Category Archives: access to information

October 20, 2024 · 10:02 am

The missing page about the missing PhD

[reposted from LinkedIn]

[EDIT: you win some, you get the wrong end of the stick on some. It was pointed out to me that the ICO removes items from its disclosure log after two years, which is why the document no longer shows up, and in the comments below I was taken to a copy of the document at WhatDoTheyKnow. Both these points have been confirmed to me in an FOI response from the ICO. What mislead me into thinking there was something more going on was probably the Tribunal’s reference to a “new policy”: it clearly wasn’t so much a policy, as a statement that the ICO would rely on s17(6) FOIA to refuse to reply to future requests, on the grounds that a vexatious campaign was being pursued.]

This is plain odd.

For several years the The London School of Economics and Political Science (LSE), and, consequently, the Information Commissioner’s Office has had to deal to with FOI requests about former Taiwanese president Tsai Ing-wen’s “missing PhD dissertation” (for some background, see here (I don’t vouch for its accuracy)).

A number of these requests have been refused on the grounds of vexatiousness, with many upheld on referral to the ICO.

The Information Tribunal has recently given judgment on one of these, and ruled in favour of the appellant, holding that the request was not vexatious. But what struck me was the fact that both the appellant and the ICO cited in evidence a page (a hosted pdf, going by the URL) on the ICO’s website. The judgment says this

The Appellant stated in his grounds of appeal that after he had complained to the Commissioner about the Authority’s response to the Request, the Commissioner published on the ICO’s website (by reference to a disclosure log) a new policy of not processing FOIA requests seeking information on President Tsai Ing-wen’s PhD.

But a footnote (screenshotted here) correctly notes that the link does not go to this page, and further, I can’t find any sign of it on the UK government web archive or the Wayback Machine. An advanced Google search on the ICO website throws no light.

So I’ve made an FOI request to the ICO, and will update when I get a response.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 21, 2024 · 10:32 am

Exempt from FOI? Hoyle say it is

[reposted from LinkedIn]

Although the Information Commissioner’s Office is tasked with enforcing the Freedom of Information Act 2000, the Act contains some provisions which have the effect of ousting the ICO’s jurisdiction. A little-seen one appears in a recent decision notice about a request to the House of Commons for information and correspondence in relation to events at the controversial Opposition Day Debate on 21 February 2024. Much of the controversy turned on the actions of the Speaker of the House, Sir Lindsay Hoyle, who later apologised.

Section 34 of FOIA creates an absolute exemption (i.e. not subject to a public interest test) if the exemption is required for the purpose of avoiding an infringement of the privileges of either House of Parliament. But section 34(3) goes further, and says that

A certificate signed by the appropriate authority certifying that exemption…is, or at any time was, required for the purpose of avoiding an infringement of the privileges of either House of Parliament shall be conclusive evidence of that fact.

Such a certificate closes things down: it is not open to the ICO (or a court) to say “we disagree – the exemption is not required to avoid informing the privilege of House Houses”.

All very interesting, and the decision notice is still worth reading, to see how it all works.

But, who, you might ask, is the “appropriate authority” who signed this certificate?

Well, dear friends, section 34(4) FOIA says that, when the privilege of the Commons is at issue, the appropriate authority is the Speaker of the House – a certain Sir Lindsay Hoyle MP.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 4, 2024 · 7:57 am

Gender critical beliefs not relevant in determining whether FOI request was vexatious

[reposted from LinkedIn]

The holding and expression of gender critical beliefs was not valid evidence for LNER to take into account in determining that an FOI request was vexatious.

Can a public authority take into account a requester’s public comments elsewhere, when considering whether a request is vexatious under s14 of the Freedom of Information Act 2000, in circumstances where the comments are expressions of a belief, the holding of which is a protected characteristic under the Equality Act 2010? The answer, says the Information Commissioner’s Office, in a well-argued decision notice, is “no” – however much the authority might disagree with the expressions.

