FoI knocked out by flu

I thought it was people like me in the media who were to blame for the hysteria over swine flu. As far as I understand it, this year’s flu is no more deadly or any more virulent than any other strain of flu. But it appears that when there is a decision to be made between telling the public to throw their tissues away safely or answer an FoI request - its tissue advice every time.

Look at this response to an FoI request. Is it me?

Casino loses gamblers’ data

Losing the personal data of 26,000 gambling club members - not a good day at the office.

When the Information Commissioner reports on those organisations that have lost personal data it has predominantly been limited to the NHS.

Hospitals records, laptops and memory sticks have all managed to go AWOL and the relevant NHS body has had its knuckles rapped.

But this week the Commissioner has ventured into the exotic world of casinos because one of the country’s biggest gaming companies has put its hands up to losing customer data.

Now it’s one thing losing patients’ blood pressure readings but what sort of data would have been held on the laptop belonging to London Clubs International?

The company [website] owns and operates a string of casinos – five in London, and others in Southend, Brighton, Manchester, Nottingham, Glasgow and Leeds – and is well known for pulling in poker players.

It has now confessed to having had a laptop stolen from the data controller’s premises. The laptop contained personal details relating to around 26,000 people. Although the computer was password protected it was not encrypted.

The Information Commissioner did not serve an Enforcement Notice on the casino chain but the company has signed an undertaking to make sure everything is now encrypted and to bring in other security measures to ensure personal data is protected.

According to the company website the casinos have to comply with EU money laundering rules and so require ID from punters before they are allowed in to gamble.

Here is a copy of the undertaking. [link]

Busy autumn ahead for Information Tribunal

A look at the cases in the pipeline for the Information Tribunal shows it is going to be a busy autumn for the court this year.

Hopefully the rulings should put some markers in the sand about what is and is not allowed to be exempted from disclosure under the Act.

The full list of cases has just been updated and can be found [here], but I’ve highlighted a few that I think are potentially the most interesting.

Royal Mail

What is the Post Office's management consultancy bill?

Royal Mail – 10^th/11^th Sept – Here the Information Commissioner ruled the amount spent on management consultants by the Post Office over the last five years should be disclosed despite protestations that the statistics should be covered by S.43 (Commercial Interests). Interesting as I can’t think many FoI officers would agree with the Royal Mail’s position on this one. The Commissioner decision was that the information was not covered by S.43 and didn’t even go on to examine the public interest test IF the exemption had been in play. [FS 50178376]

Department for Business, Enterprise and Regulatory Reform (BERR)

Protestors at the EDO factory

 

 

Department for Business, Enterprise and Regulatory Reform (BERR) – 22^nd/23^rd Sept – This could be a lively hearing in that it relates to the export licences granted to a company called EDO MBM Technology Ltd. This Brighton-based Aerospace Engineering Company, has been the subject of a campaign by local pressure groups who alleged that it had supplied Israel with military aircraft components. There have been a number of demonstrations and protests at the firm’s headquarters. This appeal relates to an attempt by an applicant to get hold of the export licences granted to EDO. The Commissioner agreed with BERR’s ruling on the matter that the information was covered by S.41 (Information Provided in Confidence). [FS 50180838]

Department for Culture, Media and Sport

Department for Culture, Media and Sport – 9^th/10^th Nov – This relates to internal Government memos on its casino policy, which changed a number of times. Here the Information Commissioner rejected arguments that documents should not be disclosed because the were covered by S.35 (Formulation of Government Policy) and S.43 (Commercial Interests). [FS 50160256]

Civil Aviation Authority (CAA)

The CAA has responsibility for ensuring air safety in the UK

Civil Aviation Authority (CAA) – 22^nd/23^rd October – I have written about this case before [Flight of Fancy shot down by ICO] where the CAA is refusing to issue safety reports on a cargo airline. It has claimed a S.31 (law enforcement) exemption but the Information Commissioner kicked that argument into touch saying the CAA had not shown how releasing such documents would prejudice its affairs. [FS 50168527]

