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  • Hot FoI issues for climate scientists

    Posted on November 30th, 2009 admin 1 comment
    The global warming issue has more direct relevance from the perspective of a polar bear.

    The global warming issue has more direct relevance from the perspective of a polar bear.

    If I could be a fly on any wall at the moment – I might just choose the wall of the Freedom of Information Office at the University of East Anglia.

    What might from the outside appear to be a post unlikely to have too many controversial FoI requests the University’s FoI office has found itself at the centre of a row over global warming.

    The reason for this is the University is home to the world-renowned Climate Research Unit (CRU), which is at the forefront of the academic world on studies into how the planet is warming up.

    However, this leading role puts it in the sights of those individuals and organisations who believe global warming is a conspiracy put about by sandal-wearing, muesli-munching liberals who don’t like people driving cars.

    I should say at this stage that I am not taking sides either way in the debate on whether global warming is happening or not – far more interesting to me at the moment is the FoI fallout this is all causing at the University of East Anglia.

    It would appear that the first problem occurred when the anti-global warming crowd asked for the raw data held by the university – upon which it is claimed the global warming theories are based.

    The university under FoI was apparently reluctant to hand this raw data over too easily claiming it was “owned” by other institutions – based all around the world – and that permission for disclosure would be needed from the organisation that sourced the data.

    Frustrated at a perceived lack of transparency it would appear rogue groups managed to hack into the university’s computers and hauled off e-mails which have now opened up a huge can of worms.

    Prof Phil Jones.

    Prof Phil Jones.

    One of these e-mails, which the UAE have not said is false is from the climate group’s top man Prof Phil Jones warning colleagues to destroy e-mails. [Link]

    The suggestion is that he is getting them destroyed so they don’t come under any FoI requests. Some have said this would be an illegal act. I’m not so sure - and if they were deleted prior to a request coming in that they might be caught by – I think you might just say he was somebody who was very good at deleting obsolete records that were no longer required.

    The long and short of the row is that an independent inquiry has been launched at UEA into the whole affair and a whole lot more muddle has been added to the climate warming debate.

    But what this whole case does show is that transparency is always the best option. Those scientists hoping to convince the planet of global warming were never going to do it while jealously guarding sections of the data upon which their computer models were based.

    Just like MPs expenses an attempt to avoid transparency makes you appear guilty even if you haven’t been flipping your houses and cleaning out the moat at taxpayers’ expense.

    I have some sympathy for universities. As public bodies they fall within the compass of FoI yet the Government bangs on at them about acting like businesses. If they then Act in a business-like way and attract funding from outside sources, get involved in research for arms contracts or experimentation on animals for drugs research it theoretically all falls within FoI. However, that’s where my reservoir of sympathy runs dry – on the other hand academics can’t say them don’t have a cushy number at times – gold-plated pensions, sabbaticals, long summer holidays etc, etc..

    These global warming experts appear keen to scrutinise the latest weather data.

    These global warming experts appear keen to scrutinise the latest weather data.

  • Commissioner “…insufficiently rigorous”

    Posted on November 26th, 2009 admin No comments
    One way to beat the Congestion Charge
    One way to beat the Congestion Charge

    The Information Tribunal has overturned a decision of the Commissioner and criticised the ICO’s initial assessment of the case.

    The appeal relates to a case about a previously secret document held by Transport for London, which staff could refer to when considering whether to waive a Congestion Charge penalty fare.

    Initially the Information Commissioner ruled the document should remain secret stating it was subject to the S.31 (Law Enforcement) exemption.

    However, this decision was overturned at the Tribunal at which the judgement stated: “…the Commissioner’s analysis of the position was unfortunately insufficiently rigorous”.

    The legal aspect of this case revolved around the age old subject of “prejudice” and “evidence” in relation to S.31.

    The Commissioner accepted Transport for London’s case that the release of the document was likely to prejudice its enforcement functions – in that there were details in the booklet that people looking to evade the charge might be able to use to their benefit.

    But the Tribunal were not convinced by the argument and stated: “Does the evidence establish the existence of such a risk?”

    When the Tribunal assessed the evidence it said: “Indeed our impression was that disclosure of the document to the public might positively assist (rather than prejudice) the whole process by making it clear to some would-be evaders that certain representations would have no prospect of success.”

    Indeed the Tribunal were so clear there was no “evidence” that they ruled the exemption was not even engaged and so didn’t go on to consider the public interest test.

    You can see the Tribunal decision here [link] and the original Commissioner’s ruling here [link].


  • Appellant hit with £4,300 costs order

    Posted on November 25th, 2009 admin No comments
    Prepare your case!

    Prepare your case!

    A lawyer who took a case to the Information Tribunal and lost has now been landed with a £4,353 costs bill.

    David Bowden, a qualified solicitor, who trades under the name Lobby and Law, brought an appeal to the Information Tribunal earlier this year.

    His case was attempting to overturn the Information Commissioner’s decision to allow the Cabinet Office to rely on S.35 (Formulation of Government Policy) to block the release of minutes relating to specific meetings.

