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  • Nice work if you can get it

    Posted on August 29th, 2009 admin No comments
    Well worth the money.....

    Well worth the money.....

    When the employees at the Information Commissioner’s office next look up from their in-trays to wonder why the Ministry of Justice so openly underfunds its illegitimate offspring in Cheshire they might want to ponder on modern art.

    Because while they gather round the coffee machine looking for small change the people who hold the purse strings in London have just splashed out £118,000 on a modern art sculpture for its HQ.

    This work which the artist describes as a “monument to uncertainty and infinite possibility” was just one of four pieces specifically commissioned for the MoJ.

    We know how much it cost because the Department of Culture, Media and Sport capitulated in their attempts to keep the prices it pays for artwork secret and now publishes them in an annual report [link] – something it didn’t do before the Freedom of Information Act came in and something they tried to oppose, claiming it should be covered by the S.43 (Commercial Interests) exemption.

    I know this because it was I who took the case to the Information Tribunal in relation to an art installation at the National Maritime Museum. It was one of the first Tribunal cases in the country and the cowardly Commissioner was against me claiming the information was covered by S.43.

    Fortunately the Tribunal panel could see the immaturity of the Commissioner’s argument and sided with me saying S.43 was not even engaged so they didn’t bother to go on to consider the public interest argument.

    The artist whose piece of work was at the centre of that argument in front of the Tribunal was Conrad Shawcross, who is later emerged got paid around £20,000 for his collection of wooden hoops called Continuum, which were described as a “wooden spring like structure…moving through itself in perpetuity”.

    Getting back to the MoJ, guess who is the artist behind the curious heap of wood in its coffee room…. yes you’ve guessed it, Conrad Shawcross.

    Conrad with his "cheap by comparison" collection of hoops at the National Maritime Museum

    Conrad with his "cheap by comparison" collection of hoops at the National Maritime Museum

    What better proof could you have that S.43 didn’t harm the commercial interests of Mr Shawcross. In 2004 he flogs a selection of wood to a publicly-funded museum for £20,000 and then three years later he sells another collection of wooden pieces for £118,000. I would say it is quite clear Mr Shawcross didn’t need the protection of S.43 and the Tribunal were right.

    You can find the Information Commissioner’s decision on the case [here] and the Tribunal’s ruling on it [here] . If you’d like to know more about Mr Shawcross click [here] for his art or [here] for his wiki entry.

  • If…you can find a court record while others….

    Posted on August 27th, 2009 admin No comments
    Is a person's record of conviction open to the public for inspection?

    Is a person's record of conviction open to the public for inspection?

    I have always been an advocate of a central, publicly accessible database of the criminal convictions of everybody in the country.

    Mainly this comes from my experiences as a court reporter, being sent by a local paper to cover the magistrates court. Often I would find myself in one courtroom covering what was perceived to be a “good” case while other defendants were being dealt with in the other courts.

    What you ended up with was the people who were unlucky enough to have me in the courtroom with them found themselves plastered all over the paper, while those in the other courtrooms were able to slink back into anonymity.

    Why should it be that the experience of the local court reporter, and the financial and editorial priorities of the local paper determine which criminals have their convictions known to the public, and which manage to keep them secret?

    This quirk in the criminal justice system has been exposed in an Information Tribunal ruling where John Carleton was attempting to find out from Worcester Magistrates’ Court the fate of a relative who had been before the JPs.

    His attempts to obtain the record from the court were unsuccessful, and even after paying £25 to the court, the information was still not made available to him.

    A Freedom of Information Act request was lodged with the Ministry of Justice (MoJ), which has responsibility for Her Majesty’s Court Service (HMCS), but it was turned down on the basis that it could not confirm or deny it held the information.

    The Information Commissioner then took almost two years to uphold the MoJ’s decision although it was noted that it could have assisted the applicant more in directing him towards another piece of legislation that may have allowed him access to the court register.

    When the Tribunal considered the verdict in upheld the view of the Commissioner, but it did however point out the strange situation the law has got itself in over the matter of court records.

    It said: “The Tribunal notes that there are apparently anomalies created by the current Freedom of Information and Data Protection legislation in this area and which are mentioned briefly below.