Higher Education Funding Council for England (HEFCE)

The student accommodation didn't quite look like the brochure pictures

Higher Education Funding Council for England (HEFCE) – 16^th November – In this case the HEFCE doesn’t want to disclose the database it holds on the make-up and quality of university buildings. It claims the information is covered by a S.41 (Information Provided in Confidence) exemption, but the Commissioner ruled against the authority. Again I have blogged on this case in the past [Uni database to be opened to public scrutiny] and noted the Commissioner ruled the information was not covered by the exemption as there would be no ‘detriment’ to the universities who supplied it. [FS 50188864]

University of Central Lancashire

A student preparing herself for the Homeopathy practical?

University of Central Lancashire – 3^rd/4^th and 5^th of November – Pack your healing crystals and make sure you sleep on lay lines as this one is all about the ‘science’ of homeopathy. This case was brought by real scientist David Colquhoun, professor of pharmacology at University College London, who wanted all the papers relating to its homeopathy course. The university refused claiming the info was covered by S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) S.43 (Commercial Interests) and S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. The Information Commissioner again rejected the University’s arguments and ordered the documents to be disclosed. The university has refused to back down and will now take its arguments to the druids’ court, sorry I mean the Tribunal. This is an interesting case in that it is at the focus of very public battles between so-called scientists and those that have been dubbed ‘bad-scientists’ in that they hold pseudo scientific beliefs. These arguments are now being hammered out in the libel courts and here at the Information Tribunal, which many would argue is not the proper use of these institutions. Again I have written on this topic before at [Details of “Bad Science” BSc to be revealed]. The Information Commissioner’s decision on the case can be found here [FS 50140374]

‘Alice in Wonderland’ ruling from the ICO

Frank Field MP has been left frustrated by attempts to use FoI to uncover alleged fraud at his local hospital.

Veteran Labour MP Frank Field has attacked the Information Commissioner for an “Alice in Wonderland” decision into his attempts to gain access to reports about alleged fraud in his local hospital.

Mr Field was tipped off about a doctor at the Arrowe Park Hospital, in Merseyside, using NHS resources to treat his private patients. He contacted the hospital who admitted there had been some ‘mistakes’ but refused to give him any more details.

The MPs attempts to get any more details were rebuffed by Wirral University Teaching Hospital Trust and eventually the matter landed up on the Information Commissioner’s desk.

Mr Field implies he managed to speed the case ahead of others by “writing a personal note” to the Information Commissioner - but the decision did him no favours.

The Commissioner ruled the Trust should not have confirmed or denied it had such information as it was sensitive personal data covered by Section 40 of the Freedom of Information Act.

A bizarre ruling when looked at from Mr Field’s view as he knows the name of the doctor - he included it in the question - and he knows of the existence of such a report, and he was told by the Trust the doctor had confessed to some mistakes.

However, the Commissioner approaches the decision from the “applicant blind” viewpoint and because the identity of the doctor is not generally known to release it via a FoI request would be a breach of S.40.

Here is the Information Commissioner’s decision [link] and here are Mr Field’s thoughts on the matter:

Beating fraud against taxpayers is difficult. I have been trying to get a proper investigation since September 2007 into an alleged fraud in the NHS.  

A constituent reported to me that they thought their doctor was using the NHS for private patients. I wrote to Arrowe Park hospital in Wirral against whom the alleged fraud had taken place.

In the November I was able to meet the senior executives at the hospital.

I was told at this meeting that the doctor had confessed to errors, and had allowed nearly 100 blood tests for private patients to be sent to the laboratories at Arrowe Park hospital under the cover that they were NHS patients. I was told at the meeting that the doctor had repaid these costs.

I asked to see copies of any reports the hospital had undertaken into this alleged fraud.

I also asked whether the hospital would extend its enquiries into other areas - such as scans and x-rays - to see whether the same mistake of presenting private patients as NHS patients had similarly occurred.

