Blair 1 Beckham 0

Tony Blair : Just in case you had forgotten what he looked like.

The National Portrait Gallery has won its fight to keep secret its internal negotiations relating to forthcoming commissions of former Prime Minister Tony Blair and Sir Mike Jackson, former head of the armed forces.

The Gallery said it could not release the internal documents as they were subject to  Section 36 exemption (Prejudice the effective conduct of public affairs).

It stated that to release the documents during the sensitive period when the gallery was negotiating with potential artists and the sitter would harm its chances of carrying out its public role.

The Information Commissioner was told that both Tony Blair and Sir Mike Jackson had agreed to have their portraits done for the Gallery and this information was on a public website.

What the Gallery said it could not disclose was the active discussions about how the commission would be carried out. It also stated that it now publicly releases the price it pays for portraits, but after they have been unveiled at the Gallery.

The Gallery said: “To provide any further information would prejudice, or would be likely to prejudice, the effective conduct of public affairs. It explained that making correspondence, emails and documentation publicly available could dissuade the artist or sitter from taking part.”

The Information Commissioner ruled that S.36 was engaged saying: “Disclosure at the time the request was made would have been likely to have dissuaded the artists and sitters or future artists and sitters from taking part in the process.”

The Commissioner went on to conclude that although there were Public Interest arguments in favour of disclosure the test favoured the retention of the exemption.

He said: “The Commissioner accepts that there is some public interest in disclosure but finds that in all the circumstances of the case this is clearly outweighed by the public interest in maintaining the exemption.”

The full decision notice can be found here. [link]

A video of a snoozing David Beckham. Money well spent?

Editor’s note: The key point to this question is timing. Had the question been asked after the portrait had been unveiled then the decision may have been different, and if the portrait gets a thumbs down from the public does that increase the weight of the Public Interest test in disclosure? The National Portrait Gallery capitulated over releasing the amount it pays artists a few years ago following my appeal relating to a video of a sleeping David Beckham [link]. I would not say this is a complete victory for the Gallery as it will be interesting to see how the arguments are re-balanced once the active commissioning phase of the process are over.

The attack of the black marker pen

Walton Prison in Liverpool

As the furore grows over the amount of black marker pen used to redact MPs expenses a fascinating case with parallels to Parliament’s has been issued by the Information Tribunal.

It concerns more serious items than duck houses and property ‘flipping’ and centres on the case of the highly unfortunate George Kelly, who was wrongly convicted and then hanged for a gruesome double-murder committed more than 50 years ago.

Kelly was hanged for murdering two men at the Cameo Cinema in Liverpool in March 1949.

Cinema boss Leonard Thomas, 44, was counting the night’s takings in an upstairs office when he was shot by a robber along with his friend and assistant 30-year-old John Bernard Catterall. The gunman escaped with the night’s takings of £50.

Kelly, a labourer, who denied any involvement in the murder was convicted on the basis of evidence from a prostitute, a pimp and an ex-con. On February 1950 he was hanged and buried within the grounds of Walton Prison, in Liverpool.

He was eventually posthumously cleared of the crime in 2003 when the Court of Appeal heard that a statement given to detectives by a prosecution witness, claiming another man had confessed to the crime, was not been disclosed to the defence.

But it was when attempts were then made to give Kelly a proper burial on consecrated ground that the Freedom of Information Act and the Data Protection Act impinged upon the case.

In the 50 years between Kelly’s burial and his acquittal the authorities added to his indignities by building a car park over his last resting place.

It would appear that the car park’s existence caused some concern at the then Department of Constitutional Affairs (now the Ministry of Justice) as to precisely where his body was and the costs associated with exhuming his body to allow his surviving family to have a proper burial.

A representative on behalf of the family submitted requests to the Government department asking for notes and documents it held on its discussions about the exhumation, specifically a copy of the advice given to the Minister to issue the exhumation licence in principle for Mr. Kelly; a copy of all communications with the National Offenders Management Service (NOMS) regarding this matter; and the records in relation to communications with a named individual.

