Angry home schoolers cause problems for FoI officers

An interesting letter has emerged through the WhatDoTheyKnow website relating to the Department of Children, Schools and Families (DCSF).

It relates to a concerted campaign of action on behalf of advocates of home education who feel they have been attacked by a report into the subject.

The report – called the Badman Report – after its author Graham Badman looks into suggestions that home educated children may be more vulnerable to abuse than children who are at school.

Those of you who look at WhatDoTheyKnow will be aware of a lot of requests sent into local councils asking for sight of the raw material that was supplied to Mr Badman, which was the basis of his report.

Now a letter from the DCSF to the Information Commissioner’s Office has come to light through a Freedom of Information requests which warns the ICO that the campaign by home education advocates could have a serious effect on the way the department can answer future questions.

It says it has already received around 80 FoI requests on the topic and feels that in the light of threatening posts on the internet it may have to block information citing S.38 (health and safety).

Here is the letter.

Letter to the ICO

What this does show once again is the power of the internet in enabling pressure groups to exert their power to maximum effect.

Because in this case a relatively small, and one would have thought reasonably non-militant pressure group, are threatening to derail a Government department’s FoI responses.

This YouTube video [link] is used as evidence by the DCSF why it may have to impose a S.38 exemption on information.

U English. Wat informazion ar u holding?

Members of the Scorpions - not Cambridgeshire police. This was the alternate cover. I find this one pretty offensive and upsetting.

Cambridgeshire Police force is being forced to disclose what information they hold in relation to a row which developed last year into the censoring of internet.

The dispute centres on a decision by the Internet Watch Foundation (IWF) to blacklist Wikipedia due to concerns over the legality of an image used on the page of German heavy metal band Scorpions.

The image in question was the album cover called Virgin Killer – and features a naked prepubescent girl. Four days after some of Wikipedia’s pages were blocked because of the row the IWF reversed the decision and the image can once again be viewed on the band’s pages on the site.

From a Freedom of Information point of view the issue relates to an applicant asking Cambridgeshire Police “Please disclose…what is in the communications between the Police and the Internet Watch Foundation that relates to an image on Wikipedia of the cover of an album by rock band The Scorpions.”

The police force refused to either confirm or deny it had the information claiming it was covered by a S.30 (Investigations) exemption.

However, when the commissioner looked into the matter it was ruled the exemption was not applicable to the case.

It appears Cambridgeshire Police did not want to release information because it did not want to reveal that it was the force that was contacted for advice by the IWF – and in essence wanted to keep the relationship between it and the non-Governmental internet watchdog secret.

The Commissioner’s decision said this was not a valid reason under S.30 which would have needed to address the actual information itself rather than just the relationship between the two organisations.

He ruled the exemption was not applicable and so therefore did not even go on to consider the Public Interest test.

The force was also criticised over the way it conducted its internal review of the applicant’s request.

The Commissioner said: “The internal review response from the public authority did not reflect that a reconsideration of the request conforming to the description above took place. The Commissioner would advise the public authority that a response giving the outcome to an internal review should state the reasoning for why the initial refusal was upheld and should reflect that there has been a genuine reconsideration of the request.”

You can read the decision notice [here].

WARNING: If you click on this link [here] you will be taken to the Wikipedia site where you will see the image. Please do NOT click here if you are going to be offended/upset.

Summer time blues for CPS

Keir Starmer, the £200,000 boss of the CPS. Desk calendars for his staff perhaps? A new holiday rota maybe?

A recent judgement issued by the Information Tribunal has done little to dispel the fears of those who think the Crown Prosecution Service (CPS) doesn’t do the greatest job in the world.

The CPS was ordered to disclose information about a change in policy relating to a defence for reasonable chastisement of children.

It decided it would appeal the decision to the Tribunal – but it lodged the appeal 37 days outside the 28 day time frame for making such an application, and then claimed it was late because a lot of staff had been away over the summer holiday.

The CPS then had to put forward “special circumstances” why its appeal to Tribunal should be heard out of time. It said: “The DN arrived just before the summer vacation and because the decision as to whether to appeal involved consultation with a number of other public authorities it took some time to decide.”

