Help!

Help. I’m surfacing from a self-imposed blogging curfew in an attempt to see if anybody out there in the cyberworld can offer me any words or advice or assistance in relation to an Information Tribunal I have become embroiled in.

The public authority in the case is the Health and Social Care Information Centre (HSCIC). It would appear its purpose is to collate all data from the NHS and is responsible for publications on almost everything statistics-based that comes out of the NHS.

Since FoI came in I’ve had limited success getting information from them and finally we seem set to lock horns in an Information Tribunal next week (December 18).

The crux of the issue is can they refuse me the information I seek by applying a S.21 (information reasonably accessible by other means) exemption saying that I can have the data if I pay for it – the price they have quoted me is £1,550.

As I said the issue has a long history and initially in the Information Commissioner’s Decision Notice [FS50420295] the data was refused me on the basis that it wasn’t held by the HSCIC. After my notice of appeal to the Tribunal Notice of Appeal (IR 2012)] the Information Commissioner backed down and said he agreed it was held but that it was now exempt under S.21.

The HSCIC does state on its publication scheme that if you want a tailor-made report then it will cost and they publish a summary of these fees – but can £1,550 really mean that it is “reasonably accessible”.

In my skeleton argument to the Tribunal I have tried to compare the HSCIC with other organisations (The Office of National Statistics, The Ministry of Justice, The Department of Work and Pensions) that hold huge databases but don’t charge people under FoI if they want to “cut and slice” it in a particular way that hasn’t been done before.

For your information the question I asked was an update to a Parliamentary Written Answer about drug-addicted babies [Drug dependent babies] and [Drug dependent mothers]

My concern is that if my appeal fails it opens up a trap-door in FoI that other organisations will be able to exploit to avoid having to answer questions that they feel will put them to too much work.

I’m up against two barristers – the Information Commissioner and the HSCIC will have one – so any e-mailed advice or assistance in the case would be much appreciated.

What is the “public interest”?

Look into my eyes...look into my eyes

What is in the public interest has always been something of a thorny issue, especially when it comes to its use in Freedom of Information.

Personally I say thank the Lords (because apparently it was the House of Lords which decided to put the public interest test into FoI) that we have this weapon to set about the Qualified exemptions.

At the moment I’m involved in two disputes over information at opposite ends of the spectrum, but both hinge on the public interest test.

The first involves the Cabinet Office and its refusal to reveal documents written by our ex Prime Minister Tony Blair that were sent to George Bush.

These notes are central to the Iraq inquiry, whose head Sir John Chilcot asked to make the documents public, and when this was refused said the decision was “disappointing”.

The crux of these documents is whether they confirm the belief among many people that Tony Blair gave his word to the US President that British troops would join the war, before Parliament voted on the issue.

You can see the history of this request at WhatDoTheyKnow [here], and I’ve blogged about this in the past [here]. The information has been denied me on the basis S.35 (formulation of Government policy), S.36 (prejudice to the effective conduct of public affairs) and S.27 (international relations).

Were our troops sent to war just because Blair had “promised”? Could there be a clearer public interest? The case is now in the hands of the Information Commissioner.

Headmaster Vic Goddard flicks the Vs at his deputy head. Mr Chips he is not.

At the other end of the scale some of you may have been watching #EducatingEssex, a horrific fly-on-the-wall documentary about a school in Harlow.

I watch the show goggle-eyed at the way the show profiteers from seeing children taken into care, getting involved in scrapes with the police, getting pregnant, abusing teachers.

We are at the end of the series next week and ironically we have seen precious little educating of the Essex populous.

As a journalist I have to tread incredibly carefully if I do a story that identifies a child, particularly if it is something to do with their schooling – but this programme seems to have side-swerved the regulations in exchange for children grabbing their five minutes of fame. Responsible journalism? I think not.

So I wanted to know how much the documentary company paid the school for the privilege of being allowed into the school.

Surprise, surprise, they will not tell me. You can see the full response to my questions [Passmores1]. But they have applied the S.43 (commercial interests) exemption, and yes you’ve guessed it the public interest is not to disclose the amount.