The request was to London North East Railway (a company wholly owned by the Department for Transport), and therefore a public authority for the purposes of FOIA), and was for information about the process and costs of decorating a train in Pride colours, the processes for selecting train designs more generally and about plans for future designs.

LNER refused the request as vexatious, and justified this to the ICO on grounds including the content of social media posts by the requester

have demonstrated views that indicate a bias against transgender individuals, [that complying could lead to] harmful discourse and cause distress to our transgender employees and the people that the Pride train represents [and that the requester’s] focused questions on binary sex divisions and the specific targeting of a Pride-themed train…indicates a shift toward a disruptive agenda rather than an informational one.

In response, the requester

accepted that she had a binary view of sex, but…that this was a protected belief [citing Forstater v CGD]

LNER had therefore, in her view,

unlawfully discriminated against her because it had refused to provide information, that she would otherwise have been entitled to receive, due to her beliefs.

The ICO ruled that LNER had been entitled to take “a holistic view of the request” and nothing in principle had prevented it taking account of social media posts. However

the question of vexatiousness does not turn on what the complainant’s beliefs are, or are not. Nor whether she is, or is not, entitled to those beliefs

The question was “whether the request had a serious purpose and value” – here, it did – and whether that was outweighed by factors pointing towards vexatiousness. The ICO found that it was not:

the complainant’s motivation may well have a grounding in her beliefs, but the public authority has not demonstrated that she has made the request just to be disruptive, or just to target individual. Nor has it demonstrated that it would be subject to an unjustified burden if it were to respond to the present request

The right to information under FOIA is a species of the Article 10 ECHR right to receive and impart information. This is an important decision by the ICO on the extent of the right.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 2, 2024 · 3:49 pm

Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021)

I wrote recently about the fact that a judgment in the Upper Tribunal, which the Information Commissioner cites in guidance, was not publicly available anywhere. The ICO had refused to disclose it in response to a Freedom of Information Act request and suggested the requester ask for a copy directly from the Tribunal.

I don’t know if the requester did, but I thought it would be helpful to do so, and upload it here. (Kudos to the Tribunal for the swift, helpful reply.)

I’m also going to contact Bailii, and see if they might host a copy as well.

GIA-85-2021.pdfDownload

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 30, 2024 · 3:48 am

Pseudonymous FOI requests are not valid requests

[reposted from LinkedIn]

For a request for information under the Freedom of Information Act 2000 to be a valid one it must, under section 8, be in writing, describe the information requested and state “the name of the applicant” and an address for correspondence.

Does the name have to be the person’s real name?

“Yes”, says Judge Griffin (uncontroversially) when striking out an appeal to the First Tier Tribunal.

In the case, a person purporting to be “Simon Shannon” had made a (purported) request for information to the Civil Aviation Authority, which was partly refused, on the basis that the specific information was not held. “Simon Shannon” then made a (purported) complaint to the Information Commissioner’s Office who issued a (purported) decision notice upholding the refusal.

“Simon Shannon” then brought a (purported) appeal before the Tribunal. In his application he listed his address as “The Houses of Parliament”. This led the ICO to ask the Tribunal to direct that “Simon Shannon” give his real address. This then led to “Simon Shannon” applying to have the purported appeal struck out and for permission to lodge a new appeal in the name of Thomas Deacon – his real name.

The problem with this was, the judge pointed out, that as s8 FOIA requires that a request state “the” name of the applicant, rather than “a” name, this means that a pseudonym will not suffice, and a request made in the name of a pseudonym, as had been the case with “Simon Shannon”, was not a valid request. And there is a reason this matters:

“When an applicant uses a pseudonym to make a request to a public authority
that authority is deprived of the opportunity to consider whether those parts
of the Act [such as when considering whether requests are vexatious, or whether aggregated costs of two or more requests exceed the appropriate limit] to which the applicant’s identity is relevant apply to the request.”