    “If the Appellant, as a member of the public, had attended the court on the relevant date there is no reason to suppose that he would not have been able to hear all the information that he was requesting because it would have been part of the normal, public court proceedings.

    “If the Appellant had found out that the press or the media had covered the case and was able to get a copy of the newspaper report or media broadcast then – although the personal data in question would have been processed by becoming part of those reports – the Appellant would have had legitimate access to the information and the personal data he was seeking.

    “If the local newspaper or media outlet put the court report within a webpage on the internet or as a “podcast” to be downloaded by the Appellant – whether there was a “search” facility on the site allowing specific names or topics to be highlighted and retrieved or not - and then viewed, printed out, played or stored, then all of that is legitimate processing of personal data within the current statutory legislation.”

    The Tribunal has asked for this situation to be communicated back to the MoJ – but don’t expect any swift changes in the law. As for the applicant Mr Carleton, presumably he still doesn’t know what happened to his relative on that fateful day at Worcester Magistrates’ Court. He says that he wants to information so that he could help out his relative financially. The ruling doesn’t explain why he couldn’t just ask his relative.

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

  • What became of the drink-drive policemen..Part II

    Posted on August 27th, 2009 admin No comments

    UPDATE: For those that remember entry What became of the drink drive policemen…. well Dumfries and Galloway Police have coughed up their response.
    The two officers, who were convicted of drink-driving, were indeed made to resign from the force.
    Here is a copy of the police force’s response to the applicant after the decision of the Scottish Information Commissioner.

    Letter from Dumfries and Galloway Police Force

  • A tale of two public authorities

    Posted on August 21st, 2009 admin No comments

     

    Happy days for the residents of Southampton

    No relevance to story other than it links to Southampton

    University of Southampton:

     They say that knowledge is power and in that statement is the root of the friction which Freedom of Information officers often feel from senior executives within the organisations where they work. Public authorities, and most particularly Government Departments, now have to work under a new mindset whereby they do not have power to determine to disclose or release their information.

    And once information is disclosed to one applicant under FoI it can be disclosed to the whole world, stuck on lamp-posts and projected up against the side of the Town Hall.

    Yet some authorities find it difficult to let go and make desperate attempts to convince the applicant that should they do anything with the data the sky will fall in on them.

    One new example of this is the incredible lengths that Southampton University are going to in telling an applicant what he can and can’t do with the information supplied to him under the FoI Act.

    It would appear from the University’s replies that have been posted on WhatDoTheyKnow that previously responses were sent out password protected.

    Now, however, they have altered their position slightly so that applicants have to tick saying they are the applicant and they agree by the copyright statement, which couldn’t be printed in bigger font.

    Have a go yourself here.

    University of Southampton’s FoI response

    As you will see they have also taken the bizarre decision to watermark the response with the e-mail address of the applicant. Why? What possible purpose can that serve?

    Anyhow I am asking the University of Southampton what legal discussions and advice it has had in developing its format for releasing information. [link] .

    And just in case Southampton want to attempt to sue me under copyright law the information in the applicant’s response was that it charged its poor students £64,762 for taking re-sits in 2007/08 and £125,665 for the same thing in the 2008/09 financial year.

     

    Robin in Da Hood should've asked for costs as well.

    Robin in Da Hood should've asked for costs as well.

    Nottingham City Council, which does not have a glorious history in the few short years since the Freedom of Information Act came into force, has now revealed it paid an applicant £8,000 in compensation after making a hash of his request.

    When the Information Tribunal ruled against the Council in a decision relating to information about a school the panel made some withering comments about the City Council’s approach to information disclosure.

    So unhappy was it with the way the council had approached the matter that it said costs should be awarded to the applicant.

    Following my Freedom of Information request to the Council [link] we can now see the council’s response in which they admit the full cost of this compensation to Dr Bowrick was £8,000.

    Nottingham City Council’s FoI response

    The Tribunal’s comments following the hearing included: “Quite frankly the Tribunal is dismayed at the way the Request has been handled and the conduct of the Council since the commencement of this appeal. The Council appears to have misled Dr Bowbrick and then the Information Commissioner during his investigation.”

