Tribunal rules on Council row over pay

As a journalist what I really like about the Freedom of Information Act is that behind every Decision Notice there is a story – from MPs expenses and the legal advice on the war in Iraq, right down to neighbourhood disputes.

A recent ruling from the Information Tribunal is a case in point, which although some might say is very much a “local” issue, it throws up legal points that may well have bearing in much more high profile cases.

So this decision takes us to the former pit village of Ferryhill, in County Durham. Population 10,000 and a Town Council that although Labour Party dominated has been infiltrated in recent years by members from a new party called FAIR (Ferryhill Association for Independent Representation).

One of FAIR’s gripes was the fact that the local council tax had risen sharply in recent years and much of this it claimed was down to sharp wage rises behind the doors of the Town Hall.

The Council’s chief officer Jamie Corrigan was singled out by FAIR as the main culprit and a Freedom of Information request was sent to the council to ask how much he was paid.

In Ferryhill things were about to get personal as the person sending in the request was FAIR councillor Brian Gibson and the person on the receiving end was – yes you’ve guessed it Jamie Corrigan.

A long story can be cut down to say that Mr Corrigan’s salary band has been revealed as being between 54k to 62k. But that’s not enough for FAIR. They want to know to know exactly what he is being paid and how much of that is made up with the overtime, it is claimed he amasses by spending extra time in the office dealing with Freedom of Information requests from Mr Gibson.

So when the matter came before the Information Tribunal they had to deal with what is becoming something of an old chestnut – would it be a breach of S.40 (Personal Information) to reveal Mr Corrigan’s exact salary and overtime payments.

The simple answer is that the Tribunal declared that it would be a breach of S.40. in that Mr Corrigan’s rights under the Data Protection Act would be infringed.

I spoke to Mr Gibson today and he said: “I’m disappointed with the judgement. I could appeal but I don’t think I will.

“I’m a councillor. How can I set budgets when I don’t even know what the council staff are earning? This is public funds, why the secrecy?”

I have to say that I have some sympathy with Mr Gibson. If elected on a platform to establish if the Town Hall was feathering its own nest it can certainly be claimed that there is a legitimate public interest.

Where the claim falls down of course is would the disclosure cause “unwarranted harm” to the individual, and is that outweighed by the public interest. Sadly for Mr Gibson the Tribunal decided it wasn’t. Is this bad news for my hopes of squeezing the details of the Olympic Delivery Authorities £250,000 bonus criteria? I don’t think so really.

For those of you who would like to read the Tribunal’s decision the link is [here].

“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.

Boris Johnson coy over his EastEnders’ fee

When Boris Johnson appeared in EastEnders I realised the clash of two public authorities was too good an opportunity to miss.

The BBC, forever hiding behind its “artistic and journalistic derogation” has never given out any info on its most famous soap.

Despite the theatrical nature of the new London mayor “BoJo” cannot avail himself of the same get out clause, so I was hoping to use City Hall as my entrance ticket into the murky world of EastEnders.

I basically asked for everything City Hall held on Boris’ appearance on the show and I received (15 days late) a very complete record of e-mails that bounced around between the two organisations.

But what I didn’t get were two e-mails that related to how much the fabulously wealthy Eton-educated Boris got paid for his brief appearance.

The e-mails from the Beeb say that everybody who appears on the show has to be paid and Boris’ team seem happy with that and agree the cash should be donated to charity.

At that point one would think there was nothing controversial about the matter – but City Hall refuse to release the charity or the amount claiming S.43 (commercial interests).

City Hall says in its response: “The two e-mails covered by the request constitute commercially sensitive information.

“The detail and naming of the charity involved in way of receiving the appearance fee for the Mayor’s appearance in EastEnders would be likely to be detrimental to the charity itself as information within the e-mails is not factually correct.”

It goes on: “In this case disclosure of this information would be likely to have a detrimental impact on the reputation of the charity in receipt of funds apportioned from the Mayors appearance fee from appearing on EastEnders due to the inaccuracy of some of the facts contained within the e-mails.

“The degree of prejudice to be suffered is likely to be far-reaching to a third party given in particular it is a charity and less likely to have the resource available to cope with the adverse publicity, therefore having a great impact on their commercial interests.”

What is amazing about this decision is the fact that disclosure appears to have been blocked based on the fact there are errors in the e-mails – which is no excuse for non-disclosure. My understanding is they should be released with adequate commentary explaining what in them is wrong.

Also I wonder what charity he decided his fee should go to? (Any suggestions please mail them in). But why be so coy about where the money was directed to? And surely there is a public interest in knowing where he wanted the fee to go to, considering his cameo in EastEnders only came about by virtue of his public office.

You won’t be surprised to know that I’m in the process of appealing it – and I also hope they refuse again and make an issue out of it.

For those that missed Boris lock horns with Peggy at the bar of the Queen Vic I’ve added the clip from YouTube.

UPDATE: I managed to unearth a story from the e-mails that were sent through.

UPDATE: 4.2.10: My appeal to the GLA was successful. On review they accepted that S.43 was not applicable as here we were talking about a charity and not a commercial organisation. Boris’ fee from the Beeb was £362 and he passed it straight on to Friends of Classics, a charity devoted to keeping Latin and Greek ‘flourishing in our schools’.

