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.