Initially the department refused the request claiming it was subject to a S.36 (prejudicial to public affairs) and S.40 (Personal Information). But by the time the case reached the tribunal the issue had been narrowed to just the S.40 exemption as it applied to individual working for the Government.

The Tribunal ruled that the note of a telephone conversation was still covered by the S.40 exemption but that a submission to the minister should be released with a minimum of information redacted.

It said in its decision: “The situation in terms of the Submission dated 28 November 2005 is different. The starting point is that Mr George Kelly had his conviction for a notorious double murder quashed in June 2003.

“At that point he was an innocent man. It is reasonable for the public — and this is not limited to his relatives — to want to understand how the exhumation decision was arrived at in these circumstances and, insofar as it is possible, to understand the reasons for any delay (particularly the 32 months that occurred in this case) in the proper burial accorded to him.

“…the current (final) redaction is, in the Tribunal’s view, still much too restrictive. Proper caution and sensitivity about the issues set out on the Submission is one thing but it is clear to the Tribunal that - in the balancing exercise that is at the core of decisions in this area - the balance tips in favour of disclosure with the most minimal redaction possible and proportionate, and that this disclosure generally is necessary in the public interest.

“In cases such as this HM Prison Service and the Ministry of Justice are dealing with delicate and sensitive historical issues. With the improvements in forensic science techniques it is quite possible in the future that there will be other cases like Mr. Kelly’s where a person has been executed by the State and then exonerated through the appeal system and where relatives wish for a proper burial to take place. The matters set out in the Submission are generally informative about the process and the issues which need to be considered and it is in the public interest that these are disclosed.”

So while the officials who released the Prime Minister’s expenses feel it is necessary to redact his £99 Sky TV subscription it would appear the Tribunal take a somewhat more liberal approach to what can be allowed to be disclosed under the act.

A full copy of the Tribunal decision can be found here.

Culture of secrecy is weakening

The following article by outgoing Information Commissioner Richard Thomas was published in the Mail on Sunday - it is an interesting summary of how far Freedom of Information has travelled in the last four and a half years, and some of the dangers on the horizon.

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A scene from the film adaptation of George Orwell's '1984'

Biometric identity cards. The Attorney General’s legal advice on the Iraq invasion. MMR vaccine. A database of every child in the country. Street View and Facebook. Nuclear plant safety. Questions about whether we are sleepwalking into a surveillance society. Oh - and MPs’ expenses.

There’s nothing dull about data protection and freedom of information. Protecting personal information and upholding the citizen’s right to know about the activities of a vast public sector cut across virtually every aspect of life.

When I started as the independent Information Commissioner at the end of 2002, I predicted that the role would involve promoting novel and controversial laws that would often be seen as threatening to powerful forces.

I probably underestimated the scale of the challenge. I have certainly had to ruffle a few feathers. But as I stand down after nearly seven years I hope that the Information Commissioner’s Office (ICO), which I have been privileged to lead, has made a real difference.

Our dual role is to bring home the importance of safeguarding personal privacy, while pushing government and the rest of the public sector towards genuine open government.

The aim is to minimise what others know about our private lives and maximise what we know about the activities of government.

When I started, data protection was marginalised and frankly seen as somewhat nerdy. Freedom of information was a subject of interest to the chattering classes and - after years of debate - had not even been implemented.

Both now influence, and sometimes set, news and political agendas on a daily basis. Both have come of age and moved centre-stage.

Data breaches - including the loss of 25million child benefit records in 2007 and 14 NHS data security breaches in the past year - have shown beyond doubt that people really care about how their information is handled.

Money is at stake when bank account details fall into the wrong hands but health records involve particularly sensitive data. My office has had to take action against a number of hospitals and other NHS organisations.

Inquiries and investigations have demonstrated that high-level accountability is key to handling personal information well. It is too important to be left just to compliance officers, lawyers, IT departments and other experts.

Someone at the top has to make sure that all the risks have been addressed. High-level management is needed to make sure that staff are aware that customers, taxpayers, employees, pensioners and service personnel expect their personal information to be properly collected, stored and used. Data lapses risk reputations and bottom lines.

Chief executives are now getting the message and starting to take data protection much more seriously. The threat of a substantial fine by the ICO will also focus minds when this power is finally made available later this year.