On both fronts Wirral Hospital Trust refused my requests.

In January 2008 I asked for this information under the Freedom of Information Act. After some time the Trust refused this application.

In July 2008 I went to the Information Commissioner who as we all know has done a pretty good job in policing and making this Act effective. The Commissioner is clearly overworked.

Nothing happened for ages. I then wrote a personal note to the Commissioner and only then was a caseworker appointed to my case.

Almost a year later the Commissioner wrote to me refusing my request. The reasoning was straight Alice in Wonderland stuff.

My request was refused because if I laid hands on these secret reports I would have personal information about the doctor concerned.

As the inquiries were looking into alleged fraud, by a doctor whose name I knew as I had referred the doctor to the Trust, this ruling must make the FoI Act a non-starter when efforts are being made to track down fraud against a body which is deeply uncooperative in helping that enquiry.

But worse was to follow. With the refusal came a note about the rights of appeal.

I have appealed against the decision although, given the Alice in Wonderland logic that no personal information can be disclosed, I am not holding my breath.

Worse still, the appeal letter told me I might be liable for the whole cost of the appeal. I therefore raised this matter before parliament rose for the summer recess asking the government to investigate.

I understand why costs might be awarded against an individual who has a record of bringing bizarre FoI claims. But that surely shouldn’t apply to reasonable citizens who are probably making their first application.

And should it apply to members of parliament? I would have had no interest in pursuing this case other than that public funds are at stake.

Was one of the aims of the Act to gag and blindfold MPs attempting to root out alleged fraud?

FoI bugging the bugging watchdog?

Should we be expecting less kick and more water in the future from the OSC?

Tucked away in the Annual report of the Office of the Surveillance Commissioners (OSC) was an interesting nugget for those of us with an interest in Freedom of Information - the quango’s boss Sir Christopher Rose issued an apology for misinterpreting FoI law - but he gave away a much more telling comment about how he intends to deal with the legislation in the future.

Much to annoyance of many people the OSC was not and it appears is in no danger of being brought under the FoI regime. However, its sole duty is to monitor the way public bodies use surveillance and bugging techniques and is responsible for ensuring that authorities allowed to use such powers are not overstepping the line.

The OSC’s staff has a constant monitoring process going on which ensures they regularly produce reports for authorities on the way they have been using surveillance techniques. These reports cannot be obtained under FoI from the OSC because it is NOT covered by FoI.

But what has clearly annoyed the OSC was that those devious people from the media were asking for copies of his reports from the organisations they were then sent to.

A petulant Sir Christopher wrote in his annual report last year:

During this reporting period there has been a significant increase in the number of Freedom of Information requests from the media. It is not usually an area on which I comment but I report my concern. I never disclose the contents of my reports to anyone other than the relevant Chief Constable or Chief Executive. But requests to the recipients of my reports have been aimed at acquiring my reports, my correspondence to and from Chief Officers and the action plans related to the recommendations that I make.

 Responses by public authorities have been inconsistent and there is the perception that a decision by one authority to respond positively may lead the requestor to view negatively those which do not

disclose the information requested. When asked for guidance I have responded that it is in the public interest to demonstrate that covert surveillance conducted on behalf of the State is properly

regulated. This Annual Report is designed to provide that assurance. Seeking assurance of regulation is one thing, but attempting to acquire, under the auspices of freedom of information, operational details or knowledge of covert techniques is another. Redaction of these details from my reports could be misconstrued as secrecy or might adversely affect context and meaning.

 I favour the advice provided by the Information Commissioner (Guidance Note 25). I regard myself as a ‘qualified person’ as defined by Section 36 of the Freedom of Information Act and it is my ‘reasonable opinion’ that for public authorities to disclose the contents of my reports would prejudice the effective conduct of public affairs. The risk of disclosure might tempt some individuals to withhold the full details of covert activities from me or my representatives; it might inhibit my ability to provide the evidence that is necessary to support my recommendations and it might inhibit the free and frank exchange of views and provision of advice that is currently the hallmark of the relationship which my Office enjoys with public authorities.