    Mr Bowden, who said he was acting on behalf of an anonymous third party, failed to convince the Tribunal of the strength of his case and they upheld the Commissioner’s decision.

    However, the Tribunal issued some stinging criticism of the way the appeal had been conducted and have now agreed to award costs against Mr Bowden under Rule 29 of the Tribunal’s Enforcement (Appeals) Rules 2005.

    The Tribunal said that Mr Bowden had “chosen to prepare an inordinately large amount of irrelevant documentation”.

    It was also noted that “much of what the appellant prepared and submitted to the Tribunal for the hearing consisted of an assortment of documentation ranging from newspaper articles to undated and unidentified publications of various sorts”.

    The Tribunal considered the appeal could have been dealt with in a day but because of the disorganised way Mr Bowden conducted his case a second day was needed, which of course brought with it a rise in costs for all parties.

    The Tribunal added: “……Mr Bowden was incapable of responding properly or at all throughout the course of the appeal and beyond, to requests by the Tribunal as well as the Additional Party to organise his case in some form of more concise order so as to economise the time and effort spent by all parties in conducting the appeal.”

    Here is a copy of the Tribunal’s decision in this case relating to costs [link] and the ruling in the case case sparked the costs issse [link].

    This is the third time the Information Tribunal has made an order of costs following a hearing. The other two cases saw Northumbria Police having to pay £1,000 and Nottingham City Council being made to pay £8,000 in costs.

  • Some you win - Some you lose……

    Posted on November 22nd, 2009 admin 1 comment
    An aviation mishap?

    An aviation mishap?

    The Information Commissioner appears to be getting a hurry on in his bid to clear the backlog of outstanding appeals – and two of my cases have recently come through the system.

    The first which was lodged against the Foreign Office was ruled on in my favour and the documents were disclosed, the second in relation to the Civil Aviation Authority (CAA) ended up with a Decision Notice in favour of the public authority.

    In the CAA case I had asked for details of Mandatory Occurrence Report forms, which are basically accident or potential accident reports, submitted by XL airlines in the 12 months before they went out of business.

    I knew the CAA would claim a S.44 (legal prohibition on disclosure) because the documents are covered by S.23 of the Civil Aviation Act. However, I thought I had found a chink in this legislation as it states it does NOT apply if “…the body corporate has ceased to exist or, whether an individual or a body corporate, cannot be found after all reasonable enquiries have been made…”

    The ruling was on a relatively simple point I claimed that as XL was defunct it no longer counted as a “body corporate” and the information should be released. The CAA on the other hand said XL was still in existence in that it was in administration and the administrators had been contacted and did not want the information released.

    I still feel a little cheated at this decision and cannot believe that the people who drafted the Civil Aviation Act did so with the intention of protecting companies that have in all meaningful laws ceased to exist. If you want to have a look at the ruling you can see it here. [link]

    In the other case I had asked for any Foreign Office briefing notes prepared by British embassy staff that offered any insight on who they thought might win the US elections. I wanted to see the documents as I thought that it would be an interesting story if our highly-paid diplomats had called the election incorrectly.

    My journalistic juices started to run when the Foreign Office refused to let me see the document claiming it was covered by a S.27 (international relations) exemption. I took the case to the Commissioner who settled the case without the need for a decision notice and I received an e-mail with the briefing notes, which I post up here.


    What makes this interesting in a perverse way is that if you read the document the embassy officials can’t really be criticised. They give an intelligent, insightful and fair appraisal of the state of the election at the time and the candidates’ relative chances of success.

    Because of this it makes me wonder why the Foreign Office were so reluctant to release the document as it actually paints a rather good light on the work of its embassy staff.

    However, what remains unanswered is the “what if” question. What if the assessment document had been completely wrong, and painted the Foreign Office as a bunch of gin-swilling incompetents? What then? Would that strengthen the power of S.27 to save the Government’s embarrassment, or would the public interest also have been strengthened to allow disclosure.

    This case has parallels with the Madeleine McCann investigation e-mails request in which S.27 was deemed to have been engaged for comments made by the UK ambassador in Portugal on the competence of the local police force investigating the child’s disappearance. There was something in those e-mails which were so damning that the exemption was allowed to stay in place. See [Maddy search e-mails to remain secret].

    Those of us on the outside of the decision-making process will, I am afraid to say, not be any the wiser as to what engages S.27 and what doesn’t until one day perhaps we might catch sight of what lies inside one of those secret documents so that we can compare and contrast.

  • What happened to the Duty to Assist?

    Posted on November 16th, 2009 admin No comments
    A case worse than the missing pineapple chunks.

    A case worse than the missing pineapple chunks.

    What would Fletch have to say about this then? As we all know under FoI legislation the person responding to the question has a duty to assist the applicant.

    A long time ago I put in a request with the Home Office about items being left outside the perimeter fence of Ford open Prison, in Sussex, which the inmates then went and collected.

