Singing like a Canary….Wharf

Time to reconsider the public interest test again

The merits or otherwise of torture is not really a topic I thought I would be discussing in detail on this blog, but the fact that I am just goes to show the true wonder of FoI.

Now some say that torture is a pointless exercise and I have to confess that if you strapped me to a chair and came at my sweetbreads with a set of jump leads I’d tell you everything including next week’s Lottery numbers.

So the practical usefulness of torture has often been debated alongside the moral argument as to whether it is something civilised society can ever justify.

Enter stage left a FoI question to the Metropolitan Police Service (MPS) asking them for information about a plot to hijack planes and fly them into Canary Wharf.

The question followed a statement from President George W. Bush in September 2006 when he said that ‘questioning’ of terrorist suspects in secret detention facilities had averted an assault on Canary Wharf.

As somebody who thinks torture is a bad thing but also has friends and a relative working in Canary Wharf this causes me something of a moral dilemma.

What is needed is a little of the smoke to be blown away to see if there is any truth behind the alleged plot to fly a plane into the capital’s iconic business tower block.

The question to the MPS asked ‘how a plot… was foiled using information from the programme to detain suspected terrorists in undisclosed locations outside the US’.

Initially the MPS refused to confirm or deny it held such information relying on a total of six exemptions. Eventually this seemed to boil down to just three; S.23 (Security Bodies), S.24 (National Security) and S.27 (International Relations).

The Commissioner rejected the NCND position of the MPS and said it should state if it had the information or not. The MPS took this decision to the Tribunal.

At the Tribunal evidence was produced for the first time by an officer referred to as Det Chief Supt W who convinced the panel that if the MPS held the information it would have come through one of the intelligence agencies listed in S.23.

My reading of the decision and it appears something of a technical victory for the MPS is that the appeal was allowed on the basis that the question asked about “information from the programme to detain suspected terrorists….” This information must have come from a security body and so to confirm or deny would be a breach of S.23.

However, the way I read the decision leaves the door open for a simpler question just asking if the MPS holds such information, but doesn’t inquire as to where the information originated. I’d be interested in your thoughts.

Two other points worth mentioning from this decision are the stick the Commissioner takes for taking so long to reach an initial decision on the appeal. The Tribunal does not say exactly how long this was but states: “the requestor might be forgiven for having forgotten that he had made the request”.

Secondly the Tribunal makes an interesting comment on the general topic of this case and its wider significance saying: “We have remarked already on the wide ambit of s.23. It is not hard to understand why it is broadly drafted.

“In this particular case, however, we are concerned as to its effect. The interrogation of detainees in offshore facilities, the methods allegedly used, the use of information thereby obtained and the possible collaboration of the U.K. government in these activities are still matters of vigorous and anxious debate in this country.

“Whether the CIA passed to UK intelligence the information referred to by President Bush may be a question of considerable importance in such a debate. In the rather unusual circumstances of this case (where a head of state has publicly announced the source of terrorist intelligence), it is hard to see that any significant damage could be caused by confirmation or denial.

“The extreme rarity of such announcements might be seen as a robust defence to the dangers of creating precedents.”

The Tribunal was also critical of the MPS for not bringing forward the crucial evidence of how the link was made to the security services until the Tribunal stage. Had it been done earlier it would possibly have saved everybody time and money.

The Tribunal’s ruling can be seen [here].

GM crop mix-up site to stay secret

GM foods do have something of an image problem

In 2008 at a farm somewhere in Somerset a GM modified strain of rapeseed was accidentally sown by a farmer alongside a normal strain of the plant.

The concern was that the GM variety – or the Frankenstein food as we journalists enjoy calling it – had been modified so that it was resistant to weed killers.

Why scientists would want to develop a plant that can’t be controlled with weed killers is beyond me, it’s a little like deliberately developing a strain of disease that can’t be killed with medicine, and we call that germ warfare!

Anyhow news of this “accidental spillage” as it is called leaked out and somebody asked DEFRA for the grid reference of where it had happened.

Now on the face of it this didn’t seem an unreasonable request to me. If the food chain is being put at risk by cross pollination with a freaky science strain of plant which can’t be killed by a good dose of RoundUp I think we should be told.