Amazing that the public interest is in knowing which of his students are pregnant at 15, which of them get taken into care, which of them run away from home – but not how much the school got paid for selling off the pupils’ private lives for the amusement of viewers.

I’ve appealed this back to the headmaster Vic Goddard – a man who on the show seems to insist in empathising with errant schoolchildren by calling them “mate”. I suspect this case will run and run.

NOTE: Apologies for being away for so long.

Come Fly Away With Me (Part II)

Sir High, former Chief Constable of the Police Service of Northern Ireland

The row that centres on a Freedom of Information request around the free flights job perk offered to Sir Hugh Orde looks set to run and run.

To recap, the PSNI were forced to disclose – against Sir Hugh’s wishes – what sort of arrangement was in place to fund flights for his family.

This disclosure [link] reveals Sir Hugh had it written into his contract that members of his family were entitled to free flights paid for by the PSNI.

However, according to the documents released Sir Hugh, who successfully sued a newspaper over freebie flight allegations, agreed at some point during his tenure to repay 50% of the cost.

Of course the disclosure that his family were allowed free flights has sparked the obviously follow-up question of how much those flights had cost, and what exactly was the agreement within his contract of employment.

A member of the Northern Ireland assembly is already asking questions [link]. So I’ve asked the question here [link].

Sir Hugh, is now President of the Association of Chief Police Officers, an organisation which is expected to be admitted into the FoI regime in the not too distant future.

You can see my previous post on the topic here [link]. I can see this ending up at a Tribunal.

An eye for an eye

Remember to tick all the right boxes.

Some of you may have seen that the people in charge of the transplant organ database have managed to get themselves into trouble with the Information Commissioner recently.

As I was involved in a long dispute over the contents of a report into a botched organ transplant, the fact that the organ donor database was shown to be less than 100% didn’t come as much surprise to me.

The organisation in question – NHS Blood and Transplant (NHSBT) – look after the donor register, so that if a person dies it can sanction the use of organs from those that have passed away.

Those of you, who like me, have ever filled in the Donor Registration form, will know that there is a section where you can either hand over 100% of yourself or you can opt for the a la carte option where you say you can have my heart but not my liver (one careful owner).

Well it would appear that in more than 400,000 cases the NHSBT has managed to mangle up its database so that people who thought they were keeping their corneas and such like found they were recorded as being up for grabs.

How this discrepancy in the database was established hasn’t been fully explained although the NHSBT has been told to go back and sort out the mess. You can see the undertaking [here].

Why am I bothered about all this? Well years ago I established from the NHSBT that there were two occasions when a patient had an organ transplanted into their body only to find out that due to a clerical mix up it didn’t match their blood group.

I got hold of the report into one of these incidents and when I wrote it up it was the Page 1 story in the Mail on Sunday.

So I was keen to get my hands on the second one. In this case I made my application to NHS London as they had a copy of the report sent from the Royal Brompton Hospital where the botched procedure had taken place.

Of course S.40 was used to reject my request and my initial appeal and eventually it worked its way through to the Information Commissioner.

Essentially the key point was could the report be kept secret under S.40 (Personal Information). I wanted, and stressed this to the Commissioner, that I didn’t want the patient’s personal details but the reasons for the mistake being made.

Well the Information Commissioner reached his decision [here] and ruled that I was right and S.40 did not apply to the report. But he put in one caveat, in that some of the report, it was considered should still be exempt, which I thought would be the personal bits.

I waited a while after the decision and eventually NHS London e-mailed me with the redacted report [RBHH Redacted SUI report FOI Matthew Davis]. Unfortunately it has undergone severe surgery and is totally meaningless from a journalistic point of view.

Heyho. Why should we worry? Why should we hold to account an organisation where I can see at least ten executives on £100,000-per-year or more yet they cannot sort out its most basic database for successful operation? Is it me?

What is also worrying is the way the Commissioner hoodwinked me into thinking I had won my case only to leave me pondering yet another appeal to the Tribunal.

Return appeal to sender

Nothing special about the postal service

I don’t imagine that many Freedom of Information officers will have much sympathy for me, but I’d like to explain why the Information Commissioner is not currently my favourite organisation.