    After the case was settled the Information Commissioner conducted an investigation at Nottingham City Council and issued a Practice Recommendation against the authority.

    nottingham_city_council_practice_recommendation

    It would appear there is still some work to do at Nottingham as the answer to my question was late and as far as I can see failed to answer the second part of how the costs were broken down.

  • University fund raising ruled NOT a “commercial activity”

    Posted on August 19th, 2009 admin No comments
    Would you let this man give you £2.5m?

    Would you let this man give you £2.5m?

    Although my instincts as a journalist mean I am reluctant to side with public authorities when they refuse information requests, a recent decision in relation to Oxford University has made me look at things from the other side of the fence.

    The Information Commissioner’s decision notice makes what I consider an incredible assault upon the protection of S.43 (Commercial Interests).

    The case relates to a £2.5million donation given to Oxford University by Hong Kong entrepreneur Dr Stanley Ho to set up a new University Lecturership in Chinese History.

    A request was made for information from the University’s Donations Acceptance Review Committee (DARC) held on the suitability of the donation from a man otherwise known as “The King of Gambling” and who according to Wikipedia is Bruce Lee’s cousin. [link]

    At first the University just gave the applicant standard material on how it considers donations and did not release the specific minutes of the meetings it had when it was considering Dr Ho’s proposed gift.

    Eventually the University said the information in question – its internal discussions about the suitability of Dr Ho as a benefactor – were exempt from disclosure as they were subject to S.43 and S.40 (Personal Information).

    In relation to S.43 the University claimed to release information would be a deterrent to other potential donors and so had the likelihood of prejudicing its commercial interests.

    But, and some might think this surprising, the Information Commissioner said the S.43 exemption was not even relevant to the issue. The decision notice stated that fund raising for the University was NOT a commercial activity and therefore the information could not be protected by the exemption.

    Josie Ho, the benefactor's actress daughter

    Josie Ho, the benefactor's actress daughter

    The Commissioner said: “In the Commissioner’s view a commercial interest relates to a person’s ability to participate competitively in a commercial activity, i.e. the purchase and sale of goods and services. The University is, broadly speaking, not a profit making organisation, the provision of higher education as a public service (albeit for a fee) is its underlying motive. Moreover, the services are paid for out of the public purse and supplemented by private donors. In providing higher education, the University’s survival is not dependant on its ability to generate its own funding and therefore the need to be commercially competitive is not a paramount consideration in the sense one would expect of a privately funded organisation.

    “The release of the information in this case may or may not affect the University’s ability to raise future funds, but this is not a commercial activity albeit that it may be a financial interest. In view of this the Commissioner does not consider the applicable interests to fall within section 43 and therefore he has concluded that the exemption was incorrectly relied upon by the University to refuse access to the information requested. In light of this conclusion it is not necessary to further consider the nature of the prejudice in this case or the likelihood of it occurring.”

    Bruce Lee. Stanley Ho's cousin?

    Bruce Lee. Stanley Ho's cousin?

    The S.40 arguments were also turned down by the Commissioner. He stated that much of the information was already in the public domain [link] and that Dr Ho could not have had an expectation of privacy when the academic post funded by his donation was to be named after him.

    Just like the recent case I blogged about in relation to Dumfries and Galloway Police [What became of the drink-drive policemen...] the Commissioner had to rule if the disclosure of the information was for a “legitimate interest”, was it “necessary” and would it not cause “prejudice” to the rights of the data subject.

    Like the policemen case the Information Commissioner ruled that S.40 did not provide protection. Some of the key factors were the panel were assessing Dr Ho mainly on the basis on material in front of it that was already in the public domain.

    In summary the Commissioner said: “The Commissioner recognises that the withheld information itself is not in the public domain and that disclosure would reveal exactly what the University considered when vetting the donation. In the Commissioner’s view revealing which aspects of publicly available material the University opted to use would not result in unwarranted prejudice to the donor’s rights and freedoms. Nor does he think that revealing the material that was internally generated by the University rather than obtained from public sources would have this effect. In particular he does not consider such information to be particularly free and frank or to reveal anything that would be detrimental to the donor.”

    You can see the full decision notice here [link] and I have also asked for the material the University has been asked to disclose on WhatDoTheyKnow . However, I wouldn’t hold your breath as I imagine there are sure to be a few people prepared to challenge the Commissioner’s somewhat strict interpretation of what is commercial activity.

