Some you win - Some you lose……

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.

Commissioner reveals his Enforcement Log

This is how I would take enforcement action.

The Information Commissioner has given us a peek into his “Enforcement Action Log” which details those authorities that are being actively monitored by the ICO for not complying with the Act.

The data of who has fallen under the scrutiny of the ICO was released following a Freedom of Information question that was posted on WhatDoTheyKnow.

However, the Commissioner has only released details from the Log of those cases that have now been closed – all those authorities that are still being monitored have been redacted from the spreadsheet under S.31 (law enforcement).

But the spreadsheet which you can view here [Enforcement Action Log Closed cases] does make interesting reading. Those public authorities that have been probed by the Commissioner include:

Avon and Somerset Police: Issues relating to the way it was destroying information.

Birmingham City Council: Problems complying with the 20-day S.10 guideline for dealing with requests.

Department for Culture Media and Sport: Came to attention for late handling of requests and internal reviews.

Department for Work and Pensions: Problems with piecemeal disclosure.

Doncaster Council: Monitored by the ICO for six months for S.10 and other breaches. At the end of review the council was dealing with 94% of cases within 20 days.

Exports Credits Guarantee Department: Again monitored for six months in a bid to improve the time taken for requests and internal reviews.

Foreign and Commonwealth Office: “Poor” public interest test arguments and long review periods.

Haringey Council: Provided monthly updates to the ICO because of poor S.10 compliance. Has to provide a report to the ICO in November 2009 to update on its progress.

Kent County Council: Case was closed after it gave a detailed response stating how improvements had been made and staffing increased.

Office for National Statistics: Call for greater staff training.

Rother District Council: Told to look at ICO guidance after making e-mailed FoI requests invalid.

It is interesting up to a point but what would really be fascinating is a list of the organisations the Commissioner is actively looking at.

Any guesses as to who might be on that list? The Ministry of Justice? The BBC?……..

Are you free to say nothing?

The Freedom of Information Act has a provision in it to allow public authorities to ‘Neither Confirm Or Deny” (NCOD) it holds the information the applicant asks for.

This is because in some cases merely stating that an authority holds information relevant to a request will disclose too much information even if the data itself can be withheld using one or more of the exemptions.

The Information Commissioner’s Office (ICO) give guidance on the subject (link) in which it provides two examples. Firstly an applicant wanting to know if particular surveillance information was held and, secondly a request to know if troops on active service are equipped with a specific type of weapon.

Some recent examples of the so-called NCOD have been ruled on by the Information Commissioner and they may help FoI officers establish when this can be used.

Ken Bigley

Foreign and Commonwealth Office (FCO) [Ref: 50188323] - In this case the applicant asked for any information the FO held on the identification of a voice that is heard - presumed to be the killer - in the video in which British hostage Kenneth Bigley is beheaded.  The FCO argued that if it did confirm or deny (whichever was appropriate), it would effectively confirm that the Government has (or has not) managed to identify those responsible for Mr Bigley’s death, thereby confirming to those responsible that they may, or may not, be under suspicion. The ICO upheld the FCO’s decision to NCOD the information under S.23 (Security Forces) and S.24 (National Security) of the Act.

The home in Forest Gate London that was raided by terror police.

Cabinet Office [Ref: 50137790]

- The applicant asked for information held that related to a raid on a property in Forest Gate, East London, where two suspected terror suspects were arrested - one was shot but survived - and were later cleared of any involvement with terrorism. The Cabinet Office gave the applicant some information, directed him to a number of websites that also held some information but then refused to confirm or deny if it held any more claiming S.23 (Security Forces) and S.24 (National Security). The applicant said it was ‘absurd and an abuse of the Act’ for the Cabinet Office to refuse to confirm or deny that it held the information when it was obvious that it did, since the raid had been in the public eye and the Prime Minister would not have been able to respond to questions about it had the Cabinet Office held no information. The Commissioner agreed with the applicant and said because it was clear the Cabinet Office held information relating to the matter it should have said as much and then if it didn’t feel able to disclose it should have then applied exemptions to it. The ICO also said that it was not good practice to disclose some information and then NCOD if any other information exists. The Cabinet Office has now been ordered to state if it does hold any more information, and if it does to either disclose it or apply any exemptions it feels are relevant.

Plumpton Green

Sussex Police [Ref: 50205686]

- This was an application made on behalf of AsboData, a commercial company that aims to sell information packs to prospective homeowners. Some of the information it intends to sell is gleaned from public authorities using Freedom of Information Act inquiries. In this case it had asked the police for reports of anti-social behaviour in a particular street in the village of Plumpton Green. The police force refused to confirm or deny if it held such information saying that as there were just 15 homes in the street, the area was too small, and to confirm or deny it had such information would be a breach of S.40 (Personal Information). The ICO did not agree and seemed to suggest that 15 homes was not a group small enough to lead to personal data being disclosed. The ICO ordered the police to confirm if such information was held and if so to either disclose it or place the relevant exemptions on it. The decision has now been appealed by Sussex Police to the Information Tribunal.

Maddy search e-mails to remain secret

Sensitive e-mails concerning the hunt for missing child Madeleine McCann will remain secret for fear of offending the Portuguese authorities who were tasked with finding her.

A request for the disclosure of 13 e-mails and one letter, which were written in the two months after Madeleine went missing, was refused by the Information Commissioner.

The Foreign Office had dealt with the original request which had asked for copies of communication between the then Ambassador to Portugal John Buck and the Portuguese police. Some information was supplied immediately and another batch was released after the requester called in the Information Commissioner’s Office (ICO) to hold an appeal.

However, a number of documents were not released by the Foreign Office and these were examined by officers from the ICO.

The documents were not released by the Foreign Office primarily on the grounds that they were covered by the Section 27 exemption (International Relations) and that the public interest test rested in favour of non-disclosure. Read the rest of this entry »