Trouble by the seaside

Actually I had always quite liked the rubber-faced Education Secretary

I fear I have become the first victim of a phenomenon that may become known as a “reverse Gove”.

I’ve coined the term myself in homage to legendary Sun editor Kelvin MacKenzie, who managed to get the term “reverse ferret” into common parlance.

His phrase was used when his paper would suddenly turn a full 180 degrees and praise the individual or policy it had hitherto been viciously attacking.

Why am I the victim of a “reverse Gove”? It all stems from an allegedly obscene nursery rhyme about the seaside town of Hastings. The ditty was e-mailed by the town’s police chief Mark Ling from his force mobile. When the story emerged I put in a request saying I’d like to see the rhyme.

First Sussex Police turned me down on the basis that the information was exempt under S.40. I appealed saying how could it be personal, seeing as it was at the centre of a disciplinary hearing, and that it was sent on a e-mail system that specifically warns people the content can be released under FoI legislation.

Well I’ve waited a long time for the appeal ruling to come back and this week, not long after the guidance on Gove, I got my response.

Sussex Police said that they had been incorrect to claim that it was exempt under S.40, but they were still not releasing it to me because it was “personal communication”.

The response from Sussex Police says:

It is my assertion that the rhyme was a personal written communication between a Sussex Police employee and a member of the public and therefore not official information covered by the act.  We are therefore not required to consider disclosure.

In making this decision I have considered that whilst you are correct in stating that we have policies informing staff that private communications made on the organisations equipment can be monitored, Sussex Police nonetheless actively allows its staff to use work equipment for their own use.  This includes the sending of email, making personal calls or sending SMS messages.  To support this we have a process to allow staff who have provided phones to pay for personal calls and texts made.

Whilst the rhyme itself may have been deemed as inappropriate to have been sent by a member of Sussex Police, it was not an official communication but was a personal communication outside of the provisions of the FOI act.

As an aside we find ourselves in a difficult position in that a misconduct hearing conducted under the provisions of the Police Regulations has ruled that it was inappropriate for the information to have been ‘published’ by a member of our organisation (albeit privately) and therefore to release it under FOI to the general public would be exacerbating the wrongdoing.

So it would appear that although Gove and his cronies have been rapped for sending official communications on personal systems, I’m being denied what is claimed to be the exact opposite: personal information sent through an official communications system.

Now, as you might suspect, I don’t agree. If this had been a request for his shopping list or what time he was meeting friends then I’d accept the proposition.

But this is significantly different. It is a communication that was allegedly derogatory in nature about the very town that he had the responsibility of policing. If it contained racist language, is that not a relevant cause for concern about the way racist crimes might be investigated?

Sussex Police considered it so seriously that Mr Ling was the subject of a disciplinary hearing. Indeed after the hearing the force’s Assistant Chief Constable said: “The officer failed to uphold the values the public and the force expect of all our people and disciplinary action has been taken against him.”

I’ll be appealing the decision to the ICO and would be grateful for any advice. Here is a link to one of the articles that came out at the time, and here is one after the disciplinary hearing was concluded.

I’m also linking to FoIMan’s excellent blog which has a spicy debate with the inappropriately named Captain Sensible over the Gove e-mail business.

PS. I do have some sympathy for Mr Ling. I spent six depressing months living in Hastings at journalism school (yes I did go to one) learning mainly shorthand. A quick internet search  came up with this description of the town from a band who had to play a gig there.

Hastings. There is very little you can say about Hastings. It is low rent, full of kids and all those kids are drunk with kids of their own. Need I say more.

Even when Foyle was in Hastings the place was a crime hotspot.

Leave FoI alone you nincompoops

Another great idea

The publication of statements yesterday relating to the consultation on the future of Freedom of Information has, I suspect, left many of us gloomy.

I have always thought the powers-that-be, when faced with the stark realisation of just what they had given birth to, would attempt to smother FoI as soon as politically possible.

Their last attempt was scuppered with help from a well organised campaign from the press and the opportune timing of the MPs expenses scandal – brought to us with the help of FoI.

Now the politicians and civil servants have risen from the dead in true local council zombie invasion style (in joke), and are coming back for a second attempt. I’m afraid I’m not optimistic that we can fight them off again.

