Waste? Yes. Waist? No.

Thanks to the Daily Mirror for this.

When our new Justice Secretary Ken Clarke was interviewed on the television about his appointment in the cabinet he made a joke about how he looked in silk stockings.

Hopefully as somebody who rarely misses a trick I thought I’d wait to see what his inauguration outfit looked like before firing in a question to the Ministry of Justice.

When the answer came back that the clothes he wore for the ceremony cost around £20,000 it was clearly going to be a story – although from my point of view it was a shame that the vast bulk of the cost was incurred by Jack “The Veto” Straw who felt it necessary to spend £18,000 on the gown. Who says politicians can be out of touch?

Anyhow the reason for bringing this story to your attention is that when I sent in my question to the MoJ I couldn’t help myself and thought if I’m paying for Ken Clarke’s breeches then I wonder what size they are.

But the MoJ didn’t fall for that. Although they gave me the cost of his costume the details of his girth will remain subject to a S.40 exemption. [MoJ response]

The MoJ said: “Section 40(2) provides that personal data about third parties is exempt information if one of the conditions set out in section 40(3) is satisfied. Under Section 40(2) together with section 40 (3) (a) (i) of the FOIA disclosure of this information relating to third party would breach the fair processing principle, as there was a legitimate expectation by a third party, that this information would remain confidential.”

And we must remember that disclosure of his breeches would be a breach of the Data Protection Act.

Would-be Commissioners’ notes to be kept secret….for now

Interview tables should be wide enough to avoid physical confrontation but narrow enough that you can hear each other.

Last year the Information Commissioner issued a Decision Notice which sent ripples of worry through the Human Resources departments in public authorities.

It ruled that a council employee, who had applied for two internal vacancies, had the right to see various details of the other candidates as long as their identities were kept secret.

I wrote about the Decision Notice [link], which was issued against Leicester City Council, in March 2009 (Giv Us a Job).

The Information Commissioner said in that Decision Notice: “Some of the information about applicants’ experience and qualifications could be provided in an anonymised form, without breaching their rights under the Data Protection Act.”

Why am I regurgitating the details of an old Decision Notice I hear you ask?

Well I thought this ruling was interesting and was just waiting for a real life situation to come along that would be a good test.

So what could be more appropriate than the appointment of the Information Commissioner Christopher Graham? What did the interview panel think of the candidates? What sort of qualifications and background did the unsuccessful would-be Commissioners have?

I sent in my question on WhatDoTheyKnow [link] and surprise, surprise the Ministry of Justice refused me claiming the information was covered by S.40 (personal information). I appealed and made it clear I didn’t want any names or anything that would identify any of the applicants.

Quick as a flash – well quick when you consider how long you normally wait for a MoJ appeal – they came back upholding the appeal.

So what do I do now? I have to say the temptation to lodge an appeal with the Information Commissioner will be too great to resist.

If I do surely it means the information has to be sent to the Information Commissioner so he can examine it and then make a ruling on whether the notes do in fact identify anybody. Of course if he were to side with the MoJ it would make the Leicester City Council decision look suspect.

Once again it appears to show one of the unwritten laws of FoI, in that there is one application of the rules for hard-pressed, doing their best lower tier public authorities and a whole different set of standards for those that breath the giddy atmosphere of Government.

Remember. At job interviews and weddings it is important to dress appropriately!

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.

Nice work if you can get it

Well worth the money.....

When the employees at the Information Commissioner’s office next look up from their in-trays to wonder why the Ministry of Justice so openly underfunds its illegitimate offspring in Cheshire they might want to ponder on modern art.

Because while they gather round the coffee machine looking for small change the people who hold the purse strings in London have just splashed out £118,000 on a modern art sculpture for its HQ.

This work which the artist describes as a “monument to uncertainty and infinite possibility” was just one of four pieces specifically commissioned for the MoJ.

We know how much it cost because the Department of Culture, Media and Sport capitulated in their attempts to keep the prices it pays for artwork secret and now publishes them in an annual report [link] – something it didn’t do before the Freedom of Information Act came in and something they tried to oppose, claiming it should be covered by the S.43 (Commercial Interests) exemption.

