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.

Scots Parliament loses McMeta request battle

Once you get a meta-request it can go on and on and on and........

The subject of so-called meta-requests (a request about how an earlier request was dealt with) has been one of my pet subjects after being found ensnarled in a saga over one such question with the Ministry of Justice.

My case is still rumbling on, after being bounced back by the High Court, although the MoJ has now provided me with two huge files of papers which I am working my way through.

Not to be outdone the Scots have also managed to get themselves embroiled in such a dispute over a request – and just like the decision south of the border the Scottish Information Commissioner has ruled against a blanket ban on such requests.

In Scotland the process began in August 2008 when Mr David Rule made a request to the Scottish Ministers for information. He was provided with an answer in October 2008.

Mr Rule then put in a request asking for a copy of the report that had been prepared by officials who had been responsible for putting together the response to his original question.

This was refused on the basis that the information was subject to S.30 of the Scottish FoI Act which mirrors S.36 (Prejudice of public affairs) in England.

When the case went before the Scottish Information Commissioner the Ministers plea for non-disclosure was that officials would be less likely to give “free and frank” advice if they knew in the future it would be made public.

However, the Commissioner ruled that the exemption did not apply to the report and so did not even go on to consider the public interest question.

He stated in his ruling that: “The Commissioner looks for authorities to demonstrate a real risk or likelihood that actual harm will occur at some time in the near (certainly the foreseeable) future, not simply that harm is a remote possibility.

“Also, the harm in question should take the form of substantial inhibition from expressing advice and/or views in as free and frank a manner as would be the case if disclosure could not be expected to follow. The word “substantial” is important here: the degree to which a person will or is likely to be inhibited in expressing themselves has to be of some real and demonstrable significance.”

Clearly the Commissioner is saying that the bar is set high for this exemption and in this case the Ministers didn’t really get anywhere near close to it.

The Decision Notice goes on to say: “The Commissioner does not accept that disclosure of this information would prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.

“The prejudice envisaged, which entails the discontinuance of the production of such written reports to be replaced by oral feedback instead is not in the Commissioner’s view justified by disclosure and therefore should not be regarded as inevitable or likely.

“Any sensible reading of the report would show that it is a thorough and well-written account. Far from containing trenchant criticism it is largely factual and does not apportion blame but indicates where improvements can be made. Disclosure would not be likely to affect the nature or tenor of such a report, which shows the Ministers taking their freedom of information responsibilities seriously and would not justify the discontinuance of the production of such a report. The avoidance of such prejudice is entirely within the control of Ministers through the management of their officials.”

So the conclusion is that meta-requests are NOT automatically exempt from disclosure and any reports or correspondence on how an authority came to make a decision in relation to a Freedom of Information request can be disclosed.

But the key element here is that the meta-request has to be handled independently of the first request and it may be there is exempt information – but it all depends on the specifics of the case – north or south of the border.

You can find the decision notice [here] .

Making a meal of a meta-request

Will it be worth the wait to see what's inside?

The saga of the so-called meta-request goes on….and on…. and on.

In January 2007 I asked a question of the Home Office about the way it had been treating my requests as I had evidence that it dealt with mine differently from the general public. This is a breach of its responsibilities under the Freedom of Information Act in that it should be “applicant blind” when it deals with requests.

My request was refused, I appealed and the appeal was thrown out as the information was deemed to be covered by Section 36 (Prejudice to the effect conduct of public affairs).

I took the case to the Information Commissioner who ruled in my favour and then the Home Office appealed against that decision, linked up with the Ministry of Justice, and took the case to the Information Tribunal.

At the Tribunal the Government tried to argue that meta-requests - the process where somebody asks questions about the way their question has been handled - were in some way an abuse of process.

This argument was rejected by the Tribunal and I sat at home waiting for the 1,250page bundle of documents to arrive in the post.

But that wasn’t the end of the matter and the Government appealed the decision to the High Court where a hearing took place earlier this year.

That decision has now been announced and again it was ruled that meta-requests are NOT an abuse of process and should be dealt with like any other Freedom of Information application.

However, there is one big BUT. The High Court has allowed the Home Office the opportunity to go through the material to see if any other exemptions apply to it. For good measure it is now claimed that although S.36 does not apply to it the Tribunal will have to rule if section 31 (law enforcement), section 35 (formulation of government policy), section 40 (personal information), section 42 (legal professional privilege), and section 43 (commercial interests).

So to summarise, two and a half years after I asked the question the Home Office has now been forced to do what it should have done all along - look at the question and see if it could and should answer it. Because of it’s ineptitude it has wasted hundreds of hours and thousands of pounds, essentially because it thought it shouldn’t have to answer my question.

Here is a link to a question I have asked on WhatDoTheyKnow asking for the figures of legal costs associated with the case both for the Information Commissioner [link] and the Home Office [link].

Here are copies of the decision in this case by the [ICO], the [Tribunal] and the [High Court].