The request for the location was made to the Department for Food and Rural Affairs (DEFRA) under the Environmental Information Regulations.

But it was rejected on the basis that disclosure would be a breach of the farmer’s rights under the Data Protection Act and therefore under Section 13(1) of the EIRs.

DEFRA had revealed the incident took place in the parliamentary constituency of Somerset and Frome, which covers 900 square miles.

The Commissioner said that he was minded to rule it should be further refined to the outbound section of the postcode (the first half), which covers an area of about 18 square kilometres.

But this potential compromise agreement was not enough for the applicant who wanted the full grid reference, which it was said can be more detailed than a full postcode and which could easily lead to the identity of the farmer.

The Commissioner was told the farmer thought he was carrying out trials on what he believed to be conventional rapeseed and was later told the seed was contaminated with a GM version.

He was asked by DEFRA if he was prepared to be identified and unsurprisingly he said he’d rather not as it could affect the price of his farm and his reputation.

So unless this case goes on to the Tribunal we shall never know where this incident took place as the Commissioner ruled the grid reference should not be disclosed [FER0260420]. But if I were a journalist in Somerset I’d be on the lookout for any weird botanical happenings down in the land of the scrumpy drinkers – and I’d like to know if cider sales are falling in Wilmslow.

Anti GM activists on an undercover operation

WhatIsTheProblem.Com

Where did they get that 1950s couple from?

When WhatDoTheyKnow first appeared I have to admit that I was a little bit sceptical of the idea. I was wrong.

Now I think it is a brilliant, easy way of asking questions. The idea of having the answers, and the questions, available for the whole world to view on-line is a masterstroke that intersects perfectly with the Freedom of Information Act’s principles of transparency and accountability.

But not everybody is a fan. The fact that the data is automatically splashed up on the web for anybody to look at does seem to make some authorities nervous.

I have deliberately used my account at WhatDoTheyKnow on occasions because it has been my perception that if the public authority knows it’s response to me will be on display to the rest of the world it might just take a little extra care.

But there is a reluctance from some public authorities to engage with requests on WhatDoTheyKnow, which shows a somewhat prehistoric attitude towards the fundamental principle of openness which the Act was supposed to promote.

A few examples:

The House of Commons: Martin Rosenbaum’s excellent Open Secrets blog has recently covered this case in which a request was made for details of an electronic voting system. The House of Commons refused to release the information to the WhatDoTheyKnow e-mail site as they said the publication on the web would be a breach of copyright. The Information Commissioner has ruled against the House of Commons [decision notice] and the response can now be seen [here].

Southampton University: Here the University bizarrely started to password protect its FoI answers that were posted on the site, yet the password was also posted! A few people, me included, sent in FoI requests to get a rationale for this decision. But that only seems to have made things worse. The most recent exchange [link] has the Uni holding an internal review after the person who made the request called them “brusque and snide” in its reply. Most amusingly we then have the University looking up the Oxford English Dictionary definition of those words. Snide = insinuating, sneering and slyly derogatory. But curiously the issue doesn’t seem to have moved on any and I’m still perplexed as to what the University’s position is, although it definitely isn’t slyly derogatory.

Salford University: Many thanks to the person who pointed me into the path of this tower of learning. When you view its pages on the site [link] you will see that it is almost a default position to make somebody vexatious just because they are on the site. One of the most recent requests on WhatDoTheyKnow to the University asked a quite reasonable question asking why this was the case. Yes, you’ve guessed it them made the requester vexatious and refused to answer it. Intrigued by this approve I am left with no option but to make a similar request on papyrus and send it by Pony Express. I’ll let you know how I get on.

NOTE: This week I was very kindly invited to be a guest at the ACPO/ACPOS Freedom of Information Conference in the Midlands. Some of the delegates said some nice things about this blog. Sometimes it can seem a lonely, pointless exercise writing it in glorious isolation. But those kind comments have re-invigorated me, and in the words of Shawshank Redemption I shall “Get Busy Blogging”.

Strong and stable FoI

A representative Government?

So we have a new Government at last and this Conservative/Liberal Democrat coalition is looking around for things they can agree on.

Well rumour has it that one thing they are going to take from their manifestos and bring to Parliament is a so-called Freedom Bill.