I know this because it was I who took the case to the Information Tribunal in relation to an art installation at the National Maritime Museum. It was one of the first Tribunal cases in the country and the cowardly Commissioner was against me claiming the information was covered by S.43.

Fortunately the Tribunal panel could see the immaturity of the Commissioner’s argument and sided with me saying S.43 was not even engaged so they didn’t bother to go on to consider the public interest argument.

The artist whose piece of work was at the centre of that argument in front of the Tribunal was Conrad Shawcross, who is later emerged got paid around £20,000 for his collection of wooden hoops called Continuum, which were described as a “wooden spring like structure…moving through itself in perpetuity”.

Getting back to the MoJ, guess who is the artist behind the curious heap of wood in its coffee room…. yes you’ve guessed it, Conrad Shawcross.

Conrad with his "cheap by comparison" collection of hoops at the National Maritime Museum

What better proof could you have that S.43 didn’t harm the commercial interests of Mr Shawcross. In 2004 he flogs a selection of wood to a publicly-funded museum for £20,000 and then three years later he sells another collection of wooden pieces for £118,000. I would say it is quite clear Mr Shawcross didn’t need the protection of S.43 and the Tribunal were right.

You can find the Information Commissioner’s decision on the case [here] and the Tribunal’s ruling on it [here] . If you’d like to know more about Mr Shawcross click [here] for his art or [here] for his wiki entry.

If…you can find a court record while others….

Is a person's record of conviction open to the public for inspection?

I have always been an advocate of a central, publicly accessible database of the criminal convictions of everybody in the country.

Mainly this comes from my experiences as a court reporter, being sent by a local paper to cover the magistrates court. Often I would find myself in one courtroom covering what was perceived to be a “good” case while other defendants were being dealt with in the other courts.

What you ended up with was the people who were unlucky enough to have me in the courtroom with them found themselves plastered all over the paper, while those in the other courtrooms were able to slink back into anonymity.

Why should it be that the experience of the local court reporter, and the financial and editorial priorities of the local paper determine which criminals have their convictions known to the public, and which manage to keep them secret?

This quirk in the criminal justice system has been exposed in an Information Tribunal ruling where John Carleton was attempting to find out from Worcester Magistrates’ Court the fate of a relative who had been before the JPs.

His attempts to obtain the record from the court were unsuccessful, and even after paying £25 to the court, the information was still not made available to him.

A Freedom of Information Act request was lodged with the Ministry of Justice (MoJ), which has responsibility for Her Majesty’s Court Service (HMCS), but it was turned down on the basis that it could not confirm or deny it held the information.

The Information Commissioner then took almost two years to uphold the MoJ’s decision although it was noted that it could have assisted the applicant more in directing him towards another piece of legislation that may have allowed him access to the court register.

When the Tribunal considered the verdict in upheld the view of the Commissioner, but it did however point out the strange situation the law has got itself in over the matter of court records.

It said: “The Tribunal notes that there are apparently anomalies created by the current Freedom of Information and Data Protection legislation in this area and which are mentioned briefly below.

“If the Appellant, as a member of the public, had attended the court on the relevant date there is no reason to suppose that he would not have been able to hear all the information that he was requesting because it would have been part of the normal, public court proceedings.

“If the Appellant had found out that the press or the media had covered the case and was able to get a copy of the newspaper report or media broadcast then – although the personal data in question would have been processed by becoming part of those reports – the Appellant would have had legitimate access to the information and the personal data he was seeking.

“If the local newspaper or media outlet put the court report within a webpage on the internet or as a “podcast” to be downloaded by the Appellant – whether there was a “search” facility on the site allowing specific names or topics to be highlighted and retrieved or not - and then viewed, printed out, played or stored, then all of that is legitimate processing of personal data within the current statutory legislation.”