 However this year he sounds a good deal more contrite:

Last year I commented on the impact of the Freedom of Information Act and the pressure on public authorities to disclose my reports. My intent was to address the difficulty of balancing transparency with the need to protect covert techniques and activity. They are not comfortable bedfellows. In order to provide evidence to support my recommendations, I frequently have to provide detail of

specific investigations or tactics. I protect my reports in accordance with the Government Protective Marking System. Without this evidence and protection, they would be of little value to the authority reported on. Redaction, however, can attract adverse comment. The OSC never discloses the content of its reports to third parties.

 I misled myself regarding section 36 of the Freedom of Information Act. I am not capable of being a ‘qualified person’ within the meaning of that Act. I therefore confirm that the decision whether to disclose my reports, and if so in what form, rests with each public authority. I have promised to review the design of my reports to assist public authorities to meet their obligations.

 What do we think does this last sentence means? Is he admitting that he is going to make sure less information of the kind he does not want disclosed is put in the reports because of the Freedom of Information legislation? Is this the first concrete example of the so-called ‘chilling effect’ where FoI laws actually work to create less openness because people are frightened and wary of disclosure?

 On a final point on this matter it may be that between Sir Christopher’s comments in the 07/08 report and his climb-down in the 08/09 report, the decision by the Scottish Information Commissioner could have had some influence.

 In a judgement against the Scottish Prison Service (SPS) the Scottish Information Commissioner ruled the report of the OSC should be made public subject to a few redactions in particularly sensitive sections.

 The decision notice stated: “The Commissioner does not accept the arguments put forward by the SPS that a statutory body with a defined statutory task, such the OSC, would materially water down the content of reports on the basis that they might be made generally available to the public.”

 It would appear the OSC may have decided he is going to do exactly that in future - should we expect a dilute future from the OSC?

[link to OSC report 07/08]

 [link to OSC report 08/09]

 [link to decision of Scottish Information Commissioner is case of the Scottish Prison Service]

Just four more to join the party

The Government’s consultation of which new organisations should be brought within the Freedom of Information net has resulted in proposals to add just four bodies - and one of those offered voluntarily to join.

So after all the deliberation it is proposed to add academy schools, the university application body UCAS, the Financial Ombudsman Service and the Association of Chief Police Officers (ACPO) to the organisations covered by the legislation.

ACPO volunteered itself for inclusion under the Act.

Those organisations that still sweep under the radar of FOI are:

Utility Companies: Government has said “no” at the moment but said it is attracted to bring them under FoI and will conduct more consultation in the future. So Network Rail still side-steps the Act.

Contractors: Business groups moaned about the unknown costs they would have to factor into prices for the variable expense of answering FoI queries. Government also said “no” to the inclusion of this group but said it would keep the matter under review particularly in relation to private prisons, detention centres and foster homes.

Professional and Voluntary Regulators : (eg. Advertising Standards Authority, The Law Society). “Not appropriate” at present to come under FoI, says the Government. Some bodies complained if they were brought within FoI there members would be less likely to disclose as much to them for fear it may eventually be broadcast to a wider audience under FoI.

Charities: It was felt the cost of charities complying with the Act would take money away from the charitable causes.

Academies: Academy schools to be included just like normal Local Education Authority funded schools. Private schools will still operate outside FoI.

Conservative justice spokeswoman Eleanor Laing said: “This Government has revealed their total contempt for greater transparency by only considering to extend the Freedom of Information Act to just four new bodies.

“Hard-pressed taxpayers are pouring money into our nationalised banks and unaccountable quangos, such as regional assemblies, yet these will remain clouded in unacceptable secrecy.”

The extension of FOI legislation announced by Mr Straw was described as ”a useful but disappointingly modest result”, by the Campaign for Freedom of Information.