Why the pessimism? Firstly the press has got a battle for its own survival going on, so can be forgiven for taking its eye off the ball for a while. How upsetting is it that the clowns who hacked into the phones of non-celebrities could potentially be responsible for the retreat of FoI?

Secondly we have the excuse of austerity. “When we are making people redundant and cutting essential services why should we be answering questions about how many toilet rolls we use?” On the face of it the argument seems powerful, but unravels if we look at it more closely. There is a saying that some people know the cost of everything and the value of nothing – it could have been coined for FoI.

The transparency and accountability of FoI gives these public bodies the legitimacy to govern us. Without it where will they be? They seem not to realise that FoI acts as deterrent and antidote to corruption and vested interests. I’m not saying that take FoI away and you’ll have rioting in the streets similar to Athens – but you create that risk.

Finally we have the argument that FoI has not improved Government. If ever there were an example of why Government isn’t improving, it is this piece of “research”. It was never for FoI to improve Government, it was for the people who govern us! FoI was supposed to act as the disinfectant or the light to allow the citizen to see that we were being well governed. Well we’ve had a look and we don’t like what we’ve seen, so what do the authorities suggest? A) Put their house in order or (B) turn the lights out so we can live in ignorance once again? Amazing.

So with this three pronged attack, what will happen?

In a bizarre way I’m relatively optimistic despite what I’ve already said, as I don’t think now there is a hope of squeezing the FoI genie back into the bottle.

But there will be changes and one of the changes they are looking at is introducing a fee. This is such a bad idea, both in a practical and a philosophical way, that I wouldn’t be surprised if that’s what we end up with.

Why would it be so wrong?

1. Any marketing expert will tell you that you can’t have a product called the Freedom of Information Act and then charge £10 for it. If Tesco said chickens were free and then charged you a tenner for them, you’d be angry, annoyed and you’d think Tescos was run by idiots.
2. Any fee, be it £10 or £50, is going to be complicated to administer. When do the 20 days start? When the funds have cleared? The fee will not actually make any money for the authorities to offset the cost of FoI, but will just sit there to act as a deterrent to questions.
3. If you think things are complicated now, just wait until you start charging. When people are made to pay, they will complain more, and they’ll sue. The vast majority of authorities treat FoI seriously now, but everybody will have to shift up a gear if it’s a service that’s charged for. I confidently predict that although the number of requests might plummet the number of appeals will more than make up the workload deficit.

To my shame I didn’t send in a submission to Parliament. But just so as to conform to everybody’s hatred of journalists going of FoI fishing missions, I’m sending out a request to all the Cambridge colleges today (organisations that amazingly think they should now be completely exempted from FoI) asking them how the value of their wine cellars compares with the grants they give to less well off students.

The camera never lies……

Clegg and Cameron

Eric and Ernie, Barker and Corbett, Keegan and Toshack are all great double acts. Few would disagree. At one point in history you might even have added Brown and Blair to that list, as everybody spent the money they didn’t earn propelling us to our present economic meltdown. But will anybody ever mention Cameron and Clegg in those same terms – I fear not.

What makes a great double act? I would suggest it is that the individuals, although they may have different qualities and attributes, are widely perceived to be roughly equal in talent and skill. Also they are made individually better because they act as a foil for their partner. So when Toshack heads the ball on for Keegan to crack it in the back of the net; it’s the same as Ernie feeding Eric a gag.

Now let’s look at the Tweedle Dee and Tweedle Dum of British politics – Cameron and Clegg. After their initial love-in at the No.10 garden, things haven’t gone great for the No.2 man.

Clegg has been made to look a chump by doing the mother of all U-turns on tuition fees and managed to get snared in an unwinnable PR referendum, which means the Liberals will forever be on the fringes of politics.

I’ve now been supplied with a FoI response from the Cabinet Office, sent only after I got the Information Commissioner involved, which shows just how seriously Clegg is taken inside Government.

Those of you who have read this blog before will know I was trying to find out the communication between No.10 and Wimbledon in relation to the deputy MP helping himself to complimentary tickets for the women’s final this year – an event which two of my family attended AFTER winning a raffle AND then paying £200.