The Tribunal has asked for this situation to be communicated back to the MoJ – but don’t expect any swift changes in the law. As for the applicant Mr Carleton, presumably he still doesn’t know what happened to his relative on that fateful day at Worcester Magistrates’ Court. He says that he wants to information so that he could help out his relative financially. The ruling doesn’t explain why he couldn’t just ask his relative.

The full Tribunal decision can be found here. [link]

Working on the chain gang…..

Paul enjoys a life in the sunshine rather than the 'hell' of the jail's Information Governance team.

The Ministry of Justice has suffered an embarrassing failure to uphold the S.43 (Commercial Interests) exemption in a dispute over contracts for prison labour.

Although chain gangs may be a thing of the past prisoners in England do have jobs for commercial organisations managed through the jails where they are held.

An attempt by a Freedom of Information requester to find out who these contracts were with and how much they were worth was rebuffed by the Ministry of Justice (MoJ) on the basis that the data was subject to S.43.

The Information Commissioner was eventually called in to rule on two parallel appeals on the subject, one relating to ten prisons and the other relating to eight jails.

In both cases the Commissioner ruled that S.43 should not have applied to the information and so didn’t even have to go on to consider the public interest test.

He also made critical comments about the amount of time the MoJ took to deal with the internal reviews in both cases – more than 190 working days in one of the cases and more than 250 working days in the other.

On the topic of S.43 the public authority stated in its internal review notice that: “… the likely consequences of the identification of companies holding contracts with prisons will include loss of business, lay-offs of workers, becoming the subjects of campaigns against the use of prison labour and adverse publicity, all of which we feel would prejudice commercial interests, as has happened in other cases.”

It also claimed that in one case the end customers did not know it was prisoners who were the labour force behind the product and if they found out they might cancel the contract.

A whole host of arguments were put forward by the MoJ in an attempt to justify the S.43 exemption. It claimed the prisons could lose money if contracts were cancelled, the contractors would be put at a disadvantage to competitors, and contractors might have to lay off non-prison staff.

However, the Information Commissioner ruled against all these arguments and said the exemption was not even engaged, especially as the information requested was not particularly specific in terms of the actual contract, such as the number of prisoners employed etc.

Although the MoJ did not rely on S.38 (health and safety) the Information Commissioner went on to consider it, in relation to non-prisoner employees of a company using jail labour.

The Commissioner said: “Whilst the Commissioner understands that a contractor has a duty of care to its staff and notes its concerns, he can find no evidence to support its stance that its staff may be put at risk by disclosure of the information requested in this case in particular, or by public knowledge of its involvement with prison labour in general. Although there is information available on-line to suggest that a well known retailer was targeted by parties who were against the association they claimed it had with prison workers, there is nothing to suggest that any harm or damage was done to its staff. There were a number of demonstrations, along with picketing and leafleting, and although it appears that some persons were ‘moved on’ by the police the Commissioner can find nothing to suggest that there was any further action than this.”

A group called Campaign Against Prison Slavery says inmates get paid around 30p an hour and have compiled a list of companies with contracts with jails in England [here] and Scotland [here] .

I have asked the Ministry of Justice to provide me with the details that should now be released and you can see the question [here] on WhatDoTheyKnow.

And the two decision notices can be seen [here] (relating to eight prisons) and [here] (relating to ten jails) .

This request was sent in by journalist Phil Chamberlain (see the comment) who has blogged about this topic [here] where you will find a link to articles on the Guardian as well as his own website devoted to investigating prison labour [link] .

Ministry of Defence: The Information Commissioner has issued a Practice Recommendation [link] critical of the time taken by the MoD to complete an internal review. The MoD seems to have particularly annoyed the Commissioner in that it has taken 40 working days as its target for dealing with internal appeals when this figure is in fact an exceptional allowance – the normal figure being 20 days. However, even using the 40 day limit statistics from the MoD showed 60% of appeals were not dealt with by the expanded timeframe, and in one case a requester had to wait 190 working days for an internal review to be resolved.

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].

Misbehaving judges to remain shielded by secrecy

The Guardian newspaper has lost an Information Tribunal in a case relating to misconduct on behalf of judges. I have reproduced the Guardian article below and this is a link to the Tribunal decision in the case.