This was a plank of Liberal Democrat policy and pledged to strengthen the powers of the Data Protection Act and the Freedom of Information Act.

It specifically made mention of bringing private companies under the Act if they are delivering monopoly services to the public. They specifically mention that Network Rail should be brought under FoI legislation, but I presume it would also then extend to utility organisations like water and power companies.

The reason it would appear that this may be pushed through is that it is not completely at odds with Conservative policy, which although less specific did make noises about strengthening the power of the Information Commissioner, giving him the power to fine organisations that are found guilty of mismanaging data.

So it would appear that Clegg and Cameron can find common ground on a Freedom of Information agenda and the power and reach of the legislation could even be extended.

If this does come to fruition and private companies working in the public sector are brought under the Act it means the Information Commissioner will have to do his second U-turn on the issue – he really must be getting quite dizzy.

It was assumed that water companies did fall under the Environmental Information Regulations (EIR) after a decision relating to Sutton and East Surrey Water PLC (FER0118853 and FER0162211).

However a decision released in March by the Commissioner [FER0260426] reversed that ruling and stated that water and sewerage companies were not public authorities for the purposes of the EIR. This decision notice, which isn’t on the Commissioner’s website (e-mail me if you want a copy), refered to a complaint I had made against Thames Water [link].

This reversal, that is signed off by poacher-turned-gamekeeper Steve Wood, used an Information Tribunal decision relating to Network Rail (EA/2006/0061 and EA/2006/0062) as part of the rationale for exempting such companies.

Now it appears the world might be turned on its head again and the legal decisions are to be trumped by the lawmakers.

So if they have got time between working out where the cuts are going to go the Government may just give the Freedom of Information world a bit of a shake down.

Would-be Commissioners’ notes to be kept secret….for now

Interview tables should be wide enough to avoid physical confrontation but narrow enough that you can hear each other.

Last year the Information Commissioner issued a Decision Notice which sent ripples of worry through the Human Resources departments in public authorities.

It ruled that a council employee, who had applied for two internal vacancies, had the right to see various details of the other candidates as long as their identities were kept secret.

I wrote about the Decision Notice [link], which was issued against Leicester City Council, in March 2009 (Giv Us a Job).

The Information Commissioner said in that Decision Notice: “Some of the information about applicants’ experience and qualifications could be provided in an anonymised form, without breaching their rights under the Data Protection Act.”

Why am I regurgitating the details of an old Decision Notice I hear you ask?

Well I thought this ruling was interesting and was just waiting for a real life situation to come along that would be a good test.

So what could be more appropriate than the appointment of the Information Commissioner Christopher Graham? What did the interview panel think of the candidates? What sort of qualifications and background did the unsuccessful would-be Commissioners have?

I sent in my question on WhatDoTheyKnow [link] and surprise, surprise the Ministry of Justice refused me claiming the information was covered by S.40 (personal information). I appealed and made it clear I didn’t want any names or anything that would identify any of the applicants.

Quick as a flash – well quick when you consider how long you normally wait for a MoJ appeal – they came back upholding the appeal.

So what do I do now? I have to say the temptation to lodge an appeal with the Information Commissioner will be too great to resist.

If I do surely it means the information has to be sent to the Information Commissioner so he can examine it and then make a ruling on whether the notes do in fact identify anybody. Of course if he were to side with the MoJ it would make the Leicester City Council decision look suspect.

Once again it appears to show one of the unwritten laws of FoI, in that there is one application of the rules for hard-pressed, doing their best lower tier public authorities and a whole different set of standards for those that breath the giddy atmosphere of Government.

Remember. At job interviews and weddings it is important to dress appropriately!

Postman Pat…hetic

Pat waves goodbye to common sense

One of the things I like doing with FoI is following in the footsteps of other requesters. I’m not ashamed of pinching somebody else’s good idea.

To that end I’ll read the Decision Notices and Tribunal judgements. When there has been an order to disclose documents and I think they might be interesting I’ll ask for a copy of everything that was disclosed to the original applicant. On occasions it has yielded some great information without me having to be the one who has to prepare all the appeal documents.

However, the Royal Mail are taking a stubbornly unique approach to the Freedom of Information Act in a case where I want data it has already been ordered to disclose.