The Cabinet Office said they could find no record of him having attended the event! But I saw him on television hobnobbing in the Royal Box.

When I found a photo of him at the event and sent that to the Commissioner the Cabinet Office did at last find a record of the information.

But let’s look at the excuse. Does it give us an insight into just how highly regarded Clegg must be considered within No.10.

“The search for information in response to your initial request was co-ordinated by two members of staff (one inside No.10 and one for the rest of the Cabinet Office). Each thought that the other had contacted the Deputy Prime Minister’s Office, when in fact neither had. I am very sorry for this oversight. I have now taken steps to make the search process more robust in future cases.”

Ignored by not just one official but two!

If you want to see the whole of the letter it is here No10, and the actual e-mail exchange in which Clegg first tries to go on a day when there is no tennis and then seems more concerned about who else will be in the Royal Box is here Emails.

Fishy?

Don’t take this the wrong way, but………

It is important, say the Royal Mail, that their message should not be misconstrued

There has been some chatter in FoI circles on the internet recently about the Royal Mail and their rather imaginative use of the S.43(2) commercial interests exemption.

Here I should declare an interest in that the Royal Mail and me have history.

They obviously feel that as a commercial organisation battling every day to deliver post in competition against other companies that FoI is something of an inconvenience.

But as my mum would say “There’s no point moaning about it”, however, Royal Mail continues to sit in the corner sulking hoping that FoI will go away. I believe the current expression is “Man Up”, and it is time either the chiefs at the Royal Mail, or those in charge of FoI take my mum’s advice and just get on with it.

I’ve written a host of stories on the Royal Mail since FoI came in, almost all of them bad, and almost all of them prised out of the organisation grudgingly.

My catalogue of Royal Mail stories includes how many letters they shred every year because they don’t deliver them, how much they raise from auctioning off items they fail to deliver, how much compensation they pay to customers and how many postmen are fired for stealing.

So recently when trawling through some Parliamentary documents on the web I found a letter from the Royal Mail detailing how many criminal investigations it sets in train every year.

I thought I’d ask them how many had been started in previous years to see if there was a trend and perhaps it might make another story.

Well, imagine how unsurprised I was to get a reply from the Royal Mail saying the information was exempt from disclosure under S.43(2) of the Act. Their letter to me is here.Davis - DTUP-8NWESG The best bit was their rationale for the decision which was:

“ We believe the requested information, if disclosed, would be likely to be misconstrued and taken out of context resulting in unfair damage to the reputation of our employees and public perception of Royal Mail.”

Misconstrued! When has that ever been an exemption? I’m sure there are hundreds of people out there who would like to have denied me information on the basis that I might ‘misconstrue’ it, but it’s not allowed.

What about Freedom of Expression? Should the Royal Mail be in charge of some despotic Government’s Department of Information? What about all the people they employ in their press office? What are they being paid for?

Well I’ve already fired off my appeal and I’ve enclosed a copy of the letter that the Royal Mail disclosed to Parliament, which you can see below, which reveals the very information that has been denied me.

I’ll keep you posted.

Page 1

Page 2

No FoI required

Sadly things can go wrong at hospital

One really positive thing about the Freedom of Information Act is how it has made organisations proactively release information.

I waste many an hour clicking down blind alleys on the internet in the hope of turning up an information gem.

One such organisation that publishes a lot of its material as a matter of course on the web is the National Health Service Litigation Authority (NHSLA).

This organisation has the unenviable job of paying out for medical negligence claims that occur within the NHS. It pays for these claims by billing NHS organisations, mainly hospital trusts, a premium for cover, and then it administers any payouts.

Therefore the NHSLA has a database that contains how much each Trust pays for cover as well as how much has been paid out in claims for that particular organisation.

All of this information is on openly available websites that anybody with an internet connection can click on to. Here are the most recently available figures. NHSLAFactsheet5201011.

From my local newspaper days it seems a crying shame that so few reporters have latched on to this organisation as the data can be used to provide some illuminating articles about the level of care provided by their local hospital.

I used the data this week for a story that appeared in the Sunday Express.

Sunday Express

My love-match with “Mr E”

Is that Matthew Davis on the line?