The Information Commissioner opposed the application and the Tribunal ruled against the CPS saying: “The Tribunal has considered these arguments and is not convinced that in the circumstances of this case, where the appeal was submitted so long out of time, that this ground is a special circumstance under rule 5(2).

“Even if it is the Tribunal is not of the opinion that it would be just and right to allow the appeal to be accepted out of time on this ground alone. The Tribunal is particularly concerned that if it was to allow this application from a public authority whom, because of its functions, is more than aware of the need to comply with court and tribunal rules of procedure, then it would make it very difficult to refuse other applications made on a similar ground.”

But the story has a happy ending for the CPS as the Tribunal has allowed the appeal as it accepted the organisation’s second “special circumstance”.

Having lost the initial case in a battle over S.35 (Formulation of Government Policy) the CPS now wants to run its appeal to the Tribunal on the basis that it should have considered S.42 (legal privilege) and this argument was allowed.

So the moral of the story is: If the CPS, an organisation staffed with a disproportionate number of lawyers, can get away with saying we missed the most important legal point in the initial case and now we are out of time with our appeal – then anybody else should be able to run that argument as well.

Perhaps a dose of “reasonable chastisement” is needed in the offices of the CPS.

You can see the original Decision Notice [here] and the Tribunal’s ruling on accepting the appeal out of time [here].

DCSF admits defeat through gritted teeth

Ed Balls - You're a bad loser

It would appear to me that the Information Commissioner’s Office under instruction from the new boss is starting to address the issue of outstanding appeals.

Since the start of the year I have been lodging appeals with the ICO under my new company name DataNews Ltd and hadn’t really expected to hear anything until the start of 2010.

But it would seem a new tactic has been developed within the ICO in a bit to cut down on the many hours that must be wasted writing those sometimes enormously long decision notices.

What has happened to me, and I’d be interested to know if the same thing has happened to others, is that I will get an e-mail from the ICO telling me basically who it thinks has won the argument, asking the loser to back down.

This is a reasonably effective tactic in that if the ‘loser’ is a public authority it is more than likely it will release the information rather than being “named and shamed” on the ICO’s website as having lost a case.

It is slightly more difficult when the applicant has lost the argument since they are, I would suggest, less likely to just walk away and accept defeat after having gone to the effort of a request, an internal appeal and then an appeal to the ICO.

One appeal that has caused me some amusement is one from the Department of Children, Schools and Families. I asked for details of exam grades at GCSE broken down by ethnic origin and in particular white boys.

The DCSF said they had the raw data but had never manipulated it that way and so therefore I wasn’t going to get it. I pointed out to them that even the FoI officer in the bottom stream now knows that if you can provide the data in the way the applicant has asked from the raw data you hold then that is a valid FoI request.

Eventually the Information Commissioner got involved and this is an extract of his e-mail to me:

Dear Mr Davis

I am writing to provide an update about the above case. I can confirm that the public authority has decided to disclose the information to you in relation to what you have indicated you will accept as an informal resolution. Please find a copy of the information and a covering letter addressed to you attached to this email.

In order to make the best use of his resources, the Information Commissioner will not take up, or continue to investigate, complaints where the complainant has a copy of the requested information. Therefore no further action will be taken in respect of your complaint.

However, I can assure you that I have made our Enforcement team aware of this case, particularly the very poor approach to determining whether information was held at first instance and in the internal review process.  The Enforcement team will review the case and decide whether to take any action.  This could range from writing to the authority to remind it of its obligations, asking for its policies and procedures regarding request handling to be reviewed, or the serving of a Practice Recommendation or Enforcement Notice. If the Enforcement team chooses not to take any action at this time, it will, at the very least, log the issues raised and monitor any future complaints made to the ICO about this particular public authority.

Look at the reply that was enclosed from the DCSF! Here is what its says:

The Department does not hold this information in the form requested, and the processing and manipulation of the information would amount to the creation of new information, which it is not required to undertake under the provisions of the Freedom of Information Act 2000. However, the Department is happy to provide you with this information outside the terms of the Act by way of informal settlement.