Way back the Royal Mail was ordered by the Information Commissioner to reveal how much it had paid to management consultants in 04/05, 05/06 and 06/07. The decision notice [here] ruled the information was not covered by S.43 (Commercial Interests).

The case initially went to the Tribunal but appears to have been settled before the case was ruled on by the panel. However, what is not in dispute is that following the intervention of the Commissioner the management consultancy fees were disclosed.

So I thought I’d ask for the figures that had been disclosed and bring the issue right up to date by asking for the 07/08 and 08/09 figures.

Imagine my surprise when the Royal Mail refused to release the information! They claim that it would be too expensive and breaches the £450 limit to amass the data for the two most recent years – despite being able to do it for the three older years. It also claims that the information about those three years, where the information was disclosed to the applicant, cannot now be released to me (is it because I’m a journalist?) because it is exempt under S.43.

This is what they say: “Royal Mail Group holds the total amount spent on strategic management consultants in 2004/5, 2005/6, and 2006/7. Information for these years is held because it has previously been collated by Royal Mail Group.

“As you are aware, this information was previously the subject of an ICO Decision Notice - FS50178376. The information held therefore covers the strategic management consultants as defined in that case.

“Although this information was released to the applicant in case reference FS50178376, we still believe that disclosure of the information at this time would be likely to prejudice the commercial interests of Royal Mail Group.”

There was me thinking one of the main limbs of the Freedom of Information Act was that disclosure to one person was disclosure to the world.

Anyhow, you may not be surprised to learn that my appeal to the Information Commissioner is winging its way through the post – recorded delivery.

The refusal of my internal appeal can be seen here [Appeal refusal]. If anybody has any thoughts on this case I’d be pleased to hear them. Is there something I’m missing in my understanding here, or do Royal Mail think they can make the rules up as they go along?

Getting personal with Dr’s information

Can I disclose that personal information because it's in the public interest?

An interesting decision has been published from the Tribunal giving more insight into how it approaches the question “personal information”.

In this latest case the Tribunal has overturned the Commissioner’s initial decision that the personal information could be kept secret.

It has now ordered the General Medical Council to release documents about a doctor who sat on its Fitness to Practice Committee and got into hot water over his links to the controversial Church of Scientology.

The Tribunal clearly spelled out the main issue in the case when it said:: “There is an inherent tension between the objective of freedom of information and the objective of protecting personal data”.

Indeed the issue of how the Data Protection Act and the Freedom of Information Act co-exist is something that will keep academics and lawyers busy for years. Freedom of Information gives you a right to have information while the Data Protection Act is a law to stop people giving that information away.

Ultimately it would appear that a judgement has to be made when a FoI request comes in to decide if the rights of the requestor override the rights of the data subject.

The three point test that appears to have been adopted is:

         i.            There must be a legitimate public interest in disclosure;

       ii.            The disclosure must be necessary to meet the public interest; and

      iii.            The disclosure must not cause unwarranted harm to the interests of the individual.

In this case the Tribunal ruled that the public interest was more powerful that the rights of the individual and have ordered disclosure.

However, the case is still subject to an appeal and so the actual information on which the decision was made have not yet been released.

Here is a link to the Tribunal’s decision [Ref: EA/2009/0063].

From a personal point of view I am cheered by the decision as it would seem to strengthen my arguments into the release of the performance objectives of the chief executive of London 2012. If anybody knows how I could contact the applicant, William Thackeray, I’d be very grateful.

UPDATE: 27.2.10: All the details of this appeal are on WhatDoTheyKnow. Apparently it is the first case from WDTK to reach the Tribunal. Congratulations to both Mr Thackeray and WDTK. Here is a link to the history of the case [link]

How Low Can You Go? Part II.

That crowbar looks far too shiny

The topic of when simple statistical data becomes personal data has always been a topic that has caused a great deal of head scratching.

If I ask how many people in East Sussex are obese nobody would consider that to be personal data and subject to a S.40 exemption. However, if you were to ask how many adult males living at my address were obese and the answer was to be one – you’d have violated my privacy, breached the Data Protection Act and ridden rough shod across S.40. Anyhow, just for the record, I’d like to state that I’m just slightly overweight!

But nobody has really said how and when that numerical data becomes personal data. The topic has come before the Tribunal and the Commissioner before and the issue has still not really been resolved (I’ve put a series of links at the end to judgements which have focused on this point).