It followed that, as the request was not a valid request, the ICO “unknown to him, had no power to consider a complaint under section 50 of the Act, nor to issue a decision notice”. And it further followed that the Tribunal had no jurisdiction – it could not simply permit the appeal to be remade in the person’s real name, because there was no ICO decision capable of being appealed.

None of this is especially new to FOI practitioners and lawyers, but the judgment is a clear and helpful explainer of the issues.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 26, 2024 · 8:00 am

Closed justice and the EIR

[reposted from LinkedIn]

The Upper Tribunal is an appellate court: its judgments create precedent, under the doctrine of stare decisis. For that reason, one might think that all of its judgments would be published – particularly ones that are cited by a regulator in its guidance. But that’s not the case.

The Information Commissioner’s Office (ICO) refers to an Upper Tribunal judgment – Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021) – in its guidance on the Environmental Information Regulations, but the judgment has never been openly published online (it’s possible one of the various paid-for online legal libraries has it – I haven’t checked).

The lack of easy access to judgments and other court documents in general (not just those in the Upper Tribunal) is one that has understandably exercised people for a number of years. Things have got much better in recent years, and the work of BAILII (British and Irish Legal Information Institute) and of people like Lucy Reed KC, Judith Townend and Paul Magrath at The Transparency Project has been key in advancing this core constituent of the principle of open justice. But there are still huge amounts of case law which are not readily available to the public.

For this reason I was struck by the ICO’s response to an FOI request for a copy of the judgment that they rely on to justify their own approach to the law. They point out to the requester that the only copy of the judgment they hold is a signed one from the court, and that it was “not intended for publication or wider disclosure”. They refuse to disclose it in reliance on the absolute exemption at section 32 of the Freedom of Information Act 2000 (FOIA) for information created by a court. What they don’t consider is – despite there being an exemption engaged – whether to exercise their discretion not to rely on it. In the circumstances, this would seem an obvious thing to do.

In fact, as the judgment is about the Environmental Information Regulations 2004, and it is used by the ICO to support its guidance on those regulations, it seems clear that the ICO should have dealt with the request also under the regulations. As they do not have an equivalent exemption to section 32 of FOIA, I cannot see the grounds for non-disclosure.

Instead, they suggest the requester asks for a copy from the Tribunal directly. Much better, and public-spirited, I would have thought – if they felt they shouldn’t or couldn’t directly disclose – would have been for the ICO to seek the permission of the Tribunal to disclose (or even better, to nudge the Tribunal to get it uploaded at https://www.gov.uk/administrative-appeals-tribunal-decisions).

The upshot of all this is that – regardless of whether the original requester does so – I’m going to contact the Upper Tribunal to ask for a copy, and when I get it, I’ll upload it to my personal blog. But I’m not convinced that’s really how open justice should operate.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 25, 2024 · 8:47 am

Manifestly EIR

[reposted from LinkedIn]

I’m dumbfounded how a public authority, all of the staff at the Information Commissioner’s Office – including its litigation lawyers – and the three people hearing the appeal in the Information Tribunal, failed to identify that this request clearly should have been handled under the Environmental Information Regulations 2004 and not the Freedom of Information Act 2000 – it’s about land use, a boundary dispute and planning. The ICO decision notice even states that “it relates to the status of the Council’s land adjacent to the complainant’s property”.

It may be that, on analysis, the request – which was refused on the grounds that it was vexatious – a decision with which both the ICO and Tribunal agreed – would have been considered manifestly unreasonable under the EIR, but that is no excuse. The refusal was wrong as a matter of law, the ICO decision notice is wrong as a matter of law, and the Tribunal judgment is wrong as a matter of law.