The Campaign had argued that private health bodies providing surgical or diagnostic services under the NHS should be subject to the Act as should providers of social care services and educational and criminal justice services.

Government “bully” a “toothless” ICO

I smile when I hear this Government insisting that it is committed to openness about its own behaviour (MPs’ expenses, Iraq inquiry passim). This is partly because I was a member of the senior Civil Service when the Freedom of Information Act was formulated in 1999 and I remember all the whispered discussions about how to circumvent it (never write anything down, don’t keep minutes of sensitive meetings), and partly because I have just emerged from a gruelling battle to make use of Britain’s information laws and have found the odds stacked firmly against me.

Martin Sixsmith

The following article is reproduced from the Times and tells the story of how former BBC journalist and Government press officer Martin Sixsmith has battled to get the information behind his departure from Whitehall. As you will see he is less than impressed with the Information Commissioner’s Office, which he describes as “understaffed, cowed and demoralised” with staff that are “stressed, overworked and scared of challenging the Government”.

My Whitehall stint ended seven years ago after Downing Street tried to blame me for the misbehaviour of Stephen Byers, the Transport and Local Government Secretary at the time, and his spin doctor, Jo Moore.

The Government eventually made a public apology to me and paid substantial compensation, but I was curious to find out who had picked me as a scapegoat, and who had led the smear campaign against me when I refused to go quietly.

So in April 2006 I filed a subject access request for all the information the Government held on me and expected to get it within the 40-day deadline specified by the Freedom of Information Act. Some hope. The Government didn’t even reply within 40 days let alone provide the data.

When I asked why it was not sending me the information, I triggered a mildly surreal sequence of excuses that went on for two years: we have faulty IT equipment; manpower shortages; new priorities; “I am on holiday in France, R. Smith, Data Controller”; pressure of other business; change in IT supplier; the need to consult widely; Christmas leave commitments; third-party interests; concerns over data security … I was patient and polite, but I was being fobbed off. I complained to the Information Commissioner’s Office (ICO), which enforces the information laws, and it replied that the Government “is likely to have contravened the Act”. Months went by and I heard nothing more.

When I rang, the ICO said that it had mislaid the case file. I asked for a meeting. At ICO headquarters in Wilmslow, Cheshire, I found an understaffed, cowed and demoralised organisation with nothing like the clout and resources the job demands. Staff members told me that they were stressed, overworked and scared of challenging the Government (which pays their wages).

Around this time, a friend in the Civil Service informed me that ministers were holding discussions about destroying the information I had asked for, potentially a criminal offence. When I asked about this, the Government’s departmental knowledge officer, Richard Smith, wrote: “No information is held relating to discussions or correspondence regarding the provision or non-provision of the information you requested.”

But I later discovered that he wrote on the same day to another official: “We have needed to consult widely on this request because of the nature of the data we hold … Please regard this as confidential and not for passing on to Martin Sixsmith.”

I urged the ICO to demand that the Government hand over the data. The ICO threatened enforcement action, but the Government did not reply. So the ICO set another deadline, which the Government also ignored. When the Government failed to meet a third deadline, the ICO moved it back again.

It was clear that the Government was accustomed to bullying and ignoring a toothless ICO, and that the ICO had no stomach to take it on. It was not until September 2008, after some vigorous lobbying from me, that the ICO finally agreed to issue an enforcement notice. Surprise, surprise, the Government still refused to comply and the case was sent on appeal to the Information Tribunal, the FoI equivalent of the High Court.

I thought that I was getting somewhere now, but if the ICO was bad, the tribunal officials were worse: communications from its proper officers were shambolic, contradictory and semi-literate.

When the case opened at Crown Chambers in the Temple, the Government was calling the shots. I requested that proceedings be held in public, as permitted by the act, but the Government’s QCs harangued the chairman into closing the doors, and the public (including me) were locked out.