Every year I send an FoI request to the BBC to see how many free tickets the Corporation gets for Wimbledon.

Over the years the request has been modified to discriminate between tickets for No.1 and Centre Court and most recently who had received the tickets.

This year after a little bit of misunderstanding with the lovely people in the BBC’s FoI office I was eventually handed the names of the people who got the prize tickets, those for the men’s final on centre court.

Imagine my surprise when I see on the letter that one pair went to F1 supremo Bernie Ecclestone. I knew I had a story and as you can see below it made a nice show in the Sun.

But then things took a turn for the worse when my phone rang on the morning the story was published. The conversation went a bit like this.

Caller: Is that Matthew Davis?

Me: Yes.

Caller: Mr Ecclestone here.

Me (in high voice): What Mr Bernie Ecclestone?

Caller: Yes, that’s me. Listen, I don’t like people who write lies about me. I didn’t get any freebie tickets for Wimbledon. Why would I have to accept freebies?

As you can imagine at this point I was getting a little concerned. Images of my bankruptcy, being forced to live in the street with my children foraging in dustbins flashed before my eyes.

I told him that I hadn’t made it up but had been provided with the information by the BBC, and seeing as it was a FoI response I was happy to forward it on to him. You can see a copy here Beeb’s FoI reply.

Later that day I got another personal call from Mr Ecclesstone, where he admitted being reminded by one of his staff that he did accept a pair of tickets from the BBC, but handed them on to the President of Valencia.

It all ended quite amicably and I had quite a nice chat with ‘Mr E’.

As a part-time media law lecturer one of the things that has always appealed to me about FoI is how the answer should always act as a justification against any potential legal problems, as long as your interpretation of it is correct. Hence the need to make your question as crystal clear as possible.

Naked Brooke Shields - Shameless attempt to increase my hits!

Inappropriate motorbiking gear. The naked Brooke Shields' picture was replaced by the Tate Modern with this one.

Hollywood starlet Brooke Shields naked – if the start to this post doesn’t shoot me up the google rankings nothing will.

The full frontal image of Miss Shields standing in the bath naked, her face turned provocatively to the camera, has one deeply unsettling quality to it – the Ms Shields in the picture is only ten-years-old.

For centuries rich people and ‘clever’ people, and sometimes rich and ‘clever’ people have tried to justify pornography as art. When they do we have the makings of a controversy.  

That’s what happened at the Tate Modern when it put on display its image of a naked ten-year-old Brooke Shields.

The Tate, which has previously paid thousands of pounds for paintings constructed with elephant dung, took advice from lawyers about whether it should allow the Shields image to go on display.

One presumes that armed with this advice the photograph went on display only to be taken down when the Metropolitan Police visited the exhibition and warned it could be breaking obscenity laws.

Let me now nail my colours to the mast. I have seen the photo and after a momentary gaze at it you know that regardless of any laws it is just wrong.

When you then find out that, according to the Guardian, the image appeared in Playboy magazine with the full knowledge of Ms Shield’s mother it does nothing to quell any doubts you might have about the picture.

If somebody took a picture of a child like that and went to Boots to have them developed, you would expected the shop assistant to get straight on the phone to the police and the photographer arrested and jailed.

In all this preamble you may be wondering why this is appearing on my blog, which is ostensibly about Freedom of Information.

Well I asked for the legal advice supplied to the gallery by Withers LLP [link] on the assumption that they must have thought it was ok for the photograph to be displayed or it would never have gone on show.

Why do I think I should see the advice from the lawyers and break the sanctity of the S.42 (Legal Professional Privilege) exemption? Well as I see it there are two possible scenarios.

Firstly the lawyers told the Tate Modern not to put the picture on display but the gallery went ahead with it, risking prosecution knowing the image was potentially obscene. In which case there is a clear public interest in knowing that the state funding museum is run by people prepared to wilfully break our obscenity laws.

Secondly the lawyers told the Tate Modern the image was fine to display and shouldn’t bring any attention from the police. If this is the case then there is a clear public interest in knowing exactly what this erroneous advice was, as it was paid for with taxpayers money.

Of course there is a third possibility in that the advice from the lawyers was inconclusive (which would not really a big surprise). In which case I still say there is a clear public interest in establishing what the advice was, when it is taxpayers money being spent on it.

