisations, a complaint to the top will inevitably be sent straight back down anyway, so where’s the accountability?

    • I agree, but exempting on the basis that it’s personal data and disclosure would be unfair because of disruption to the organisation seems to me to seriously misunderstand what data protection is about. Use s14 or s36 instead.

    • Jt Oakley

      Having worked for seven chief executives and six chairmen, I can tell you that they have ‘people’ already employed to answer enquires sent to them.

      Usually people, who work in public relations, (as I used to do) draft the answers and the CEO signs the reply..so they read it and sometimes change it.

      So the massive disruption argument is out.

      In fact, if an organisation is functioning as it should, with employees doing their jobs well – and robustly, there shouldn’t be much correspondence to CEO’s.

      The thing to know about organisations is that it is in every senior employee’s interests to tell the CEO that he/she is managing everything wonderfully ….and that there are no problems. So the CEO has no idea if what is going wrong. If a lot of ‘customers’ write to the CEO, then it’s an indication that there are serious problems, which the CEO should know about.

      A good CEO will want to put this right by solving them.

      In general, communications passed downwards are dealt with, rather than remaining filed under ‘ C …..for Case closed -push off’ by middle-ranking employees, who may not be up to the job. Or want to cover up their inadequacies.

      In my experience, it’s about 80-20. CEO complainants almost always have a fair point….somewhere in thei complaint.. If they don’t, it is usually based on a misunderstanding.

      So communications to the CEO are – using the expression used about complaints in the PHSO..’goldust’.

      :::::

      The ombudsman is a slightly different case, as she is supposed to be independent. And above the human fray. But the system being run was one where one individual could decide on whether or not cases would be robustly investigated. And was possibly failing ( from other anecdotal evidence) to read cases… At least she did in my case.

      You might like to know the perspective. The ombudsman fails to fully investigate 98.6 percent of cases. And turned down case requests from complainants to investigate both the Mid-Staffs deaths and Morecambe Bay baby deaths,

      But, logically, if an organisation determining public complaints , cannot
      provide a proper system for complainants to complain about its own services, and they are forced to write to the ombudsman to obtain a fair investigation of their case, it’s an indicator of supreme hypocrisy.

      :::::
      The argument that it should be left to the professionals..

      * If you want to know how it’s professional FOI team is currently functioning,
      Perhaps you might like to read this:

      https://www.whatdotheyknow.com/request/profiling_of_wdtk_complainants#comment-49612

      Because their job descriptions now seem to extend to spying on requestors and playing politics.

      Ps. *To be fair to the FoI team, they provided an initial complaint inlet, which enabled me to complain about the case handling mistake. So there are some ‘good guys’ on that team.

  3. Perhaps there is the disruption to the individual, as well as the organisation, which could be unfair?

  4. Why doesn’t Dame Julie Mellor – or anyone else – have an official e-mail address (a a public duty) in the public domain and a private e-mail address as secret as she wishes?

  5. Having been on the receiving of the phone dropping techniques and ignorals of communications, and even having been called “very stupid” by one person in the review team; my take is it is very much a THEM AND US situation.In other words we are seen as nuisances , there to be trodden down and reduced to malable pulp. If l had to sum up the way all these matters are handled , l would say with extreme low-cunning . Complaints are ways of signifying when issues are not being addressed, but we are all left to believe we are whinging troublemakers. So when approaching to lodge complaints, be prepared to be painted as someone that is unreasonable and repetitious. It is a certainty there is no impartiality and that no unwanted results are forthcoming , accross the whole board.

  6. How’s this for ‘innocuous’? … a total figure in public money e.g. £123.456.78p – most of it paid to thugs who’d set about and bullied disabled employees; the remainder paid to buy the silence of the same disabled employees and prevent them from bringing bullying claims against the employer. The overriding reason for doing it being to protect and manage the reputation of Herefordshire Council, the employer.

    The excuse given by the council was that disclosing the total figure would risk identifying the persons involved. The ICO backed Herefordshire Council on appeal.

    1. Council declares a total figure of £123.456.78p (and nothing more)
    2. (Mysterious process)
    3. One or more persons are identified

    Can a bright spark please explain the mysterious process at 2. ? many thanks in advance…………………….:)

    • It’s an inevitable oddity of FOI that sometimes a requester can’t be told the full details which explain why an exemption applies. Paragraph 12 of the ICO decision in the case you refer to (http://ico.org.uk/~/media/documents/decisionnotices/2014/fs_50531217.ashx) makes clear that the ICO, after seeing the withheld information and confidential submissions from the Council, was satisfied it relates to identifiable individuals.