I asked how much taxpayers’ money had been spent contesting the case - the Government was represented by two QCs, the ICO by one, and the panel of judges included a further two QCs - but I was told that it was not in the public interest for me to know this. One of the lawyers told me later that the figure was in the hundreds of thousands of pounds.

The information I was seeking had no bearing on national security but, because it was politically embarrassing, the Government was prepared to spend three years and substantial public funds to keep it secret. If I weren’t so bloody-minded, the ICO would have caved in and the Government would have got away with it.

But last month, three years after it all began, a heap of documents landed on my doormat. They are heavily redacted, but they show that senior civil servants backed up the view that Stephen Byers misled Parliament and that it was Alastair Campbell who circulated false information about me.

Campbell’s language is delightfully choice: it might turn up in the rantings of Malcolm Tucker in the next series of The Thick of It.

I am still trawling through the contents of the documents - they will provide a story for another day - but for now the lesson is clear: there is no truth in the rumour that the Government has embraced openness and honesty.

Martin Sixsmith is a writer and journalist and a consultant on the BBC TV series The Thick of It. His next book, The Lost Child of Philomena Lee, will be published in September.

And here is a response from the ICO in a letter to the Times.

Sir, The Data Protection Act (DPA) gives everyone important rights, including the right to obtain information held about us by our employers. Martin Sixsmith’s subject access request - made under the DPA, not under the Freedom of Information Act as he suggests - took far too long (“The information watchdog without any teeth”, Opinion, July 14).

All employers should respond to subject access requests within 40 days. The employer chose not to comply with his request and Mr Sixsmith used his information rights to complain to us at the Information Commissioner’s Office.

As a public body, the ICO aims to resolve complaints wherever possible on an informal basis which works in the vast majority of cases.

Unfortunately, we could not find agreement between the two parties. Therefore our enforcement team had to take formal action serving notice on the employer that Mr Sixsmith had a right to the information. Inevitably, this takes much longer.

Simon Entwisle Chief Operating Officer Information Commissioner’s Office.

NHS losing yet more patient data

Carry on Data Loss?

Yet more NHS Trusts have been sent to the headmaster’s office for the slipshod way they deal with sensitive personal data.

This has been a recurrent theme this year and it would appear that the Information Commissioner is having a concerted push at NHS data security. Some might say it is like shooting fish in a barrel.

So far this year a total of 21 NHS executives in England have had to sign formal undertakings to promise to stick the letter of the Data Protection law.

The latest culprits are:

Surrey and Sussex Healthcare NHS Trust: A ward handover sheet containing the details of 23 patients was found discarded on a bus. Two computers, that were password protected, but contained the details of 80 patients were stolen from an area that was protected by three locked doors. Staff were said to have poor knowledge of the need to store data on network drives.

Royal Free Hampstead NHS Trust: A disc containing the details of 20,000 patients from the Cardiology department disappeared. The staff member responsible is said to have downloaded the data, of patients treated between 2000 and 2006 - but took five months to inform the hospital after the unencrypted disc disappeared. Where the disc is, how it was lost and exactly what it contains is unknown.

Hampshire Partnership NHS Trust: An employee attending a conference in London had their laptop stolen from the hotel. It contained the details of 349 patients and 258 staff. The laptop was not encrypted.

Epsom & St Helier University Hospitals NHS Trust: The Information Commissioner was brought in after a press report relating to the insecure handling of a  large quantity of patient records. An investigation found the records had been left in an room that was often unlocked after being moved from one site to another. Following a root cause analysis report by the Trust the Commissioner was still concerned the Trust appeared to have failed to recognise the staff training issues, equipment and resources factors, individual knowledge and skills areas, organisation and strategic issues and the question of culpability in respect of this breach.

Chelsea & Westminster Hospital NHS Foundation Trust: An unencrypted USB memory stick that held the personal data of 143 patients who attended a walk-in clinic at the hospital was stolen from an unattended and unlocked office. The memory stick belonged to the employee holding the clinic and was not password protected. The Trust employee was not aware that secure network drive and encryption facilities were available and used their own memory stick because Trust equipment was not available. It was also discovered that the Trust employee had used the memory stick and their own computer for home working.

