Category Archives: transparency

April 2, 2013 · 11:33 am

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.

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

March 13, 2013 · 8:25 am

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 “Govegate” imbroglio 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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March 8, 2013 · 1:10 pm

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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November 23, 2012 · 1:35 pm

Tweets and Tw*ts, redux

NOTHING TO SEE HERE, MOVE ALONG.

UPDATE: 13 December 2012

In a tweet to me of 5 December the ICO kindly clarified that there has been no change. The reference to twitter names is now contained in this guidance.

Has there been a subtle change of policy by the ICO on the subject of FOI requests made by twitter?

Last year I blogged about a Freedom of Information Act 2000 (FOIA) request I made to the Information Commissioner’s Office (ICO) via twitter. I referred the ICO to their own guidance (hosted as part of a web page, not as a separate download), which said

The request must state the name of the applicant…A Twitter name may not be the requester’s real name, but the real name may be shown in their linked profile…The request must also state an address ‘for correspondence’. Does this include Twitter names? The length of a tweet makes it difficult for the authority to respond fully, but there are ways of dealing with this. The authority could ask the requester for an email address in order to provide a full response. Alternatively, it could publish the requested information, or a refusal notice, on its website and tweet a link to that.

The question I have given emphasis there did not have a specific answer in the guidance, but one inferred that the answer was “yes” from the words that followed.

This morning I made a twitter FOIA request to the Department for Education, to which they replied asking me to provide an email address or fill in an online form. I was going to refer them to the ICO’s guidance, but found that it doesn’t exist anymore. Fair enough: websites change and URLs get broken. However, unless I am mistaken what I have also found is that the ICO no longer seems to imply that a twitter name is an address for correspondence, according to section 8(1)(b) of FOIA. As far as my search skills can ascertain, the ICO now says

Requests can also be made via the web, or even on social networking sites such as Facebook or Twitter if your public authority uses these…[the request must] include an address for correspondence. This need not be the person’s residential or work address – it can be any address at which you can write to them, including a postal address or email address

No reference there to twitter names. More detailed guidance from the ICO says

Where a request has request in line with section 8(1) of FOIA if the requester has provided their name and a valid address. Where possible a response to the requester should be sent for example by providing a web link. If the name or address is not provided it is not a valid request, therefore if information is not being provided a reply should be sent advising the requester of this, and asking for the required information.

Again, no reference to twitter names.

These changes, unless I have indeed missed something, with their absence of reference to the possibility of a twitter name being “an address for correspondence” indicate a retreat by the ICO. It could well be that they’ve had to acknowledge that twitter is perhaps not the most appropriate medium for FOIA requests. If so, it would be helpful if they could – clearly – issue revised guidance. Their announcement that requests could be made by twitter got a lot of coverage, and led to the highest court in the land accepting that it had been wrong to imply it would not consider them valid requests.

I’ve made a FOIA request to the ICO to find out whether their policy has changed. Guess which medium I used?

UPDATE: 13 December 2012

In a tweet to me of 5 December the ICO kindly clarified that there has been no change. The reference to twitter names is now contained in this guidance.

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February 10, 2012 · 2:30 pm

Transparent as mud

Our Prime Minister is committed to transparency in government. In June 2010 he set up a Public Sector Transparency Board containing some of the great and good in the field of open data and transparency: you’d struggle to pick better people than Tom Steinberg, Nigel Shadbolt, Rufus Pollock and Tim Berners-Lee (I’m not hyperlinking him – if you don’t know who he is then find out who invented hyperlinks). The Board is chaired by Francis Maude, Minister for the Cabinet Office, who has written – at the same time as he was lambasting Tony Blair’s dispiriting comments on freedom of information –  that

If I ever sit down to write my own memoirs, freeing up government information will not number amongst my regrets. In fact, I very much hope that it will be one of my very proudest achievements.

Mr Cameron seems to feel the same way:

In the years to come, people will look back at the days when government kept all its data – your data – in vaults and think how strange it was that the taxpayers – the people who actually own all this – were locked out.

Now, it so happens that there has been, in recent months, much debate about whether – or rather, to what extent – private emails written by those connected with the Department for Education are “caught” by the Freedom of Information Act 2000 (FOIA).  (Read the BBC’s Martin Rosenbaum and the Financial Times’ Chris Cook on this, I insist). The Information Commissioner has been very clear that his view is that information concerning official business held in private email accounts is subject to FOIA (he’s right, by the way) but Michael Gove, Secretary of State for Education, told the House of Commons Education Select Committee that

The advice that we had received from the Cabinet Office was that anything that was held on private email accounts was not subject to Freedom of Information requests.

So, when, Lisa Nandy, MP for Wigan, tabled a question in parliament on 6 February asking if the Cabinet Office would publish

guidance on private emails and the Freedom of Information Act referred to in the Education Select Committee evidence session of 31 January 2012 as having been issued to the Department for Education.

It was, let’s say, not very encouraging for those of us who support the “transparency agenda” (as it seems it must be called) that she received the following response

Information relating to internal discussion and advice is not normally disclosed

Yep. That’s right – internal information about how a goverment department handles requests under FOIA, is not to be disclosed.

It might be thought odd, or interesting, or both, that the minister who replied to Ms Nandy was Francis Maude, MP. I’ll leave you to write your own jokes.

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