      One bulwark against this oddity is that appeals to the Information Tribunal are free: are you going to appeal?

      • Sorry – I realise this must be the same case we discussed on Twitter where you chose not to appeal. The Tribunal could have done what you can’t, and see whether the withheld information and confidential annex justified the use of the exemption. In the absence of an appeal we’ll never know. Shame.

  7. ‘Chose not to appeal’. You couldn’t be more wrong.

    I would have appealed if there weren’t compelling reasons not to. If I had appealed, the disabled employees were fearful that they would come in for more thuggery directed right at them, and potentially the loss of their livelihoods. So with that threat hanging over them, they requested that I take it no further. I obliged.

    As for this notion that something ‘accidental’ is going on, in that the Act has “oddities”, well this one works very much in favour of those who seek to browbeat and intimidate people at all costs in order to pull a blanket across malpractice or abuse and get their own way.

    They’ve won because the ICO *chose* to lay down and let them. A six figure sum has been laid out, but the public won’t get to know how much because the bullies of disabled people appear to hold sway. Shame.

    Are there any similar ‘oddities’ that work in favour of requesters and the public interest, or have these avenues of opportunity all been closed down by now?

    • I honestly don’t get it Paul. If the people involved are fearful, why do you keep resurrecting the story, and making more FOI requests etc? If appealing to the Tribunal would lead to thuggery being directed at them, why wouldn’t having an article run in Private Eye?

      As for the “oddity”, it is intrinsic to challenges to all the exemptions in FOIA: if a public authority relies on an exemption in not disclosing information, and the applicant challenges that, then the ICO is going to a) need to see the withheld information, and b) in a large number of cases, receive further information from the public authority which would also be exempt, in support of their case. In neither of those cases can the applicant see the information, because to do so would be to defeat the reason for applying the exemption in the first place. The issue of closed hearings (or parts of hearings) and closed information has recently been considered in detail in the Court of Appeal, in Browning v ICO.

      Please note that I am merely commenting on the law and its application. I don’t purport to know about, or have the knowledge to comment about, the underlying cases in this issue.

  8. A helpful link to this subject being discussed by local Herefordshire council tax payers is here:

    http://www.herefordvoice.co.uk/topic/1457-decision-notice-the-bullying-of-disabled-council-staff/

    And our Twitter discussion is here:

  9. Bobby Fortyseven

    Well, I get it. I completely get it. In fact, I pretty much got it straight away and it’s this, the entire ‘getting it’ thing that keeps Cardin and many like him to press their shoulder to the wheel and push this bag of rats up the hill.
    The victims of this particular thread, that relate to Hereford Council, whilst frightened by their experiences at the hands of the bully, they want Cardin to keep pushing. They’re in no position to do this work and as painful as it is for them they are not in the least bit concerned that this matter is constantly been brought out into the light and having the entire sad chain of events discussed and scrutinised by outsiders like us.
    I say, keep going Cardin. Poke them with a stick and when they no longer react to the constant poking and prodding with the stick, get a bigger stick and poke them some more.

    • I understand that. I don’t understand why no appeal, therefore, was lodged with the Information Tribunal. If Paul and others wanted the information, and the ICO had said “no”, then the only way it could be challenged was by way of appeal.

  10. Jatroa

    I can only say that it’s well worth it in taking your request to a Tribunal.

    You might actually get some sense.

    My request about the PHSO’s executive office was vexed on the grounds that I was asking for ‘All employees names,work posts and phone numbers’…..as if.

    The PHSO also drew up the Dransfield case stating that I was making the request.. Basically out of pique..( you know the word form) because I lost my case with the PHSO. My case was ‘ futile’.

    (That would be the ‘futile’ case that was still ongoing and which I won …two months later, with an apology from the Dame and compensation mooted)

    The Tribunal members huddled and took about five minutes to declare that I’d won my appeal …and so the request was unvexed.

    It’s my opinion that the over-eager PHSO used the recent Dransfield case just to have a go at vexing someone. Pity that, in their haste, they didn’t check the terms.

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