However, the latest judgement from the offices of the Information Commissioner [Ref: FS50161581] relates to the Greater Manchester Police (GMP). It received a request wanting to know the number of burglaries that took place in Honeysuckle Close and Tunshill Road.

To my mind the key point in this question was the number of houses in each street. In Tunshill Road there are 83 but in Honeysuckle Close there are just 13.

GMP refused to release the data saying it was subject to S.31 (law enforcement) as well as S.40 (personal information).

The S.31 argument was quickly dispensed with by the Commissioner despite some interesting arguments by GMP which included the fact that disclosure of the information might lead to more burglaries as criminals would expect the stolen property to be replaced with new goods courtesy of the insurance companies.

But the S.31 plea from GMP was rejected by the Commissioner who said “this would not present a real and significant impact on the ability of the police to prevent crime and to apprehend offenders”.

On to S.40 and the Commissioner admitted the number of properties and the number of burglaries were small in number but added “I am not persuaded that, taken together, they would allow for the identification of any individual.”

The Commissioner touches on the subject of “crime maps”, a new politically-driven idea that will allow people to look up on the internet to see what sort of crimes have been committed and where. However, he says that just because a police force picks a certain parameters for the reporting of each crime type the Commissioner, when considering individual Freedom of Information requests, does not have to be bound by the police approach.

As it would appear that 13 is considered a number not too low to allow a S.40 exemption to be applied. The key question is when does the number become too low (see my earlier post on this topic ‘How Low Can You Go?’) and would the level change if we were talking about more sensitive personal detail.

To test drive this ruling I’m asking on whatdotheyknow how many burglaries have taken place each year in Connaught Square, Westminster, to see if the arrival of the Blairs after he left No.10 and the associated police presence had any effect on the number of house raids [link].

Other judgements:

Common Service Agency v Scottish Information Commissioner [2008] UKHL 47, link

Department of Health v Information Commissioner & Pro-Life Alliance [EA/2008/0074], link

Sussex Police v Information Commissioner [EA/2009/0013], link

Border Agency gets in a pickle over Dutch MP’s visit

Mr Wilders - Your name is on the list and you are NOT coming in.

The UK Border Agency has had its knuckles rapped by the Information Commissioner after it took almost a year to respond to a Freedom of Information question.

A request was made on the whatdotheyknow website about information relating to the decision to ban Dutch MP Geert Wilders from entering the UK.

Mr Wilders had caused controversy in that he was responsible for producing a film called Fitna, branded by many as anti-muslim.

Because of these views the British Government decided he should not be allowed into the country. Eventually he was allowed in and showed his film at the House of Lords.

More background on Mr Wilders and his film can be found [here].

The request for information was made to the UK Border Agency on February 12, 2009 and they acknowledged the request five days later. In March, July, August and September there was some communication between the parties but the question was still not answered.

Eventually in on September 30 the applicant got in touch with the Commissioner’s office and on October 30 the Commissioner communicated with the UK Borders Agency, who said “unfortunately a response to this case has not yet been issued”.

The UK Border Agency said it was in the process of answering but was trying to assess a possible S.36 (Prejudice to the effective conduct of public affairs) exemption to some of the information.

Finally the Information Commissioner counted out the UK Border Agency when it still had not not replied by December.

A Decision Notice was issued dated January 7, 2010 [link] and finally the UK Border Agency did reply, although it decided after all that time to exempt most of the information under S.21 (Available by another means), S.27 (International Relations), S.36 (Prejudice to effective conduct of public affairs) and S.40 (Personal Information).

You can see the whole history of the request posted on whatdotheyknow [link] and for those of you interested there is a news clipping on Mr Wilders below.

Olympic Tribunal: Latest

For those of you keeping tabs on my progression to the Tribunal I have an update for you.

Firstly the Information Commissioner has now put up a copy of his Decision Notice [link].

And the Commissioner has also replied to my request to the Tribunal for an appeal [ICO Response].

For those of you unfamiliar with the case I had asked for details of the bonus payments made to the chief executive and the board of directors of the Olympic Development Authority (ODA). My request was rejected by the Commissioner on the basis that it was subject to the S.40 exemption.