ICO’s top man in Ireland suspended

Aubrey McCrory

Mystery surrounds the reasons why the Information Commissioner’s most senior official in Northern Ireland has been suspended from his job this week.

BBC News reported that it is alleged Aubrey McCrory engaged in inappropriate conduct (whatever that might be) within his Belfast office.

Aubrey McCrory was appointed assistant commissioner for the Information Commissioner’s Office (ICO) in Northern Ireland just over a year ago.

As head of the Northern Ireland office and an Assistant Commissioner it is believed he is paid around £58,000 per year.

A spokesman for the ICO said: “We can confirm that Aubrey McCrory, assistant commissioner for Northern Ireland, has been suspended on full pay pending an internal investigation into some allegations concerning his conduct.

“We stress that this suspension is a neutral act, with no presumption of guilt or innocence.

“To avoid prejudicing the investigation, we will offer no further information at this stage.”

His bio on the ICO’s website says: “Aubrey joined the ICO’s Belfast office in 2008 after working in improvement and regulatory roles covering central and local government, and private sector consultancy. Previously, he was a deputy director in the Equality Commission’s Policy and Development Division, with specific responsibility for the statutory equality duties. Aubrey has an honours degree in politics and public administration, a Master of Philosophy in conflict studies and a Master of Science in research methods.”

Police ordered to pay £1,000 to FoI applicant

The Sweeney. The rules of the game have changed a bit since their day.

Northumbria Police Force has been ordered to pay £1,000 in costs to a man whose Freedom of Information request ended up at the Information Tribunal.

The Tribunal ruled that Northumbria Police could have prepared for the case better which would have assisted the smooth running of the Tribunal.

The applicant, Dr Peter Kelway, was partially successful in his appeal to the Tribunal on the Freedom of Information matter and then lodged an order for costs claiming £26,000. He made the claim against both the Information Commissioner and Northumbria Police.

Under Rule 29(1) of the Information Tribunal Rules 2005 costs can be awarded if against the appellant or Commissioner if it is felt the appeal or disputed decision was manifestly unreasonable, or where the Tribunal considers a party has been responsible for frivolous, vexatious, improper action, or a failure to comply with a direction or any delay which with diligence could have been avoided.

In its summary the Tribunal said it was loath to award costs in normal circumstances stating: “The Tribunal’s power to award costs under rule 29 is discretionary. The Information Tribunal rarely awards costs. This is not only because of the limited powers under rule 29 but because of the overriding objective of tribunals to provide low cost, prompt and informal justice and that costs should not be seen as a deterrent to parties using tribunals.”

But in this case it decided that some costs should be awarded saying: “The Tribunal has considered all the evidence and submissions by the parties and finds the delays in compliance with some directions could have been avoided by the Police with due diligence, but that ultimately this did not prejudice the proceedings. However it did cause Dr Kelway to expend additional time on the preparation of his case. We also find that to some extent Dr Kelway contributed to the delays because of the way he dealt with matters but we take into account that he is a litigant in person. What we find surprising is that the Police who are used to court proceedings and are represented by senior counsel in this case did not cope better with Dr Kelway and there was no real excuse in this case for not promptly complying with directions and co-operating more fully with all the parties.”

The Information Commissioner did not have to pay any costs.

It would appear (and I’m happy to be corrected) that the only other case in which costs were awarded following an Information Tribunal were in the case of Bowbrick v Information Commissioner and Nottingham City Council [link] in which the Tribunal were critical of the way the council dealt with the request and ordered it to pay all the costs incurred by the applicant. The total figure hasn’t been disclosed as far as I can see so I am asking Nottingham City Council [link] on WhatDoTheyKnow.  

Details of this costs hearings can be found [here] and the original Information Tribunal is [here] .