    UPDATE: 16.9.09. Not unexpectedly the University refuse to release the information and state they are lodging an appeal at the Tribunal.

  • Working on the chain gang…..

    Posted on August 18th, 2009 admin 1 comment
    Paul enjoys a life in the sunshine rather than the 'hell' of the jail's Information Governance team.

    Paul enjoys a life in the sunshine rather than the 'hell' of the jail's Information Governance team.

    The Ministry of Justice has suffered an embarrassing failure to uphold the S.43 (Commercial Interests) exemption in a dispute over contracts for prison labour.

    Although chain gangs may be a thing of the past prisoners in England do have jobs for commercial organisations managed through the jails where they are held.

    An attempt by a Freedom of Information requester to find out who these contracts were with and how much they were worth was rebuffed by the Ministry of Justice (MoJ) on the basis that the data was subject to S.43.

    The Information Commissioner was eventually called in to rule on two parallel appeals on the subject, one relating to ten prisons and the other relating to eight jails.

    In both cases the Commissioner ruled that S.43 should not have applied to the information and so didn’t even have to go on to consider the public interest test.

    He also made critical comments about the amount of time the MoJ took to deal with the internal reviews in both cases – more than 190 working days in one of the cases and more than 250 working days in the other.

    On the topic of S.43 the public authority stated in its internal review notice that: “… the likely consequences of the identification of companies holding contracts with prisons will include loss of business, lay-offs of workers, becoming the subjects of campaigns against the use of prison labour and adverse publicity, all of which we feel would prejudice commercial interests, as has happened in other cases.”

    It also claimed that in one case the end customers did not know it was prisoners who were the labour force behind the product and if they found out they might cancel the contract.

    A whole host of arguments were put forward by the MoJ in an attempt to justify the S.43 exemption. It claimed the prisons could lose money if contracts were cancelled, the contractors would be put at a disadvantage to competitors, and contractors might have to lay off non-prison staff.

    However, the Information Commissioner ruled against all these arguments and said the exemption was not even engaged, especially as the information requested was not particularly specific in terms of the actual contract, such as the number of prisoners employed etc.

    Although the MoJ did not rely on S.38 (health and safety) the Information Commissioner went on to consider it, in relation to non-prisoner employees of a company using jail labour.

    The Commissioner said: “Whilst the Commissioner understands that a contractor has a duty of care to its staff and notes its concerns, he can find no evidence to support its stance that its staff may be put at risk by disclosure of the information requested in this case in particular, or by public knowledge of its involvement with prison labour in general. Although there is information available on-line to suggest that a well known retailer was targeted by parties who were against the association they claimed it had with prison workers, there is nothing to suggest that any harm or damage was done to its staff. There were a number of demonstrations, along with picketing and leafleting, and although it appears that some persons were ‘moved on’ by the police the Commissioner can find nothing to suggest that there was any further action than this.”

    A group called Campaign Against Prison Slavery says inmates get paid around 30p an hour and have compiled a list of companies with contracts with jails in England [here] and Scotland [here] .

    I have asked the Ministry of Justice to provide me with the details that should now be released and you can see the question [here] on WhatDoTheyKnow.

    And the two decision notices can be seen [here] (relating to eight prisons) and [here] (relating to ten jails) .

    This request was sent in by journalist Phil Chamberlain (see the comment) who has blogged about this topic [here] where you will find a link to articles on the Guardian as well as his own website devoted to investigating prison labour [link] .

    Ministry of Defence: The Information Commissioner has issued a Practice Recommendation [link] critical of the time taken by the MoD to complete an internal review. The MoD seems to have particularly annoyed the Commissioner in that it has taken 40 working days as its target for dealing with internal appeals when this figure is in fact an exceptional allowance – the normal figure being 20 days. However, even using the 40 day limit statistics from the MoD showed 60% of appeals were not dealt with by the expanded timeframe, and in one case a requester had to wait 190 working days for an internal review to be resolved.

  • Islands celebrate launch of FoI

    Posted on August 17th, 2009 admin No comments
    Why do people in the Caymans need an extra 10 days to respond to a FoI request?

