“Frankness” of Chelsea e-mails doesn’t make them secret

"Give me my hat back or they'll put me in the salt mines."

For those of you who enjoy the performances of foul-mouthed fictional political advisor Malcolm Tucker in “The Thick of It” comes a decision notice which may show that nothing is quite as weird as the real thing.

The Information Commissioner and the Department for Culture Media and Sport (DCMS) have got into a conflict about releasing internal e-mails which were written by a special adviser.

DCMS official tried to argue a special case for their special advisers saying they work under pressure and the resultant “frank” language sometimes rises to the surface.

Personally I’m all in favour of a bit of “Frankness” and think Government should not be afraid of telling us what it really thinks.

The original FoI question which sparked the whole issue was submitted in March 2007 and asked for “information concerning the takeover of Chelsea Football Club by Russian interests in 2003”.

DCMS officials turned the initial request down and by December 2007 had finally upheld that refusal following an internal review.

The applicant made an immediate complaint to the Information Commissioner and in March 2008 a limited amount of information was released by the DCMS.

But the e-mail exchanges were still withheld from the applicant with the DCMS saying they were covered by S.36. (Prejudice to the effective conduct of public affairs).

DCMS stated that the e-mails from the special adviser included some “highly contentious and subjective information”, which if released would be likely to damage day to day relations with stakeholders in football. It said “the consequence of release would be likely to result in limiting the provision and the recording of advice by special advisers”.

But the Commissioner said he had “concerns” that S.36 was being used to withhold potentially embarrassing information, rather than because it was part of a free and frank exchange of views.

However, the Commissioner ruled the e-mails were covered by S.36, although the issue was “finely balanced”.

When considering the public interest argument the DCMS that “as special advisers worked within a high pressure/high workload environment, they generally needed to absorb information and provide deliberation and communications very quickly. At times, this may have meant arguments were put bluntly in a manner that would never be considered appropriate if the information were being prepared for publication.”

But the Commissioner rejects the DCMS pleas for leniency in regard to its Malcolm Tuckers. The ruling says: “The Commissioner is not entirely persuaded by DCMS’s comments and arguments specifically concerning special advisers. He notes the role as being one where both pressure and workload are high, and deliberation is speedy and potentially less guarded as a result. However DCMS appears to be advancing what amounts to a special case for special advisers……when in fact there is no such blanket ban.”

On the general topic of e-mails the Commissioner also made an interesting point rejecting any claims that the electronic medium should somehow be treated differently to traditional letters.

The Commissioner said: “the Commissioner has difficulty in accepting the argument advanced by DCMS that emails should be regarded as an informal medium, to which, by implication, lesser standards apply. Information contained in an email does not have any less value or standing than that contained in other media. Emails are used routinely to form part of the official record. Those using this medium to record information should at all times be aware that an email can form part of an official record.”

The conclusion of the case was that the public interest favoured disclosure of the e-mails, which the Commissioner says are “indeed frank”.

He said it was a finely balanced case but “given the position of football in British culture and the high profile position of Chelsea FC, there is a strong public interest in transparency and openness in promoting a better understanding both of the Government’s stance of foreign ownership and how that was arrived at.”

The DCMS was also given a public telling-off for taking more than 150 working days to conclude the applicant’s request for an internal review.

I have asked the DCMS to release the e-mails and you can see the request [here] and the Decision Notice link is [here].

I couldn’t help myself either but below are some of Malcolm Tucker’s finest foul-mouthed tirades. The journalist in me can only hope that life imitates art and these e-mails say something quite unpleasant at the prospect of the Russians running our football teams.

If you are offended, upset, disturbed or feel midly unpleasant when listening to people swear do NOT click on the link below.

Busy autumn ahead for Information Tribunal

A look at the cases in the pipeline for the Information Tribunal shows it is going to be a busy autumn for the court this year.