I suspect the debate will shift increasingly from security to questions about the accuracy and relevance of the data. What company wants inaccurate records on its customers? What public body can afford to mix up two identities? Will the Court of Appeal agree with me that the police do not need to keep for decades records of isolated and very minor offences committed by upright citizens when in their teens?

As well as accuracy, data minimisation needs to be the watch-phrase - not collecting more than is needed, nor keeping it longer than necessary. Data protection does not stop sensible things being done but it does make organisations think about, and justify, what they are doing.

The Government has been an advocate of creating huge collections of data, often with very good intentions, and of course information can be a valuable asset for law enforcement, public protection and service delivery.

However, it can also quickly turn into a toxic liability if the risks materialise. If things go wrong, real damage can be inflicted on people’s careers, their reputations, their personal relationships, their private lives and their bank balances.

And you do not need to believe in George Orwell’s Big Brother to see that real damage can be inflicted on society at large if government collects too much information about us. This is central to the relationship between State and citizen.

We often have little choice about entrusting the State with our personal records on tax, police, health, education, driving and so on. We need to have trust and confidence that each database is being used for the right purpose. We do not need or want to get paranoid about who knows what about us or otherwise have our freedoms and liberties jeopardised.

I welcome the increased awareness of the dangers that excessive, unrestrained or unscrutinised collection and use of personal information can bring. Benign motives do not eliminate the risks. I said last year that setting up a government database to keep a record of all our emails, phone calls, text messages, web searches and online shopping would have been a step too far for the British way of life.

I welcome the Home Office’s decision to rule out the idea of a single government-run store of communications traffic data. The tensions between security and liberty are undoubtedly delicate but they are healthy and it is essential to secure a balance, with clear boundary lines, informed by full debate.

Openness is, of course, key to public confidence and the Freedom of Information Act introduced the legal right to know. There has been a strong appetite for it - we estimate that nearly half a million requests have been made so far. I am proud that we have nurtured the law to become a permanent fixture and a core part of the fabric of public life.

The recent uproar over MPs’ expenses has cemented the Act’s reputation as a success story.

The surprise is no longer the nature and extent of disclosure of information. What is astonishing is how much was previously kept secret.

Transparency and openness have now become part of the standard political vocabulary. Politicians and commentators compete to hail the benefits of the public’s right to know. It is a defining feature of a modern democracy and a stark reminder that politicians and their officials serve the people, not the other way round. Citizens are entitled to know what is done in their name, with their money.

As well as promoting accountability and public engagement, freedom of information deters corruption and impropriety. It’s no wonder that, many years ago, a famous US judge described openness as the best disinfectant.

The culture of instinctive official secrecy in the UK is weakening but there is still further to go. Everyone in public life can learn from the MPs’ expenses saga. That is why I called last week for more routine disclosure, making information available without waiting to be asked.

Departments need to identify their Crown Jewels, which really must be kept confidential, and publish other material as a matter of course.

Access to information is part of a much wider agenda of social change. Modern communications mean it is easy to discover the facts. Open government is good government and I welcome indications from the Prime Minister that the Freedom of Information law will be extended and the 30-year rule reduced. The proposal to exclude Cabinet papers, not just Cabinet minutes, from disclosure is bound to be more controversial.

On Thursday, the Commons authorities are expected to finally publish wholesale details of MPs’ expenses. This follows my initial ruling ordering disclosure.  

Of course, the media beat the Commons to publication of some of the material, but none of this would be known were it not for the Freedom of Information Act.

Misbehaving judges to remain shielded by secrecy

The Guardian newspaper has lost an Information Tribunal in a case relating to misconduct on behalf of judges. I have reproduced the Guardian article below and this is a link to the Tribunal decision in the case.

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The government and the judiciary can continue to conceal the names of more than 170 misbehaving judges, a freedom of information tribunal has ruled.

The judge heading the tribunal decided that some members of the judiciary who have been sacked or reprimanded for misconduct would suffer “great distress” if details of their misdemeanours were made public.

The judges’ authority in the courtroom would be undermined, and their privacy unjustifiably invaded, if the public were allowed to know how they had been disciplined, according to the tribunal.