I have raised this issue before of public authorities, ICO and the Tribunal failing to deal with requests under the correct regime. I’m now minded to raise the issue formally with, at least, the ICO.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 8, 2024 · 5:09 am

Blistering criticism for Home Office and ICO

[From a LinkedIn post]

A blistering judgment of the Information Tribunal upholding an FOI appeal by Bail for Immigration Detainees (BID) against the decision by the Information Commissioner’s Office (ICO) to uphold the Home Office’s refusal to disclose info about the process for deportation to Eritrea and Somalia (and by extension, the likelihood of deportees being either detained, or bailed, pending removal).

The request, about how many Emergency Travel Documents were requested, how many issued, how many people were then removed and how long this took, was refused by the HO on grounds that disclosure would be likely to harm international relations and would prejudice the operation of immigration controls.

The HO failed to reply to the ICO’s enquiries until served with a formal Information Notice. But the ICO then agreed that the exemptions were engaged.

The Tribunal did not agree.

The judgment notes the HO “made no effort to engage” with the appeals, and its evidence consisted of “thinly reasoned assertions, with no evidential support”, and

…we hope that the reasons were not meant to be comprehensive. It would betray a rather dim view by the Home Office of other countries’ governments to think that “many if not most” only care about money, and whether their citizens commit crimes or migrate unlawfully – as humans from all countries do.

To the extent the FOIA exemptions were engaged, the public interest test fell heavily in favour of disclosure. In the face of evidence from BID about levels of unlawful detention (in the form of the number of cases in which it had successfully appealed refusals of bail for detainees) the Tribunal observed that

For hundreds of years, the common law has demanded that administrative detention must be justified and be capable of proper challenge…The work done by BID, both on behalf of individuals and more broadly, supports that public interest. Disclosure…would help it to achieve those ends and avoid injustice.

There were minimal factors in favour of disclosure. In fact “it is difficult to conceive of a case concerning this exemption where the scales could be less weighted in favour of exemption”.

And, in closing, the Tribunal had a blast at the ICO, noting

our surprise that [he] thought it appropriate to accept the [HO’s] bare assertions, given the way in which it had responded to the previous requests described above and the compulsion required before it then properly engaged with these. In turn the…Decision Notices disclose no consideration of the various public interest factors carefully put forward by BID. A pattern of conduct has been established on the part of the [HO] that is within neither the spirit nor the letter of FOIA, and which can now be seen as having resulted in considerable delay together with expense of resources both on the part of the Tribunal and BID…We hope that future decisions will be reached after considerably more care and scrutiny.

Let’s see.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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July 12, 2024 · 7:05 am

Unreasonably accessible – ICO and misapplication of s21?

I’ll start with a simple proposition: if a dataset is made publicly available online by a public authority, but some information on it is withheld – by a deliberate decision – from publication, then the total dataset is not reasonably accessible to someone making an FOI request for information from it.

I doubt that any FOI practitioners or lawyers would disagree.

Well, sit back and let me tell you a story.

In November 2023 the Information Commissioner’s Office (ICO) refused to disclose information in response to a Freedom of Information request, on the grounds that the exemption at section 21 of the Freedom of Information Act 2000 (FOIA) applied: the information was “reasonably accessible to the applicant” without his needing to make a FOIA request.

The request was, in essence, for “a list…of the names of all the UK parish councils that have received 20 or more ICO Decision Notices (for FOIA cases only) since 1st January 2014”. The refusal by the ICO was on the basis that

the search function on the decision notice section of the ICO website returned 415 decision notices falling within the scope of the complainant’s request…[therefore] it is possible to place the names of the parish councils into an Excel sheet and then establish quickly how many decision notices relate to each individual parish council.

The ICO noted that, when it comes to the application of section 21

It is reasonable for a public authority to assume that information is reasonably accessible to the applicant as a member of the general public until it becomes aware of any particular circumstances or evidence to the contrary [emphasis added]

On appeal to the Information Tribunal, the ICO maintained reliance on the exemption, saying that all the applicant needed to do was to go to the ICO website and “look at each entry and count-up [sic] the numbers of [Decision Notices] against each parish council”. The Tribunal agreed: the ICO had provided the requester

with a link to the correct page of the ICO website, and instructing him how to use the search function. These instructions have enabled him to identify from the tens of thousands of published decision notices those 415-420 notices which have been issued to parish councils over the past decade or so

All straightforward, if one’s analysis is predicated on an assumption that the ICO’s public Decision Notice database is a complete record of all decision notices.