Hopefully the rulings should put some markers in the sand about what is and is not allowed to be exempted from disclosure under the Act.

The full list of cases has just been updated and can be found [here], but I’ve highlighted a few that I think are potentially the most interesting.

Royal Mail

What is the Post Office's management consultancy bill?

Royal Mail – 10^th/11^th Sept – Here the Information Commissioner ruled the amount spent on management consultants by the Post Office over the last five years should be disclosed despite protestations that the statistics should be covered by S.43 (Commercial Interests). Interesting as I can’t think many FoI officers would agree with the Royal Mail’s position on this one. The Commissioner decision was that the information was not covered by S.43 and didn’t even go on to examine the public interest test IF the exemption had been in play. [FS 50178376]

Department for Business, Enterprise and Regulatory Reform (BERR)

Protestors at the EDO factory

 

 

Department for Business, Enterprise and Regulatory Reform (BERR) – 22^nd/23^rd Sept – This could be a lively hearing in that it relates to the export licences granted to a company called EDO MBM Technology Ltd. This Brighton-based Aerospace Engineering Company, has been the subject of a campaign by local pressure groups who alleged that it had supplied Israel with military aircraft components. There have been a number of demonstrations and protests at the firm’s headquarters. This appeal relates to an attempt by an applicant to get hold of the export licences granted to EDO. The Commissioner agreed with BERR’s ruling on the matter that the information was covered by S.41 (Information Provided in Confidence). [FS 50180838]

Department for Culture, Media and Sport

Department for Culture, Media and Sport – 9^th/10^th Nov – This relates to internal Government memos on its casino policy, which changed a number of times. Here the Information Commissioner rejected arguments that documents should not be disclosed because the were covered by S.35 (Formulation of Government Policy) and S.43 (Commercial Interests). [FS 50160256]

Civil Aviation Authority (CAA)

The CAA has responsibility for ensuring air safety in the UK

Civil Aviation Authority (CAA) – 22^nd/23^rd October – I have written about this case before [Flight of Fancy shot down by ICO] where the CAA is refusing to issue safety reports on a cargo airline. It has claimed a S.31 (law enforcement) exemption but the Information Commissioner kicked that argument into touch saying the CAA had not shown how releasing such documents would prejudice its affairs. [FS 50168527]

Higher Education Funding Council for England (HEFCE)

The student accommodation didn't quite look like the brochure pictures

Higher Education Funding Council for England (HEFCE) – 16^th November – In this case the HEFCE doesn’t want to disclose the database it holds on the make-up and quality of university buildings. It claims the information is covered by a S.41 (Information Provided in Confidence) exemption, but the Commissioner ruled against the authority. Again I have blogged on this case in the past [Uni database to be opened to public scrutiny] and noted the Commissioner ruled the information was not covered by the exemption as there would be no ‘detriment’ to the universities who supplied it. [FS 50188864]

University of Central Lancashire

A student preparing herself for the Homeopathy practical?

University of Central Lancashire – 3^rd/4^th and 5^th of November – Pack your healing crystals and make sure you sleep on lay lines as this one is all about the ‘science’ of homeopathy. This case was brought by real scientist David Colquhoun, professor of pharmacology at University College London, who wanted all the papers relating to its homeopathy course. The university refused claiming the info was covered by S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) S.43 (Commercial Interests) and S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. The Information Commissioner again rejected the University’s arguments and ordered the documents to be disclosed. The university has refused to back down and will now take its arguments to the druids’ court, sorry I mean the Tribunal. This is an interesting case in that it is at the focus of very public battles between so-called scientists and those that have been dubbed ‘bad-scientists’ in that they hold pseudo scientific beliefs. These arguments are now being hammered out in the libel courts and here at the Information Tribunal, which many would argue is not the proper use of these institutions. Again I have written on this topic before at [Details of “Bad Science” BSc to be revealed]. The Information Commissioner’s decision on the case can be found here [FS 50140374]