The ruling came out in favour of justice secretary, Jack Straw, and the judiciary as they have fought a four-year battle to hide the identities of miscreants.

The three-member tribunal, led by David Marks QC, dismissed a challenge from the Guardian which had argued that the public should know which judges had been disciplined and why.

Straw and Igor Judge, the lord chief justice, are in charge of deciding how to punish judges, members of tribunals, magistrates and coroners if they behave badly in the courtroom. They can also be disciplined if their conduct outside the courtroom “tarnishes the reputation of the judiciary”.

It is known that judges have been admonished for being convicted of drink-driving, falling asleep in a rape trial and viewing porn on their official computers. An immigration judge who had an affair with his Brazilian cleaner and sent her text messages calling her “chilli hot stuff” was rebuked for showing “poor judgment” in hiring her. The cleaner was cleared of blackmailing him.

In their verdict, Marks and the two members of the tribunal said it was not “at all far-fetched to assume” that the courts would be disrupted if the public were allowed to know about judges’ misdemeanours. They cited the example of an unnamed “very senior judge who was reprimanded by the lord chief justice”.

Marks and his colleagues said that if barristers had known about the behaviour which had led to the reprimand, they would have used the information to try and get an adjournment of hearings or “in some cases an application that the judge in question not hear the particular case.

“This clearly has adverse implications for the public and for the administration of justice generally,” they said.

Marks also said judges could also experience “intrusive” and overblown reporting by the media of their misconduct. This could “cause an undermining of authority generally and thus prejudice any further employment prospects of whatever sort in the wake of a reprimand”, they added.

They were “impressed” by the Ministry of Justice’s argument that judges were entitled to a “reasonable expectation of privacy”.

They recognised that disclosure of the data requested by the Guardian would “admittedly … further the interests of transparency and accountability”. However they decided that “enough” information about the “fact and scope” of the reprimands over the past decade had already been made public.

The Ministry of Justice had published information outlining the number of times judges have been disciplined, a description of the system for adjudicating complaints, and broad categories of misconduct committed such as “inappropriate behaviour” and “misuse of judicial status” without giving further details of individual wrongdoing.

Marks rejected the Guardian’s arguments that publication of the misconduct would “enhance public confidence in the administration of justice and that secrecy is more likely to engender resentment, suspicion and contempt than enhance respect”.

The public should know if those who pass judgment on others were being disciplined correctly when they transgressed, the paper said.

The Guardian had also argued that openness would also help to ensure that judges were not persecuted unfairly by ministers.

Following pressure from the Guardian, the Ministry of Justice has pledged to be more open about judges who have been sacked in future.

Beeb’s £250k secrecy bid

I wrote this for the newspapers this weekend (you may have seen it already) but I thought I could give it an airing myself.

A battle by the BBC to keep the salaries of Top Gear and EastEnders’ stars secret from the public has helped clock up legal bills of almost £250,000.

The BBC has been calling on high paid lawyers in a bid to wriggle through a legal loophole which allows it to avoid answering questions under the Freedom of Information Act.

While BBC presenters quiz MPs on their expenses top lawyers are looking to protect exactly the same type of information being disclosed about Auntie’s top shows and stars.

In one expensive court action, which ended in failure for the Beeb, it shelled out £41,530 employing barristers in a bid to keep the costs of EastEnders, Top Gear and Newsnight secret.

It had also used a total of 55 man-days of its own internal legal team to assist the case. Despite defeat the BBC refused to reveal the details, and is now set to risk even more licence payers’ money by appealing the case to the High Court, where a hearing is scheduled to take place at the end of the month.

The BBC is subject to the Act but was given a special “get-out” which it has now used to avoid answering more than 1,200 questions since the law came into force in 2005.

Under pressure Gordon Brown has suggested that he will strengthen Freedom of Information laws and force the BBC to disclose more.

Legal experts take differing views on whether the BBC is interpreting its “get-out”, called a derogation, correctly to avoid answering so many questions.

But if the BBC eventually loses its battle, as many think is inevitable, then hundreds of the secrets of the BBC will get revealed for the first time.