What has happened is that at the 11^th hour the Commissioner has mysteriously done a 180 degree turn and decided to reverse his decision which had been originally to uphold my appeal.

The first I knew of the Commissioner chickening out of a contest was when the Tribunal called me saying that as the original applicant I had ten days to carry on the case myself.

It all started ages ago when I was asked by a newspaper to make a request about the Royal Mail’s recorded delivery and special delivery services.

Specifically I wanted to know the number of complaints and the total amount of compensation relating to the two premium services.

Of course the Royal Mail refused my request claiming the information was protected under S.43 (Commercial Interests). I eventually appealed the case to the Information Commissioner who ordered disclosure. [Decision Notice].

The Royal Mail appealed the case and it was making its way to the Tribunal and I was not particularly anxious as I felt the S.43 claim was very weak.

Well, as I said I was rung up out of the blue by the Tribunal stating that new information had been provided by the Royal Mail just a few days before the hearing.

On sight of this new material the Information Commissioner threw in the towel and so I was asked if I wanted to take the case over at the last moment.

The Tribunal sent me – ironically by special delivery – two huge lever-arch folders of information that had been prepared for the Tribunal.

I’ve searched through this and try as I might I can’t see the document which in my opinion would make the Information Commissioner throw the towel in.

Anyhow as I already have two tribunals planned for this year relating to the BBC’s taxi spend and the Tate Modern’s penchant for exhibiting child porn I didn’t think I could stretch to a third – especially as I was thrown into it at the last moment.

I wrote to the Tribunal expressing my disappointment with the matter and the fact that when I have such a case I’m the only person there who isn’t getting paid. But seeing as all the Freedom of Information responses I get are free I don’t suppose there will be a lot of sympathy for me out there.

Come fly away with me - NOT

Seeing as he sues probably better not put a smarta*** caption

The Association of Chief Police Officers (ACPO) is an organisation which has volunteered itself to become a new recruit to FoI whenever the Act spreads its wings to cover more bodies.

At the head of ACPO sits the plain-speaking Chief Constable Sir Hugh Orde, who last year gave delegates at the ACPO Information Compliance Conference his views on Freedom of Information and its ramifications for forces in general.

To those who heard his speech it was probably fair to say that some journalists were not his favourite people.

Little did I know at the time that the marathon-running Sir Hugh has had a somewhat chequered relationship with both the press and the Freedom of Information Act.

Essentially this post is about an Information Commissioner’s decision notice relating to the Police Service of Northern Ireland (PSNI) but to put it in context we need to appreciate some of the back story.

Before Sir Hugh’s lofty promotion to head up ACPO he was the top man at the PSNI and as such pocketed a salary of £180,000 and lived with his wife Lady Kathleen in a luxury £600,000 home.

As such he also claimed £75 for a wasp nest to be removed and £35.53p for a new window latch. Ironically he did pay for his own theft insurance, just in case he was burgled. This is all detailed in a Belfast Telegraph story [Perks of a Police Chief].

But what really got the press in Northern Ireland excited was the fact that Sir Hugh had a secret lover, who fell pregnant with his child, over the water in England. In articles he was quoted as saying his family were “supportive” of his affair.

This led to chit-chat about whether all his taxpayer-funded trips to England had been 100% necessary – or whether he was mixing pleasure with business so-to-speak.

[Why Sir Hugh’s out of Order], [Orde’s marathon sessions with lover] and [Orde steps out with new love] give a flavour of some of the atmosphere that was surrounding him at the time.

Throw into this mix a damaging and false story in Sunday World that Sir Hugh used PSNI money to fly his son to the US to attend St Patrick’s Day celebrations.

Sir Hugh sued for libel and the case was eventually settled with the policeman pocketing more than enough to buy a new pair of running shoes. [Police chief wins libel settlement].

With all that simmering away on the background somebody asked the PSNI if it had ever booked a flight on behalf of his son, even if his son eventually picked up the bill.

PSNI refused to either confirm or deny whether it held this information saying it was a breach of S.40(5) (personal information). Sir Hugh got involved because he himself told his force he did not want them to confirm or deny if it held the information. The applicant appealed the case and the Information Commissioner sided against Sir Hugh.