As an aside I don’t really think it takes swanky city lawyers to pontificate on whether this image should have been shown in the gallery or not – if you look at it you know it’s wrong and I challenge anybody to say different.

Well my request for the information was turned down by the Tate Modern. I appealed to the Information Commissioner, who also ruled against me [decision notice].

I then appealed to the Tribunal, but my appeal was out of time by a few days. The Tribunal allowed my appeal but the Information Commissioner appealed against me appealing out of time (confused!). The Tribunal then came down on my side and as we stand at the moment I am taking the Commissioner to a Tribunal over the matter.

WARNING: For those of you who want to see the image the head of Ms Shields, which cannot be considered indecent is on the Guardian site’s story of the controversy [here]. There is a website called iconic images which has the full picture which can be viewed (but don’t then come moaning to me) that you have been upset, revolted etc. It can be seen by clicking [here].

Lockerbie row rumbles on

Libyan leader Colonel Gaddafi never travels without his female bodyguards

Abdelbaset Ali Mohmed Al-Megrahi is the man some people think was responsible for carrying out the bomb attack on Pan Am 103 that crashed into Lockerbie killing a total of 270 people.

His conviction and his subsequent release on compassionate grounds has been the subject of a great deal of controversy.

Some people say he was innocent of the crime and should never have been imprisoned some say the least he deserved was to die in jail.

When he was diagnosed as being terminally ill with prostate cancer a decision was made to allow him to go back to his Libyan homeland for the last few days of his life. This took place in August last year.

The nub of the issue in his release was that he was only expected to live for a further three months and allowing him home was the humane thing to do.

Ten months later he is still alive and MSP George Foulkes wants to see the monthly medical reports on Al-Megrahi’s condition that are logged with East Renfrewshire Council.

Clearly the information is covered by the Data Protection Act and as medical data would also be considered to be ‘sensitive’.

Mr Foulkes said there was a clear public interest in the matter becoming public knowledge but because the data was subject to schedule 3 there were only two possible ways the information could be released.

Firstly if Mr Al-Megrahi gave his explicit consent to the information being released. He was contacted and didn’t give permission.

The second exception was if the information had already been made public by the deliberate actions of the data subject.

The Commissioner made checks to see how much of the medical data about Al-Megrahi he himself had made public and found media reports with generic information that his condition was getting better or worse. But there was no specific information in the reports.

So, the reports will remain secret. However, I’d be interested to know if people think making the same application after Mr Al-Megrahi dies might be successful.

Mr Foulkes is reported as saying: “Foulkes said: “I am very disappointed that the freedom of information laws within Scotland don’t allow the public access to this information.

“It is clear that Megrahi, through his lawyer, has vetoed it. This is matter of not just national interest but also international interest. There are relatives of Americans who died who are concerned about it.”

The decision [link] has caused some controversy in Scotland. In February, Bill Aitken, justice spokesman for the Scottish Conservatives, said: “It is almost bizarre to suggest that the biggest mass murderer in Scottish history should be just like any other client. He is not. The public have a right to know what is going on.”

Singing like a Canary….Wharf

Time to reconsider the public interest test again

The merits or otherwise of torture is not really a topic I thought I would be discussing in detail on this blog, but the fact that I am just goes to show the true wonder of FoI.

Now some say that torture is a pointless exercise and I have to confess that if you strapped me to a chair and came at my sweetbreads with a set of jump leads I’d tell you everything including next week’s Lottery numbers.

So the practical usefulness of torture has often been debated alongside the moral argument as to whether it is something civilised society can ever justify.

Enter stage left a FoI question to the Metropolitan Police Service (MPS) asking them for information about a plot to hijack planes and fly them into Canary Wharf.

The question followed a statement from President George W. Bush in September 2006 when he said that ‘questioning’ of terrorist suspects in secret detention facilities had averted an assault on Canary Wharf.

As somebody who thinks torture is a bad thing but also has friends and a relative working in Canary Wharf this causes me something of a moral dilemma.

What is needed is a little of the smoke to be blown away to see if there is any truth behind the alleged plot to fly a plane into the capital’s iconic business tower block.