Among the information the BBC currently refuses to disclose saying it is covered by its get-out is:

• How much it spent on accommodation for its staff sent to cover the Olympics in China last year,
• What private companies the corporation’s massive pension fund has invested in,
• The precise number of telephone votes that each couple got in Strictly Come Dancing,
• How much it paid failed England manager Steve McLaren to act as a pundit during Euro 2008,
• How much the BBC spent on the rights to broadcast Formula 1,
• The cost of BBC News maintaining offices all around the world, and
• The cost of flying competitors for BBC’s Total Wipeout to Argentina where the show is filmed.

But the BBC has revealed it spent almost £12,000 on top legal advice before the Act came into force working out which questions it could avoid answering.

Since then it has spent a total of £173,458 trying to keep a sensitive report on its news coverage in the Middle East secret. The case went to the House of Lords and has now been sent back to a lower court for a final decision.

A Freedom of Information expert said: “The BBC has long fallen back on its ‘get-out’ saying that anything for journalism or programming doesn’t fall under the Act.

“But higher authorities have come out with a string of rulings against this leaving the BBC fighting a desperate rear-guard battle.”

A BBC spokesman said: “The BBC notes that the intention behind limiting the inclusion of the BBC under the Act is to protect the independence of the media and to ensure that public service broadcasters are not disadvantaged as against commercial broadcasters.”

If the BBC losses the legal battle it is unlikely it will have to disclose exact details of individuals salaries but it could have to reveal the total cost of wages on a show.

Abortion data Tribunal begins

Anne Widdecombe didn't get the chance of appearing before the Tribunal

The Department of Health (DoH) has gone to an Information Tribunal in a bid to overturn a decision by the Information Commissioner ordering it to release statistics about late abortions.

Anti-abortion group ProLife Alliance had made the initial request to the DoH which had been refused under S.40 (Personal Information) and S.44 (Prohibition on Disclosure). ProLife Alliance appealed the decision and after 11 months the DoH upheld its original verdict to withhold the information.

The Information Commissioner ruled (link) the data could be given out and that there was no proof that just because the numbers were low it led to the identification of a person.

Government officials at the DoH have appealed the ruling and a Information Tribunal has been taking place in London this week, with the verdict expected later in the summer.

The rarity of late terminations for rare medical conditions means release of data about them could cause ‘mental distress or harm’ should a woman realise she was the only one in the UK to have such a procedure, the Government told a London information tribunal.

Geoff Dessen, deputy director of health and wellbeing at the Department of Health, said a balance had to be struck between openness with information and individuals being identified.

In extreme cases in other countries, identification had led to individuals being murdered, he said.

“Just because it hasn’t happened here yet, doesn’t mean it won’t,” he added. “We don’t know the risks.”

Abortion statistics where fewer than ten cases related to a particular condition have not been published since 2002.

DoH lawyer Christina Michalos said the data related to “sensitive, personal and private” medical information involving women who had had a “devastating experience”. Such disclosure could trigger “mental distress or harm” in one-off cases, she said.

“This case is about the protection of privacy, it is not about politics,” she added. “It’s the right of any person to keep their personal medical information private.”

The four-day hearing was originally going to be held in private at the request of the Government but an agreement was reached with the Information Commissioner’s Office to hold part of the hearing in public.

However, The ProLife Alliance was refused permission to call Tory MP Ann Widdecombe to give evidence in addition to a written statement she has already submitted.

Timothy Pitt-Payne, representing the Information Commissioner, admitted the tribunal was dealing with ‘highly controversial subject matter’. However, he stressed that the commissioner was ‘not taking a position on the rights or wrongs of abortion’.

Has the BBC’s derogation died…? Or is it just asleep?

Is the parrot dead or just waiting for his 20 day limit to expire?

A Freedom of Information request which has hit the headlines this week has left me somewhat confused - and perhaps somebody out there can explain it to me.

The Independent broke a story on Monday (June 1) (link) that was followed up by most other media organisations. It was a story about how the BBC had almost ditched Monty Python because they thought it too ‘disgusting’.