In the judgement he said: “It is the Commissioner’s view that, given that the request relates to information regarding the PSNI’s potential use of public resources to arrange travel arrangements on behalf of the former Chief Constable’s son, it was not reasonable for the former Chief Constable to expect the PSNI not to confirm or deny whether it held that information. Whilst acknowledging the expectations surrounding the right to a private family life, the Commissioner nevertheless considers that there is a significant expectation amongst the public regarding transparency about the use of public resources. In the Commissioner’s view it would have been reasonable to expect that the Chief Constable and his son would have recognised this fact and expected that the public authority to confirm or deny whether information was held in the circumstances.”

So PSNI were ordered to say if it held any such information and if it did to then go on to consider a further question which probed the details of what these flights might have been.

So when I hear Sir Hugh quoted about ACPO’s entrance into the FoI club saying: “Any organisation that operates as part of a key public service should be accountable and open to public scrutiny.” You can’t help but be a little cynical.

Clearly I may be more cynical than the next man but just how much of a FoI supporter is he when he has been shown to have incorrectly used the Act to try to shield himself and his family from the glare of public scrutiny.

Some people might have a lot of sympathy for him, saying he and his family had more than their fair share of public scrutiny. Others might say he brought it on himself.

You can read the decision notice [here] and I’ve asked to find out what eventually happened with this case [here].

Taxi for the Beeb

BBC bigwig Jana Bennett could have saved the Corporation thousands if she'd mastered how to use the tardis.

Imagine you are an employee at the BBC and you need a taxi for yourself or a guest who is going to appear on your show.

The procedure would appear to be that you contact a company called One Transport. They arrange the taxi for you, they pay the taxi for you and then send the BBC a bill not just for the taxi ride but also for them arranging it.

More than a year ago I asked the BBC how much they spent on providing taxis for staff and guests in the 08/09 financial year – the answer came back at around £14million.

But to my surprise the BBC wouldn’t say how much of this went into the pockets of One Transport, so I appealed.

The BBC which had claimed the information was exempt under S.43(2), refused my appeal and I have ended up at the Information Commissioner’s door yet again.

He, I thought unsurprisingly, sided with me saying there was no evidence shown of how prejudice to the BBC or One Transport could be likely to occur by releasing the figure.

But then the BBC appealed and now I find myself looking down the barrels of another Tribunal with the Information Commissioner and myself on one side of the argument and the BBC and One Transport on the other.

A hearing has been pencilled in for February 17 and 18. What will be interesting from my point of view as a journalist is the BBC will not only have to show that S.43(2) (Commercial Interests) is engaged but that the public interest is in favour of non-disclosure.

Particularly as the BBC’s taxi bill caused controversy recently after it was revealed that Match Of The Day pundits Alan Shearer, Alan Hansen and Mark Lawrenson are regularly chauffeured home to the North-east and Merseyside at licence payers’ expense.

Also April last year it was disclosed that three top BBC bosses spent £12,000 on taxis in 12 weeks. This included £4,862 racked up in fares - £75 per day - by its £515,000 then director of Vision, Jana Bennett (pictured).

As an Additional Party to the Tribunal hearing I had to get my skeleton argument in by yesterday so went through some of the arguments put down by the BBC and One Transport.

I have to say that if there can be a category of vexatious requestor there should also be a vexatious public authority – one which refuses to release information even in the face of overwhelming odds.

If there was such a category I feel the Beeb would be in line for the award in this case as some of their arguments are preposterous.

One of them was that if the information I had asked for was released other companies in the same market would know what the winning bid price was (this I consider to be a good thing!). Anyhow the BBC argument goes on that rivals would then bid under that price in a bid to win the contract when it is up for renewal (again I think this is a good thing!).

But in their eagerness to undercut their rivals the BBC fears the new lower bidders risk going bust – meaning the BBC are in danger of not having anybody left in business to provide its taxi service.

It is good to know, I suppose, that the BBC sees itself as an organisation that has to save private businesses from committing commercial suicide – or is it?