    Why do people in the Caymans need an extra 10 days to respond to a FoI request?

    As our “barbeque summer” disappears down the storm drain I thought people might want my blog to take them somewhere a little more exotic this morning – so we are off to the Cayman Islands.

    Despite having all the sun and sand imaginable it would appear that lives for the islands residents have just got even better – with the introduction of their own Freedom of Information Act.

    It came into force in January, its Information Commissioner Jennifer Dilbert has issued her first decision notice and the similarities with the way the progression of the Act happened in the UK are uncanny.

    Staffing levels at the islands’ Commissioners office are something of a problem. Although the Commissioner has one admin staff and recently employed an Assistant Commissioner there had been a moratorium on hiring other staff – and guess what “The Commissioner notified the public in the form of a press release that, due to her inability to properly staff the office, they might experience delays in processing appeals.”

     

    Life is a little more relaxed in the Caymans and public authorities there have 30 days – not 20 – to respond to an FoI inquiry.

    It would appear that the islands’ media are some of the keenest user of the new Act and they are responsible for the first decision notice relating to the pay levels within a Government Department.

    The media wanted the names, job titles and salaries of individuals within the Government Information Services (GIS). The authority had refused and Ms Dilbert had to step in.

    She ruled that the most senior officers salaries should be disclosed but that employees lower down the ladder should be protected. Other employees salaries could be given within $10,000 bands. A decision with uncanny similarities to those issued in this country.

    Other issues the commissioner has been asked to consider are:

    • a request from the media for water quality tests results relating to sewage treatment works,
    • a wrongly convicted man wanted additional information about the Government’s decision to compensate him for his incarceration – it was ruled there were no extra documents in existence,
    • if the local police force should be allowed a time extension to consider a question about official policy to the islands’ officers ‘moonlighting’ with second jobs,
    • the media was told it would have to wait for an official report to be published before it could see figures relating to the health of the pension pot for the islands’ civil servants.

    It appears Ms Dilbert is coming over to the UK in September to visit the offices of the Scottish Information Commissioner – pack a waterproof.

    For those interested in the operations of Cayman Islands FoI legislation the office can be found [here] . I believe all the jobs have gone!

  • Public row follows ACPO conference speech

    Posted on August 14th, 2009 admin No comments
    Richard Thomas - Going out with a bang

    Richard Thomas - Going out with a bang

    Those of you who attended the Association of Chief Police Officers (ACPO)s Information Rights conference in June were in on the ground floor on the start of a row between the outgoing Information Commissioner Richard Thomas and the head of the Independent Safeguarding Authority (ISA), the organisation that will soon be charged with holdings data on millions of people in a bid to keep children and vulnerable adults safe.

    Richard Thomas publicly expressed his annoyance at the ISA during his speech at the conference and this obviously annoyed Sir Roger Singleton who is in charge of the organisation. He wrote a letter to Mr Thomas asking him to withdraw the remarks only to get a response almost immediately saying he wouldn’t.

    I’ve got hold of the the exchange of letters between the ISA and the Information Commissioner’s Office which are below along with a more detailed story.

    Say sorry letter from the ISA

    Three letters between the ICO and ISA. Final one is from Richard Thomas stating he will not withdraw his remarks

     

    The bosses of the massive new ‘child safety’ database brought in after the Soham murders of Holly Wells and Jessica Chapman has come under attack from the Government’s Information watchdog.

    The Independent Safeguarding Authority (ISA), which will hold a mass of information on 11million people who work with children and vulnerable adults, has been criticised for being “ill-prepared” and the Information Commissioner says he has “grave concerns” about the way it will operate.

    Top children’s authors such as Golden Compass writer Philip Pullman have also attacked the ISA, which will hold records on volunteers and professionals, saying the scheme goes “too far” and forces people “to clear their name from something they haven’t done.”

    The war of words between the two Government bodies has developed into a full blown hissy-fit with each organisation claiming they are the ones in the right and each claims they are waiting for a response from the other side.