I’ve attached a copy of the letter [FS50247751 response to Mr Davis final.doc] so you can see for yourself. I call that being a bad loser.

Below is the newspaper story I wrote with the information the DCSF so reluctantly released.

Is this the reason they were so reluctant to release the information

Sheep exemption gets the chop

Can the pictures be any worse than this?

Back in March I wrote about a case involving Devon and Cornwall Police and a grisly and bizarre case of sheep murder on the moors.

An applicant had asked for details of the investigation, including police photos of the dead sheep, but had been refused under S.30 (investigations). I wrote about the case [here] and the original decision notice from the Commissioner can be found [here].

Well, the case was taken to tribunal by the applicant Mr Michael Freebury and the panel have decided that the photographs can be released.

The S.30 case was put in the Tribunal by Louise Fenwick, the Freedom of Information Officer for Devon and Cornwall Police. She told the Tribunal that “she was cognisant that applications for disclosure of sensitive and confidential information relating to criminal investigations may be made by perpetrators and those directly involved with the crimes they seek disclosure on. Therefore as a general principle she would consider disclosure in unsolved crimes to be prejudicial except in very exceptional circumstances.”

The decision notice went on to say: “Ms Fenwick further attested that, in her view, there would be prejudice flowing from disclosure as it would harm any investigation into the crime in particular and subsequent crimes. The disputed information, she claimed, showed the Constabulary’s modus operandi for the investigation of this crime and this would be the same for other crime and future complaints of ‘sheep deaths’.

“She claimed that the manner in which the sheep met their death was not released into the public domain and that release of such information ‘could seriously jeopardise our ability to detect the offenders for this crime and also to detect any future crime’.”

The key point in this Tribunal was the fact that the applicant was able to bring to the case details of a press cutting from the Western Daily Press, that had not been considered by the Information Commissioner when making the original decision.

Some key passages from the article were reprinted in the Tribunal’s finding.

These were:

• “Six sheep were found with their necks broken and their eyes removed on land at Moortown near the edge of Dartmoor. Four of the their bodies were arranged in a regular square shape, another two were lying next to a pattern of stones.
•  “Our understanding is that this place used to be some sort of meeting place for Pagans,” said a spokesman for the Devon and Cornwall police”.
• The dead sheep, worth £600, were still warm when they were found by their owner………….. on Sunday morning.
• There were the four sheep and then 10ft or 15ft away there were another two, which were laid next to three stones which had been arranged in a pattern” he said.
• The stones looked like a kind of gateway, a similar thing that had been found in January”
• In this case, the eyes were completely removed from the sheep, and there were no signs of the messy pecking that could attribute the loss to an attack by birds.
• Police confirmed that the animals had their necks quickly broken and there were no indications of a prolonged struggle or suffering.
• It is thought that at least two people would have to had to have [sic] been involved, given the sheer physical strength needed for the killing and arranging of the sheep.”

The Tribunal considered this article as key to the case as they stated there was nothing in the police pictures of the dead sheep that had not already been noted in the article.

Therefore it concluded that although the S.30 exemption was engaged the public interest argument was an equal balance between disclosure and non-disclosure. Because the public interest test had equal weight on both sides the law states the information should be disclosed.

You can see a copy of the Tribunal’s findings [here] and an application for the release of the photographs [here].

High Court saves the BBC

This post has upset me so much that it has taken me a few days to bring myself to write it.

The BBC’s derogation from the Freedom of Information Act which was first weaked by the Commissioner and then put in limbo for the last year now appears to have been settled. And its not good news for those of us who were lobbying for greater transparency at the Beeb.

The judge has effectively stiffened the derogation by saying if the information requested has any link to “arts or journalism” then it falls outside the Act. The previous position that had been adopted, but was was taken to appeal by the BBC was that it depended on what the information “prodominant” purpose had been.

Sadly I have already been contacted by the Information Commissioner’s Office and have been forced to throw in the towel in relation to three of my appeals - how much the BBC spent on accommodation at the Olympics; how much was spent on accommodation at the Open Golf; how much it spent buying the rights to Formula 1. All of those along with dozens of others I suspect have now been cleared off the Commissioner’s desk.