But it isn’t.

I made an FOI request of my own to the ICO; for how many Decision Notices do not appear on the database. And the answer is 45. A number of possible reasons are given (such as that sensitive information was involved, or that there was agreement by the parties not to publish). But the point is stark: the Decision Notice database is not a complete record of all Decision Notices issued. And I do not see how it is possible for the ICO to rely on section 21 FOIA in circumstances like those in this case. It is plainly the case that the ICO knew (or was likely reckless in not knowing) that there were “particular circumstances or evidence” which showed that the information could not have been reasonably accessible to the applicant.

Of course, it is quite likely (perhaps inevitable) that the 45 unpublished Decision Notices would make no difference at all to a calculation of how many UK parish councils have received 20 or more Decision Notices since 1st January 2014. But that really isn’t the point. The ICO could have come clean – could have done the search itself and added in the 45 unpublished notices. It knew they existed, but for some reason thought it didn’t matter.

The ICO is the regulator of FOIA, as well as being a public authority itself under FOIA. It has to get these things right. Otherwise, why should any other public authority feel the need to comply?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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July 6, 2024 · 10:45 am

FOI and government/ministerial WhatsApps

[reposted from LinkedIn]

An important Information Tribunal (T) judgment on a FOIA request, by Times journalist George Greenwood, to DHSC for gov-related correspondence between Matt Hancock (MH) and Gina Coladangelo (GC), grappling with issues regarding modern messaging methods in government and how they fit into the FOIA scheme.

Two requests were made. The first was for government-related correspondence between MH and GC using departmental email accounts, and any private email account MH had used for government business. The second was for all correspondence between them using other methods, such as WhatsApp.

Request 1

DHSC had found four emails and by the time of the hearing had disclosed them. It maintained that no further info was held.

However DHSC argued that emails sent by MH’s private secretaries and not by MH himself were out of scope. Not so, said the T: “even if a private office email account is operated by a private secretary…correspondence with a private office email account ought to be regarded as correspondence with the relevant minister”. Accordingly, they upheld that part of the appeal and ordered further searches.

Request 2

DHSC had initially said, and ICO had agreed(!), that government-related WhatsApp messages sent from MH’s personal device were not “held” for the purposes of FOIA because they were not held “as part of the official record”. By the time of the hearing, all of the parties were agreed that this was an error, and the T ruled that section 3(2)(b) FOIA applied, and that “WhatsApp messages from Mr Hancock’s personal device were held [by MH] on a computer system on [DHSC’s] behalf”.

DHSC then sought to argue that WhatsApp messages in a group were not “correspondence” between MH and GC, saying (in the T’s formulation of DHSC’s argument) “unless correspondence consists of one person corresponding directly with another, it is not ‘true’ correspondence”. The T was dismissive of this: “correspondence in the age of multiple methods of electronic communication can take different forms…the fact that simply because one or other of the relevant parties did not respond or may not have responded to a particular message does not mean that communications within a WhatsApp group cannot be considered to be correspondence”. The T also rejected the related submission that a person posting a message to a WhatsApp group is “broadcasting”, rather than “corresponding”

(I have to say that I think the T probably overstepped here. I would tend to think that whether information in a WhatsApp group is correspondence or not should be determined on the facts, and not as a matter of general principle.)

Finally, the T did not warm to the evidence from an otherwise unidentified “Mr Harris” for the DHSC, to the effect that the request was vexatious on grounds of the burden. They therefore held that it was not. (As the messages were subsequently disclosed into the public domain during the Covid inquiry, not much turns on this.)

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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