The question to the MPS asked ‘how a plot… was foiled using information from the programme to detain suspected terrorists in undisclosed locations outside the US’.

Initially the MPS refused to confirm or deny it held such information relying on a total of six exemptions. Eventually this seemed to boil down to just three; S.23 (Security Bodies), S.24 (National Security) and S.27 (International Relations).

The Commissioner rejected the NCND position of the MPS and said it should state if it had the information or not. The MPS took this decision to the Tribunal.

At the Tribunal evidence was produced for the first time by an officer referred to as Det Chief Supt W who convinced the panel that if the MPS held the information it would have come through one of the intelligence agencies listed in S.23.

My reading of the decision and it appears something of a technical victory for the MPS is that the appeal was allowed on the basis that the question asked about “information from the programme to detain suspected terrorists….” This information must have come from a security body and so to confirm or deny would be a breach of S.23.

However, the way I read the decision leaves the door open for a simpler question just asking if the MPS holds such information, but doesn’t inquire as to where the information originated. I’d be interested in your thoughts.

Two other points worth mentioning from this decision are the stick the Commissioner takes for taking so long to reach an initial decision on the appeal. The Tribunal does not say exactly how long this was but states: “the requestor might be forgiven for having forgotten that he had made the request”.

Secondly the Tribunal makes an interesting comment on the general topic of this case and its wider significance saying: “We have remarked already on the wide ambit of s.23. It is not hard to understand why it is broadly drafted.

“In this particular case, however, we are concerned as to its effect. The interrogation of detainees in offshore facilities, the methods allegedly used, the use of information thereby obtained and the possible collaboration of the U.K. government in these activities are still matters of vigorous and anxious debate in this country.

“Whether the CIA passed to UK intelligence the information referred to by President Bush may be a question of considerable importance in such a debate. In the rather unusual circumstances of this case (where a head of state has publicly announced the source of terrorist intelligence), it is hard to see that any significant damage could be caused by confirmation or denial.

“The extreme rarity of such announcements might be seen as a robust defence to the dangers of creating precedents.”

The Tribunal was also critical of the MPS for not bringing forward the crucial evidence of how the link was made to the security services until the Tribunal stage. Had it been done earlier it would possibly have saved everybody time and money.

The Tribunal’s ruling can be seen [here].

Getting personal with Dr’s information

Can I disclose that personal information because it's in the public interest?

An interesting decision has been published from the Tribunal giving more insight into how it approaches the question “personal information”.

In this latest case the Tribunal has overturned the Commissioner’s initial decision that the personal information could be kept secret.

It has now ordered the General Medical Council to release documents about a doctor who sat on its Fitness to Practice Committee and got into hot water over his links to the controversial Church of Scientology.

The Tribunal clearly spelled out the main issue in the case when it said:: “There is an inherent tension between the objective of freedom of information and the objective of protecting personal data”.

Indeed the issue of how the Data Protection Act and the Freedom of Information Act co-exist is something that will keep academics and lawyers busy for years. Freedom of Information gives you a right to have information while the Data Protection Act is a law to stop people giving that information away.

Ultimately it would appear that a judgement has to be made when a FoI request comes in to decide if the rights of the requestor override the rights of the data subject.

The three point test that appears to have been adopted is:

         i.            There must be a legitimate public interest in disclosure;

       ii.            The disclosure must be necessary to meet the public interest; and

      iii.            The disclosure must not cause unwarranted harm to the interests of the individual.

In this case the Tribunal ruled that the public interest was more powerful that the rights of the individual and have ordered disclosure.

However, the case is still subject to an appeal and so the actual information on which the decision was made have not yet been released.

Here is a link to the Tribunal’s decision [Ref: EA/2009/0063].

From a personal point of view I am cheered by the decision as it would seem to strengthen my arguments into the release of the performance objectives of the chief executive of London 2012. If anybody knows how I could contact the applicant, William Thackeray, I’d be very grateful.

UPDATE: 27.2.10: All the details of this appeal are on WhatDoTheyKnow. Apparently it is the first case from WDTK to reach the Tribunal. Congratulations to both Mr Thackeray and WDTK. Here is a link to the history of the case [link]