However, I refused to budge on two others. One relates to the BBC’s pension fund and the other relating to a taxi contract the Beeb has with a company was refused on the basis of S.43 (commercial interests) so it would be rich if the Beeb now said it was covered by its derogation.

Two points on the whole sorry saga. Firstly the judge, with all due respect as they say, has clearly misjudged the matter. The derogation is now so wide that it virtually covers everything the broadcaster does - can that have been what the legislators intended?

Secondly as we all hunker down for the huge public service cuts that will follow the forthcoming election is it right that the BBC - one of the deepest pits of taxpayers’ money - should be free from public scrutiny? Especially when the BBC are such enthusiastic users of the Act. I don’t see the storm over BBC costs disappearing any time soon and with a predicted change in Government soon perhaps the tide will swing back against the BBC.

For your amusment, and to illustrate the point that the BBC’s use of its own resources will continue to be  a thorn in its side I have added a clip of Paxman v Boris. You may have seen it but as Boris gets more and more exasperated at Paxman questioning him about his drunken university exploits he responds by asking Paxman how much he gets paid.

I’m optimistic. I don’t think this will be the last post I write about BBC costs. For those of you who want to read the judegment I’ve linked to it [here].

Higgins on cue for jackpot finish to London 2012

David Higgins hopes not to have trouble with the builders

The subject of top officials’ pay is a constant one in the land of Freedom of Information – and the related topic of bonus payments for those individuals is even more complex.

As the law stands at the moment a request for the salary details of a chief executive of a public authority or a chief constable will illicit the details. The total paid out as a bonus payment will also normally be revealed.

But what at the moment is guarded with some ferocity is the requirements that the top person has achieved to warrant the payment of such a bonus payment. This will normally be protected by a S.40 (Personal information) exemption.

My personal view is if somebody at the head of a large publicly accountable organisation is going to accept bonus payments then we the public should be made aware of what those targets are.

Why? Well the objectives that a pay review body set a chief executive are strategic targets for the organisation as a whole and indicate to the paying public what are the priorities for that organisation might be – and perhaps more interestingly what are not deemed to be priorities.

So I imagine that a chief constable’s bonus could be linked to the prevalence of knife crime and a hospital boss’s bonus to the number of MRSA infections.

And because these are strategic targets that the organisation as a whole has to work to achieve I believe we should know which of the bonus elements a chief executive achieves, and which ones he or she falls short of reaching.

In an attempt to push this point through I had been looking for the head of an organisation where a test case would help to establish this principle.

Step forward David Higgins the chief executive of the Olympic Delivery Authority (ODA). His salary in 2007-08 was £373,000 to which was added a bonus payment of £205,000. Cynics among you might wonder how he can justify a £205,000 bonus when the games are still four years away. You might argue – and I have – that really he shouldn’t get a bonus until the final curtain comes down on London 2012 and we can then assess if he has done a good job.

Well my appeal into Mr Higgins’ bonus payment and the targets that lay behind it is now sitting on the desk of the Information Commissioner and I’m hopeful they might issue a decision notice on the matter before the games actually start.

But what has interested me now is the latest set of accounts for the ODA. In it Mr Higgins salary has edged up to £384,000 yet his bonus payment has dropped £100,000 to £105,000. This severe cut to his bonus is accompanied by an asterix* which further down in the document gives an explanation.

It says: “For the financial year 2008-09, the Remuneration Committee determined that a performance related payment of £209,566 was the appropriate amount to recognise the Chief Executive’s performance. However the Chief Executive voluntarily deferred half of that amount until no later than December 2012, subject to the satisfactory delivery of the current programme scope within the maximum available budget agreed by the Minister for the Olympic and Paralympic Games.”

So, it would appear that although the ODA turned down my internal review for greater transparency of Mr Higgins’ bonus payments – some of my argument has been accepted, in that it’s ludicrous to award huge bonus payments to the person during the course of an ongoing project where the success can really only be assessed after it is finished.