    In an exchange of stinging letters the ISA is warned by the Information Commissioner that the huge database could:

    • Create a major incident if there is a security breach in the system,
    • Be open to abuse from staff within the ISA if there is no way of tracking the activity of the database operators,
    • Cause major controversy in that it will include allegations and suspicions of wrong-doing rather than just facts such as criminal convictions,
    • Become swamped by individuals making a request to see what is on their personal record.

    Last month the out-going Information Commissioner Richard Thomas, said: “The database would contain allegations, some rumour and some speculation. If officials start making wrong decisions or allow the data to get into the wrong hands the scope of the damage done both to individuals and the system as a whole is quite considerable.”

    His comments upset the ISA chairman Sir Roger Singleton who asked him to withdraw the comments.

    Mr Thomas hit back in a letter saying: “For over six months we have been trying to obtain information about how your data protection responsibilities will be fulfilled.

    “My previous letter expressed my ‘strong concerns’ about the delays and sought reassurance that there is not a lack of preparedness within the ISA. I outlined the major concerns which I regard as a priority.

    “Given the imminence of the launch in October, my letter concluded by seeking a response as a ‘matter of urgency’.

    “Two weeks after my letter I had not received even an acknowledgement, let alone a full response or the requested information.

    “In the circumstances I regret that I am unable to agree to your request that I should withdraw the comments that I made.”

    In an earlier letter Mr Thomas had moaned: “I am writing to express my strong concern about substantial and continuing delays in providing my Office with information about the proposed operations of the ISA.”

    A statement the ISA said: “The ISA assumed it had an on-going and productive dialogue with
    the Information Commissioner’s Office (including face to face meetings). Therefore the ISA was disappointed with the comments attributed to Mr Thomas, which indicate that he had some concerns with the ISAs response to his correspondence.

    “The Chief Executive of the ISA has received one letter from the Information Commissioner (27th May 2009) and responded in full on the 12th June 2009. 

    “We have written to both Information Commissioner and Deputy Commissioner, to have these comments clarified and to highlight the positive work that has so far been undertaken by the ISA with the Commissioner’s Office - which we hope will continue. We are currently awaiting a reply.”

    Guy Herbert, General Secretary of anti-state database pressure group NO2ID, said: “That one of the government’s many voracious data-collection agencies is incapable or unwilling to meet the requirements of the government’s privacy-enforcement agency is, sadly, entirely predictable.

    “The ISA will make an institution out of ruining lives and careers with third-hand speculation and gossip. It will create a corrosive atmosphere in which everyone is guilty and must prove themeselves innocent.

    ” There is no evidence that a byzantine database containing, in this case, inaccuracies, half-truths and rumour will do anything to protect the groups it purports to defend.

    “The ISA and databases such as the National Identity Register and children’s database ContactPoint will - far from reducing risks - become enormous security risks themselves: huge repositories of information open to criminal hacking, insider fraud, data corruption and error.”

  • Keep Calm and Carry On

    Posted on August 13th, 2009 admin 1 comment
    Another average day for a FoI officer

    Another average day for a FoI officer

    The Information Commissioner has issued a plea to FoI officers: Stay calm, ignore confrontational tone and keep your objectivity.

    His statement comes in the wake of a decision notice against Brighton and Hove City Council where the authority was said to have been distracted by the accusations made against it in the applicant’s question.

    The issue centred on the vexed issue of parking in Brighton and the official wording on parking tickets.

    In his decision notice the Information Commissioner said the authority responded significantly outside the statutory time limits, and concentrated on rebutting the allegations rather than providing a comprehensive response to the request.

    The applicant had asked:

    • Given that Parliament saw fit to pass a statute that prescribed the wording of Penalty Charge notices, why did the Council not comply with that statute?

    • What benefits resulted as a consequence of the Council departing from the prescribed wording, and to whom do those benefits attach?

    • What has been the cost of the Council departing from the prescribed wording, including but not limited to – the additional legal costs resulting from the Glowzone case?

    • What effect will this cost have on (a) Council tax bills, and (b) the services provided by the Council?”

    The request was lodged on June 18, 2006 and after a lost e-mail and the intervention of the Commissioner a response was delivered on October 18, 2006 – but it was just a copy of a council press release. After another complaint the applicant received answers to his points which read: “The legislation does not prescribe the wording for a Penalty Charge Notice” to the first point of the question and ‘please see above’ to the others.