Anyhow as you can probably tell I’m pretty confident and if the BBC manage to win this appeal I’ll buy myself the Strictly Come Dancing DVD box set.

You can see the original Decision Notice [here].

Naked Brooke Shields - Shameless attempt to increase my hits!

Inappropriate motorbiking gear. The naked Brooke Shields' picture was replaced by the Tate Modern with this one.

Hollywood starlet Brooke Shields naked – if the start to this post doesn’t shoot me up the google rankings nothing will.

The full frontal image of Miss Shields standing in the bath naked, her face turned provocatively to the camera, has one deeply unsettling quality to it – the Ms Shields in the picture is only ten-years-old.

For centuries rich people and ‘clever’ people, and sometimes rich and ‘clever’ people have tried to justify pornography as art. When they do we have the makings of a controversy.  

That’s what happened at the Tate Modern when it put on display its image of a naked ten-year-old Brooke Shields.

The Tate, which has previously paid thousands of pounds for paintings constructed with elephant dung, took advice from lawyers about whether it should allow the Shields image to go on display.

One presumes that armed with this advice the photograph went on display only to be taken down when the Metropolitan Police visited the exhibition and warned it could be breaking obscenity laws.

Let me now nail my colours to the mast. I have seen the photo and after a momentary gaze at it you know that regardless of any laws it is just wrong.

When you then find out that, according to the Guardian, the image appeared in Playboy magazine with the full knowledge of Ms Shield’s mother it does nothing to quell any doubts you might have about the picture.

If somebody took a picture of a child like that and went to Boots to have them developed, you would expected the shop assistant to get straight on the phone to the police and the photographer arrested and jailed.

In all this preamble you may be wondering why this is appearing on my blog, which is ostensibly about Freedom of Information.

Well I asked for the legal advice supplied to the gallery by Withers LLP [link] on the assumption that they must have thought it was ok for the photograph to be displayed or it would never have gone on show.

Why do I think I should see the advice from the lawyers and break the sanctity of the S.42 (Legal Professional Privilege) exemption? Well as I see it there are two possible scenarios.

Firstly the lawyers told the Tate Modern not to put the picture on display but the gallery went ahead with it, risking prosecution knowing the image was potentially obscene. In which case there is a clear public interest in knowing that the state funding museum is run by people prepared to wilfully break our obscenity laws.

Secondly the lawyers told the Tate Modern the image was fine to display and shouldn’t bring any attention from the police. If this is the case then there is a clear public interest in knowing exactly what this erroneous advice was, as it was paid for with taxpayers money.

Of course there is a third possibility in that the advice from the lawyers was inconclusive (which would not really a big surprise). In which case I still say there is a clear public interest in establishing what the advice was, when it is taxpayers money being spent on it.

As an aside I don’t really think it takes swanky city lawyers to pontificate on whether this image should have been shown in the gallery or not – if you look at it you know it’s wrong and I challenge anybody to say different.

Well my request for the information was turned down by the Tate Modern. I appealed to the Information Commissioner, who also ruled against me [decision notice].

I then appealed to the Tribunal, but my appeal was out of time by a few days. The Tribunal allowed my appeal but the Information Commissioner appealed against me appealing out of time (confused!). The Tribunal then came down on my side and as we stand at the moment I am taking the Commissioner to a Tribunal over the matter.

WARNING: For those of you who want to see the image the head of Ms Shields, which cannot be considered indecent is on the Guardian site’s story of the controversy [here]. There is a website called iconic images which has the full picture which can be viewed (but don’t then come moaning to me) that you have been upset, revolted etc. It can be seen by clicking [here].

Olympics forced to reveal bonus details

Bonus payments. Nice if you get them.

I know I have been away for too long. I have ignored those of you with empty lives like me who hanker for any snippet of FoI related news or gossip.

Well now I’m back, I promise. This blog will get bigger and better. I was given a coffee-maker for Christmas and if I have to consume a double espresso at midnight to write this blog – then that’s what I’ll do.

Apart from the normal asking questions, getting answers, writing news stories I am becoming all too familiar with the workings of the Information Tribunal.