    These “items” were reported to be phones, alcohol and drugs – all things that inmates are not supposed to have access while at Her Majesty’s pleasure.

    I asked for any Security Information Reports related to such finds and this request was communicated to the prison by the Home Office.

    It liaised with the prison and came up with a copy of the answer for me but before it was sent out the prison was given a chance to comment.

    The e-mail, which you can see at the bottom of this post, says: “Just to clarify the point. There were no Security Information Reports relating to items left outside for collection.

    “This is not to say that we did not have any information about items left outside the perimeter. This is an ongoing issue that is continually monitored.

    “If a member of staff saw a suspicious item they would check it and take it to our Security department.

    “They would not necessarily submit an SIR. This part does not necessarily need to be disclosed.

    I love this last sentence: “This part does not necessarily need to be disclosed.” How does that sentiment line up with the new era of openness heralded by the Freedom of Information Act, or should I say the Not Necessarily Need to Be Disclosed Act.

    The document has been sent to me by the MoJ some three years after my initial request to the department for the discussions around my requests to be disclosed.

    It was part of my meta-request and it appears after £100,000 of legal advice the MoJ has now completely backed down and agreed to give me all the information I wanted. I am wading through all the paperwork but I can see why they were so reluctant to release it now.


  • Royal Mail stripped of its exemption leads to exposure of its Benny Hill fears

    Posted on November 12th, 2009 admin No comments
    Did Benny ever worry about the lack of full and frank discussions?

    Did Benny ever worry about the lack of full and frank discussions?

    One of my first complaints to the Information Commissioner this year appears to have been resolved in my favour - the result of which turned up a jem of a story about Benny Hill.

    Way back in January I asked the Royal Mail for the minutes of its Stamp Advisory Committee. This is a body that meets a few times every year to decided the designs for our stamps.

    I wanted to see the minutes to see what designs had been blocked and why. The Royal Mail turned my application down saying to the information was exempt under S.36 (Prejudice to the effective conduct of public affairs). I appealled and surprise, surprise I was turned down again.

    My appeal was lodged with the Commissioner, and although I haven’t heard anything for about six months, last week I got an envelope through the door (it amuses me how the Royal Mail still prefer to post out some of their responses as if e-mail was never invented). In it were the minutes I had asked for, although there were still a few redactions.

    It would appear that this is the way a large number of appeals will be settled these days. The Commissioner’s office looks at the case and then tells the public authority to sort its act out. The matter is then sorted out informally without the need for a Decision Notice.

    When I did get to see the minutes it was noted that a set of stamps to celebrate 50 years of ITV was being planned but that Benny Hill was not going to feature in the set. The key item in the minutes that had not been redacted was that it was felt Benny Hill’s jokes were “in direct opposition to the company’s policies on harassment in the work place”.

    I’ve embedded a classic clip from Benny Hill as well as the article as it appeared in the Daily Mail.

  • Commissioner blows out the Beeb

    Posted on November 9th, 2009 admin No comments
    Can't see Christopher Graham anywhere

    Can't see Christopher Graham anywhere

    The new Information Commissioner Christopher Graham has had to turn down a plush trip to the Last Night of the Proms after finding himself in an embarrassing conflict of interests.

    In July this year Graham responded to an invitation from the BBC’s Vice-Chairman Chitra Bharucha to free tickets at the BBC showpiece at the Royal Albert Hall for himself and a guest. He e-mailed the BBC to say he would be “delighted” to accept the “kind invitation”.

    It appears that new to the job Graham didn’t realise just how at loggerheads the BBC and the Information Commissioners office were.

    Ten days later he e-mailed his contact at the Beeb to say: “I am very sorry to have to cancel for the Last Night. I do apologise and thanks to Chitra for the kind invitation.

    “One month into the job, I realise that there is quite a bit of unfinished business between the Information Commissioner and the BBC.

    “Under the circumstances, I don’t think I should be accepting invitations of this kind. What a shame!”

    The initial invite had been in a private box at the concert with ten others starting at 7.30 with drinks served in the interval.

    The exchange of e-mails was released by the Information Commissioner’s Office following a Freedom of Information request to [link].

    You can read the full redacted transcript here. CG and BBC e-mails

    Are they X Factor or Strictly fans

    Are they X Factor or Strictly fans

    It will be interesting to know if the BBC will be inviting Graham, a former BBC employee, next year. Because of course the picture looks a lot rosier for both organisations now.

    The decision of the High Court to prop up the BBC derogation means the BBC is happy that it can cling on to its financial secrets.

    But the verdict can’t be too disheartening for Graham either – he was not responsible for the previous line on the derogation – but now he can immediately clear-up dozens of troublesome appeals that were adding the Commissioner’s embarrassing backlog.

    Break out the bubbly.

    During Richard Thomas’ tenure at the Information Commissioner’s Office there was a strict policy of making sure all gifts were pooled and then distributed among staff via a raffle.

    I wonder if any of the £18k case workers the Commissioner is advertising for will be hob-nobbing with the great and the good at next year’s Proms?