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  • Postman Pat…hetic

    Posted on April 16th, 2010 admin 4 comments
    Pat waves goodbye to common sense

    Pat waves goodbye to common sense

    One of the things I like doing with FoI is following in the footsteps of other requesters. I’m not ashamed of pinching somebody else’s good idea.

    To that end I’ll read the Decision Notices and Tribunal judgements. When there has been an order to disclose documents and I think they might be interesting I’ll ask for a copy of everything that was disclosed to the original applicant. On occasions it has yielded some great information without me having to be the one who has to prepare all the appeal documents.

    However, the Royal Mail are taking a stubbornly unique approach to the Freedom of Information Act in a case where I want data it has already been ordered to disclose.

    Way back the Royal Mail was ordered by the Information Commissioner to reveal how much it had paid to management consultants in 04/05, 05/06 and 06/07. The decision notice [here] ruled the information was not covered by S.43 (Commercial Interests).

    The case initially went to the Tribunal but appears to have been settled before the case was ruled on by the panel. However, what is not in dispute is that following the intervention of the Commissioner the management consultancy fees were disclosed.

    So I thought I’d ask for the figures that had been disclosed and bring the issue right up to date by asking for the 07/08 and 08/09 figures.

    Imagine my surprise when the Royal Mail refused to release the information! They claim that it would be too expensive and breaches the £450 limit to amass the data for the two most recent years – despite being able to do it for the three older years. It also claims that the information about those three years, where the information was disclosed to the applicant, cannot now be released to me (is it because I’m a journalist?) because it is exempt under S.43.

    This is what they say: “Royal Mail Group holds the total amount spent on strategic management consultants in 2004/5, 2005/6, and 2006/7. Information for these years is held because it has previously been collated by Royal Mail Group.

    “As you are aware, this information was previously the subject of an ICO Decision Notice - FS50178376. The information held therefore covers the strategic management consultants as defined in that case.

    “Although this information was released to the applicant in case reference FS50178376, we still believe that disclosure of the information at this time would be likely to prejudice the commercial interests of Royal Mail Group.”

    There was me thinking one of the main limbs of the Freedom of Information Act was that disclosure to one person was disclosure to the world.

    Anyhow, you may not be surprised to learn that my appeal to the Information Commissioner is winging its way through the post – recorded delivery.

    The refusal of my internal appeal can be seen here [Appeal refusal]. If anybody has any thoughts on this case I’d be pleased to hear them. Is there something I’m missing in my understanding here, or do Royal Mail think they can make the rules up as they go along?


    4 responses to “Postman Pat…hetic”

    1. I don’t think they can do this.

      Royal Mail don’t appear [1] to have yet adopted the ICO’s Model Publication Scheme for Wholly Owned Companies [2], which came into force in Jan 2009. One of the items recommended to be published under the “Lists & Registers” section is a disclosure log:

      “If a department produces a disclosure log indicating the information provided in response to requests, it should be readily available. Disclosure logs are recommended as good practice.”

      This would allow you to request the information under FOIA s.19.

      The ICO will investigate complaints of non-provision of information from the Model Publication Scheme [3]:

      “If it appears that information has not been published in accordance with the publication scheme, the ICO may investigate the reasons for this. Should there be no satisfactory justification for the failure to publish, the ICO would require the authority to provide the information immediately and to ensure that in future it is routinely supplied.
      Any continued failure to provide the information may result in an enforcement notice being served.”

      I would imagine that the ICO might also hold a copy of the information as they are usually copied in to any disclosures resulting from a Decision Notice.

      [1] (2004 Pub Scheme)

    2. If anything the history will allow ICO to decide easily on the first 3 years.

      Did Royal Mail offer any advice or assistance, i.e. invite you to reduce the scope of the request or help you locate some of the information? If they didnt you may be able to argue that they failed in their s17 duties to advise and assist (ICO seem quite keen for LAs to meet this duty).

      Secondly, was any explanation offered as to how the appropriate limit was reached? Did they provide a calculation or just assume that you would be satisfied with a blanked, unsubstantiated ‘exemption’? Again, perhaps grounds for you to raise their lack of transparency and culture of secrecy (or contempt for the Act?

      On a slightly academic point, if they did apply s43, did they explain fully the grounds and apply the public interest test and explain their considerations? Somehow I doubt that this cavalier bunch did so.

      Best of luck, I have no doubt they will try and resist.

      It may be worth submitting a meta request, asking for the information about your request. I would be keen to understand how they arrived at the appropriate limit for the recent 2 years whilst the previous were ‘available’ within the appropriate limit. Also of interest would be the extent to which their records keeping may have changed. Why would Royal Mail be in a more difficult position to disclose.

      Glad to see you’re back btw. I was missing your great articles!

    3. Ganesh Sittampalam

      Alex: I don’t think the model publication scheme compels them to keep a disclosure log with all requests, it just compels them to include it in their scheme if they do have one.

      The s12 refusal may complicate things as if valid it gives a legitimate reason for refusing the entire request regardless, but if they’d just refused information when there was a unchallenged judgement ordering the release of exactly the same information, I would be tempted to ask the ICO to investigate whether a s77 offence had been committed, and make sure the Royal Mail was aware of this.

    4. Phil Bradshaw

      Alex : in theory they can do this if they have made a private disclosure outside of FOI and on that basis applicant has withdrawn (and ICO has accepted withdrawal) his complaint. I suggest you also ask for the information (which they should have no difficulty in finding) contained in the disclosure to the original applicant other than the identity of the applicant and the information itself (they have already refused that.). This should produce the redacted disclosure correspondence from which you will see if any conditions were agreed or attached to the disclosure, and the s17 confirmation*. If none then the implication would be that this WAS an FOI disclosure and your argument looks pretty watertight.

      * It is very rare but my authority has on occasion agreed private conditional disclosures (usually to an MP) and in such cases the disclosure is also accompanied by an FOI refusal notice !

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