I’ll start today off with my experience of bringing my own appeal against the Information Commissioner and the Olympic Delivery Authority.

This case has rumbled on for months and a date was eventually set for November 10. On the day in question I arrived in London with all my papers but realised I was lacking one essential item – a remembrance poppy.

The horror of being the only person in the room without a poppy so consumed me that I began approaching strangers in the street asking to buy their one – and was refused. Eventually I got one from the Nationwide Building Society and was ready for legal war.

The key to the case was that I wanted to know how much the executive of the Olympic Delivery Authority (ODA) could have been paid as a maximum bonus, and what performance criteria determine those payments.

I’ve written about this case before [here and here] so I will not go over it in too much detail for those of you who are already familiar with it.

In summary I represented myself, the ODA had Mr Pitt-Payne QC of Panopticon fame and the Information Commissioner had barrister Joanne Clements. They brought along about 10 paper shufflers and I took my mum and dad, who I think are curious as to how their son makes a living.

I crossed swords with Sir Roy McNulty and then the ODA’s Aussie chief executive David Higgins (I should have mentioned the cricket).

Well the upshot of the whole thing is that I think if we continue with the Olympic theme I can award myself a bronze or silver medal. Gold I’m afraid I can’t lay claim to as the Tribunal decision was that the objectives that underpin the bonus payment should remain secret.

However, my appeal was upheld as it was stated that the ODA and the Commissioner should have allowed me to know what the maximum bonus was that the executives could have been paid.

My argument is that bonus payments are pretty meaningless to the general public unless we can know how much of their bonus they were awarded. A chief executive who gets a bonus of £50,000 might be doing a good job, but if he could have got £500,000 if his performance had been better, I’d say he was pretty poor.

Anyhow, expect questions on executives’ bonus payments in the near future. There is a link [here] to the decision of the Tribunal and [here] to a revised question for the ODA.

Next week more of my Tribunal skirmishes with the BBC, the Royal Mail and the Tate Modern over a nude picture of Brooke Shields.

Lockerbie row rumbles on

Libyan leader Colonel Gaddafi never travels without his female bodyguards

Abdelbaset Ali Mohmed Al-Megrahi is the man some people think was responsible for carrying out the bomb attack on Pan Am 103 that crashed into Lockerbie killing a total of 270 people.

His conviction and his subsequent release on compassionate grounds has been the subject of a great deal of controversy.

Some people say he was innocent of the crime and should never have been imprisoned some say the least he deserved was to die in jail.

When he was diagnosed as being terminally ill with prostate cancer a decision was made to allow him to go back to his Libyan homeland for the last few days of his life. This took place in August last year.

The nub of the issue in his release was that he was only expected to live for a further three months and allowing him home was the humane thing to do.

Ten months later he is still alive and MSP George Foulkes wants to see the monthly medical reports on Al-Megrahi’s condition that are logged with East Renfrewshire Council.

Clearly the information is covered by the Data Protection Act and as medical data would also be considered to be ‘sensitive’.

Mr Foulkes said there was a clear public interest in the matter becoming public knowledge but because the data was subject to schedule 3 there were only two possible ways the information could be released.

Firstly if Mr Al-Megrahi gave his explicit consent to the information being released. He was contacted and didn’t give permission.

The second exception was if the information had already been made public by the deliberate actions of the data subject.

The Commissioner made checks to see how much of the medical data about Al-Megrahi he himself had made public and found media reports with generic information that his condition was getting better or worse. But there was no specific information in the reports.

So, the reports will remain secret. However, I’d be interested to know if people think making the same application after Mr Al-Megrahi dies might be successful.

Mr Foulkes is reported as saying: “Foulkes said: “I am very disappointed that the freedom of information laws within Scotland don’t allow the public access to this information.

“It is clear that Megrahi, through his lawyer, has vetoed it. This is matter of not just national interest but also international interest. There are relatives of Americans who died who are concerned about it.”

The decision [link] has caused some controversy in Scotland. In February, Bill Aitken, justice spokesman for the Scottish Conservatives, said: “It is almost bizarre to suggest that the biggest mass murderer in Scottish history should be just like any other client. He is not. The public have a right to know what is going on.”