Commissioner “…insufficiently rigorous”

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.

What happened to the Duty to Assist?

A case worse than the missing pineapple chunks.

What would Fletch have to say about this then? As we all know under FoI legislation the person responding to the question has a duty to assist the applicant.

A long time ago I put in a request with the Home Office about items being left outside the perimeter fence of Ford open Prison, in Sussex, which the inmates then went and collected.

These “items” were reported to be phones, alcohol and drugs – all things that inmates are not supposed to have access while at Her Majesty’s pleasure.

I asked for any Security Information Reports related to such finds and this request was communicated to the prison by the Home Office.

It liaised with the prison and came up with a copy of the answer for me but before it was sent out the prison was given a chance to comment.

The e-mail, which you can see at the bottom of this post, says: “Just to clarify the point. There were no Security Information Reports relating to items left outside for collection.

“This is not to say that we did not have any information about items left outside the perimeter. This is an ongoing issue that is continually monitored.

“If a member of staff saw a suspicious item they would check it and take it to our Security department.

“They would not necessarily submit an SIR. This part does not necessarily need to be disclosed.”

I love this last sentence: “This part does not necessarily need to be disclosed.” How does that sentiment line up with the new era of openness heralded by the Freedom of Information Act, or should I say the Not Necessarily Need to Be Disclosed Act.

The document has been sent to me by the MoJ some three years after my initial request to the department for the discussions around my requests to be disclosed.

It was part of my meta-request and it appears after £100,000 of legal advice the MoJ has now completely backed down and agreed to give me all the information I wanted. I am wading through all the paperwork but I can see why they were so reluctant to release it now.

Royal Mail stripped of its exemption leads to exposure of its Benny Hill fears

Did Benny ever worry about the lack of full and frank discussions?

One of my first complaints to the Information Commissioner this year appears to have been resolved in my favour - the result of which turned up a jem of a story about Benny Hill.

Way back in January I asked the Royal Mail for the minutes of its Stamp Advisory Committee. This is a body that meets a few times every year to decided the designs for our stamps.

I wanted to see the minutes to see what designs had been blocked and why. The Royal Mail turned my application down saying to the information was exempt under S.36 (Prejudice to the effective conduct of public affairs). I appealled and surprise, surprise I was turned down again.

My appeal was lodged with the Commissioner, and although I haven’t heard anything for about six months, last week I got an envelope through the door (it amuses me how the Royal Mail still prefer to post out some of their responses as if e-mail was never invented). In it were the minutes I had asked for, although there were still a few redactions.

It would appear that this is the way a large number of appeals will be settled these days. The Commissioner’s office looks at the case and then tells the public authority to sort its act out. The matter is then sorted out informally without the need for a Decision Notice.

When I did get to see the minutes it was noted that a set of stamps to celebrate 50 years of ITV was being planned but that Benny Hill was not going to feature in the set. The key item in the minutes that had not been redacted was that it was felt Benny Hill’s jokes were “in direct opposition to the company’s policies on harassment in the work place”.

I’ve embedded a classic clip from Benny Hill as well as the article as it appeared in the Daily Mail.

Commissioner blows out the Beeb

Can't see Christopher Graham anywhere

The new Information Commissioner Christopher Graham has had to turn down a plush trip to the Last Night of the Proms after finding himself in an embarrassing conflict of interests.

In July this year Graham responded to an invitation from the BBC’s Vice-Chairman Chitra Bharucha to free tickets at the BBC showpiece at the Royal Albert Hall for himself and a guest. He e-mailed the BBC to say he would be “delighted” to accept the “kind invitation”.

It appears that new to the job Graham didn’t realise just how at loggerheads the BBC and the Information Commissioners office were.

Ten days later he e-mailed his contact at the Beeb to say: “I am very sorry to have to cancel for the Last Night. I do apologise and thanks to Chitra for the kind invitation.

“One month into the job, I realise that there is quite a bit of unfinished business between the Information Commissioner and the BBC.

“Under the circumstances, I don’t think I should be accepting invitations of this kind. What a shame!”

The initial invite had been in a private box at the concert with ten others starting at 7.30 with drinks served in the interval.

The exchange of e-mails was released by the Information Commissioner’s Office following a Freedom of Information request to WhatDoTheyKnow.com [link].

You can read the full redacted transcript here. CG and BBC e-mails

Are they X Factor or Strictly fans

It will be interesting to know if the BBC will be inviting Graham, a former BBC employee, next year. Because of course the picture looks a lot rosier for both organisations now.

The decision of the High Court to prop up the BBC derogation means the BBC is happy that it can cling on to its financial secrets.

But the verdict can’t be too disheartening for Graham either – he was not responsible for the previous line on the derogation – but now he can immediately clear-up dozens of troublesome appeals that were adding the Commissioner’s embarrassing backlog.

Break out the bubbly.

During Richard Thomas’ tenure at the Information Commissioner’s Office there was a strict policy of making sure all gifts were pooled and then distributed among staff via a raffle.

I wonder if any of the £18k case workers the Commissioner is advertising for will be hob-nobbing with the great and the good at next year’s Proms?