    Following another complaint to the Commissioner a slightly longer answer was provided to the applicant.

    In the decision notice the Commissioner notes that the information was eventually supplied to the applicant but ticks off the Council for three breaches of procedure in the Act.

    He said: “The Commissioner considers that in responding to the request, the Council focussed unduly on addressing the allegation of wrongdoing, rather than objectively identifying what information the complainant was asking for.

    “He considers that the complainant’s request clearly went beyond merely asking for confirmation of whether the PCNs were legally compliant.

    “If the Council took an objective approach and then became aware that several objective readings of the request were possible it could the have exercised the opportunity presented by section 1(3) to discuss re-focussing the request with the complainant.

    “He also draws attention to comments made by the Information Tribunal (Barber v the Information Commissioner, EA/2005/0004) advising that public authorities should ignore the tone and the precise wording of requests and focus upon the information which has been requested, if necessary seeking clarification from the applicant as to what information is wanted.”

    So although ‘manners cost nothing’ it doesn’t matter how rude or confrontational a question is asked it still has to be considered dispassionately.

    You can read the decision notice here [link] .

    If people could send me examples of the worst questions they have received (presuming they are somehow in the public domain on  a disclosure log) I’d be happy to post them up and share the pain.

  • What became of the drink-drive policemen?

    Posted on August 12th, 2009 admin 1 comment
    Should police stick with coffee and doughnuts?

    Should police stick with coffee and doughnuts?

    The Scottish Information Commissioner Kevin Dunion has issued an interesting decision notice which could provide scope for a more relaxed interpretation of S.40(Personal Information) south of the border.

    The case in question relates to the results of disciplinary hearings held on police officers found guilty of drink-driving.

    Dumfries and Galloway Police told Guardian reporter Ian Cobain how many officers were convicted but refused to state what had then happened to them. The police force said the disciplinary hearing information was covered by S.38 of the Freedom of Information Scotland Act – the rough equivalent of S.40 in England, Wales and Northern Ireland.

    The police force admitted two officers had been convicted of drink-driving but refused to state what had become of them. However, following an internal appeal the police stated that neither officer now worked for them – but didn’t state how they came to have left the force.

    As a matter of contrast between the systems north and south of the border it is interesting to note that the original question was sent on February 1, 2008 and the Scottish Information Commissioner was already in contact with Dumfries and Galloway Police Force on March 18.

    In summary Dumfries and Galloway Police said the release of the information would be a breach of the first Data Protection principle, there was no ‘legitimate interest’ under the act and that officers had a right to privacy under Article 8 of the European Convention on Human Rights. It also stated that it was common knowledge within the force that these two officers had been the subject of misconduct hearings and if the information was released people would know exactly what had happened to them.

    The Commissioner accepted that the information was ‘personal data’ under the terms of the Data Protection Act but he also accepted that Mr Cobain had a ‘legitimate interest’ in obtaining the information.

    The reporter had argued the offence of drink-driving was a serious crime and guidance in England stated that convicted officers should be dismissed while in Scotland the policy was not as clear cut.

    The Commissioner then stated how he had to conduct a balancing exercise to see if  the “legitimate interests of Mr Cobain outweigh those of the police officers” and if so the information of what became of the police officers could be disclosed without breaching the first data protection principle.

    In summary he said: “The Commissioner accepts the police officers may have had a certain expectation that the outcome of the disciplinary hearing would not be disclosed. Indeed, he accepts that it is uncommon for the outcome of disciplinary hearings to be disclosed. However, given the special role which police officers play in society, and the seriousness of the offence, the Commissioner considers that in this case the rights and freedoms or legitimate interests of the officers involved are outweighed by the legitimate interests of Mr Cobain.”

    Because disclosure would not be a breach of the Data Protection Act the information was not covered by S.38 of FOISA.

    We have seen few decisions where the protection afforded an individual under the Data Protection Act can be waived so this has important ramifications. High profile public servants have had to come to terms with the fact their salaries will become public knowledge now if they fall out of line they can no longer expect a complete blanket ban on how they were dealt with.

    The decision notice can be seen here [link] and if you are interested in the fate of the two officers I have asked the question here [link].