—

The government and the judiciary can continue to conceal the names of more than 170 misbehaving judges, a freedom of information tribunal has ruled.

The judge heading the tribunal decided that some members of the judiciary who have been sacked or reprimanded for misconduct would suffer “great distress” if details of their misdemeanours were made public.

The judges’ authority in the courtroom would be undermined, and their privacy unjustifiably invaded, if the public were allowed to know how they had been disciplined, according to the tribunal.

The ruling came out in favour of justice secretary, Jack Straw, and the judiciary as they have fought a four-year battle to hide the identities of miscreants.

The three-member tribunal, led by David Marks QC, dismissed a challenge from the Guardian which had argued that the public should know which judges had been disciplined and why.

Straw and Igor Judge, the lord chief justice, are in charge of deciding how to punish judges, members of tribunals, magistrates and coroners if they behave badly in the courtroom. They can also be disciplined if their conduct outside the courtroom “tarnishes the reputation of the judiciary”.

It is known that judges have been admonished for being convicted of drink-driving, falling asleep in a rape trial and viewing porn on their official computers. An immigration judge who had an affair with his Brazilian cleaner and sent her text messages calling her “chilli hot stuff” was rebuked for showing “poor judgment” in hiring her. The cleaner was cleared of blackmailing him.

In their verdict, Marks and the two members of the tribunal said it was not “at all far-fetched to assume” that the courts would be disrupted if the public were allowed to know about judges’ misdemeanours. They cited the example of an unnamed “very senior judge who was reprimanded by the lord chief justice”.

Marks and his colleagues said that if barristers had known about the behaviour which had led to the reprimand, they would have used the information to try and get an adjournment of hearings or “in some cases an application that the judge in question not hear the particular case.

“This clearly has adverse implications for the public and for the administration of justice generally,” they said.

Marks also said judges could also experience “intrusive” and overblown reporting by the media of their misconduct. This could “cause an undermining of authority generally and thus prejudice any further employment prospects of whatever sort in the wake of a reprimand”, they added.

They were “impressed” by the Ministry of Justice’s argument that judges were entitled to a “reasonable expectation of privacy”.

They recognised that disclosure of the data requested by the Guardian would “admittedly … further the interests of transparency and accountability”. However they decided that “enough” information about the “fact and scope” of the reprimands over the past decade had already been made public.

The Ministry of Justice had published information outlining the number of times judges have been disciplined, a description of the system for adjudicating complaints, and broad categories of misconduct committed such as “inappropriate behaviour” and “misuse of judicial status” without giving further details of individual wrongdoing.

Marks rejected the Guardian’s arguments that publication of the misconduct would “enhance public confidence in the administration of justice and that secrecy is more likely to engender resentment, suspicion and contempt than enhance respect”.

The public should know if those who pass judgment on others were being disciplined correctly when they transgressed, the paper said.

The Guardian had also argued that openness would also help to ensure that judges were not persecuted unfairly by ministers.

Following pressure from the Guardian, the Ministry of Justice has pledged to be more open about judges who have been sacked in future.

Richard Thomas dodges the dole queue

Memo to new staff: "Don't mention the veto"

For those readers of FoINews who have been e-mailing me concerned at the future job prospects of the outgoing Information Commissioner Richard Thomas, I have good news.

The fall out over the Ministerial Veto has obviously been brushed over as Mr Thomas has been given a new job under the umbrella of the Ministry of Justice - and was appointed by the Jack Straw. No hard feelings there then.

When Mr Thomas leaves the hot seat at the Information Commissioner’s Office at the end of June he will hop into the top seat at the newly formed Administrative Justice and Tribunals Council.

Mr Thomas, who has been given a four-year appointment in the post, said: “The Administrative Justice and Tribunals Council has a key role in improving public justice – promoting confidence in the arrangements for resolving disputes between citizens and the public sector.

‘I am looking forward to taking up this role and carrying forward the excellent start which the Council has made under Lord Newton’s leadership.’

(link)