The basis for the story is said to be a Freedom of Information response from the BBC.

My confusion stems from the fact that the BBC gives out zero information about ‘programming’ and always applies its derogation saying it is exempt from the Act.

Yet in this case it appears to have given out documents about BBC bosses’ discussions in relation to the future of the programme and the costs associated with it from meetings held in 1970.

If the BBC is now saying that information relating to programming that is more than 30 or 35 years does fall within the scope of the Act then shouldn’t we be told?

Also the memos allegedly state that the cast of Monty Python got £160 per show and £10-a-day during filming. Veteran comic Barry Cryer was paid £26 to warm up the crowd. Isn’t this all personal information subject to a S.40 exemption? I doubt John Cleese or Michael Palin care but if the BBC are opening up the pages of its wages ledger from the 1970s there might be some people who would complain.

I can’t find a copy of the Freedom of Information response on the BBC’s disclosure log, so if anybody can shed any light on why the Beeb felt able to release this info I’d be keen to know.

Are you free to say nothing?

The Freedom of Information Act has a provision in it to allow public authorities to ‘Neither Confirm Or Deny” (NCOD) it holds the information the applicant asks for.

This is because in some cases merely stating that an authority holds information relevant to a request will disclose too much information even if the data itself can be withheld using one or more of the exemptions.

The Information Commissioner’s Office (ICO) give guidance on the subject (link) in which it provides two examples. Firstly an applicant wanting to know if particular surveillance information was held and, secondly a request to know if troops on active service are equipped with a specific type of weapon.

Some recent examples of the so-called NCOD have been ruled on by the Information Commissioner and they may help FoI officers establish when this can be used.

Ken Bigley

Foreign and Commonwealth Office (FCO) [Ref: 50188323] - In this case the applicant asked for any information the FO held on the identification of a voice that is heard - presumed to be the killer - in the video in which British hostage Kenneth Bigley is beheaded.  The FCO argued that if it did confirm or deny (whichever was appropriate), it would effectively confirm that the Government has (or has not) managed to identify those responsible for Mr Bigley’s death, thereby confirming to those responsible that they may, or may not, be under suspicion. The ICO upheld the FCO’s decision to NCOD the information under S.23 (Security Forces) and S.24 (National Security) of the Act.

The home in Forest Gate London that was raided by terror police.

Cabinet Office [Ref: 50137790]

- The applicant asked for information held that related to a raid on a property in Forest Gate, East London, where two suspected terror suspects were arrested - one was shot but survived - and were later cleared of any involvement with terrorism. The Cabinet Office gave the applicant some information, directed him to a number of websites that also held some information but then refused to confirm or deny if it held any more claiming S.23 (Security Forces) and S.24 (National Security). The applicant said it was ‘absurd and an abuse of the Act’ for the Cabinet Office to refuse to confirm or deny that it held the information when it was obvious that it did, since the raid had been in the public eye and the Prime Minister would not have been able to respond to questions about it had the Cabinet Office held no information. The Commissioner agreed with the applicant and said because it was clear the Cabinet Office held information relating to the matter it should have said as much and then if it didn’t feel able to disclose it should have then applied exemptions to it. The ICO also said that it was not good practice to disclose some information and then NCOD if any other information exists. The Cabinet Office has now been ordered to state if it does hold any more information, and if it does to either disclose it or apply any exemptions it feels are relevant.

Plumpton Green

Sussex Police [Ref: 50205686]

- This was an application made on behalf of AsboData, a commercial company that aims to sell information packs to prospective homeowners. Some of the information it intends to sell is gleaned from public authorities using Freedom of Information Act inquiries. In this case it had asked the police for reports of anti-social behaviour in a particular street in the village of Plumpton Green. The police force refused to confirm or deny if it held such information saying that as there were just 15 homes in the street, the area was too small, and to confirm or deny it had such information would be a breach of S.40 (Personal Information). The ICO did not agree and seemed to suggest that 15 homes was not a group small enough to lead to personal data being disclosed. The ICO ordered the police to confirm if such information was held and if so to either disclose it or place the relevant exemptions on it. The decision has now been appealed by Sussex Police to the Information Tribunal.