FoI bugging the bugging watchdog?

Should we be expecting less kick and more water in the future from the OSC?

Tucked away in the Annual report of the Office of the Surveillance Commissioners (OSC) was an interesting nugget for those of us with an interest in Freedom of Information - the quango’s boss Sir Christopher Rose issued an apology for misinterpreting FoI law - but he gave away a much more telling comment about how he intends to deal with the legislation in the future.

Much to annoyance of many people the OSC was not and it appears is in no danger of being brought under the FoI regime. However, its sole duty is to monitor the way public bodies use surveillance and bugging techniques and is responsible for ensuring that authorities allowed to use such powers are not overstepping the line.

The OSC’s staff has a constant monitoring process going on which ensures they regularly produce reports for authorities on the way they have been using surveillance techniques. These reports cannot be obtained under FoI from the OSC because it is NOT covered by FoI.

But what has clearly annoyed the OSC was that those devious people from the media were asking for copies of his reports from the organisations they were then sent to.

A petulant Sir Christopher wrote in his annual report last year:

During this reporting period there has been a significant increase in the number of Freedom of Information requests from the media. It is not usually an area on which I comment but I report my concern. I never disclose the contents of my reports to anyone other than the relevant Chief Constable or Chief Executive. But requests to the recipients of my reports have been aimed at acquiring my reports, my correspondence to and from Chief Officers and the action plans related to the recommendations that I make.

 Responses by public authorities have been inconsistent and there is the perception that a decision by one authority to respond positively may lead the requestor to view negatively those which do not

disclose the information requested. When asked for guidance I have responded that it is in the public interest to demonstrate that covert surveillance conducted on behalf of the State is properly

regulated. This Annual Report is designed to provide that assurance. Seeking assurance of regulation is one thing, but attempting to acquire, under the auspices of freedom of information, operational details or knowledge of covert techniques is another. Redaction of these details from my reports could be misconstrued as secrecy or might adversely affect context and meaning.

 I favour the advice provided by the Information Commissioner (Guidance Note 25). I regard myself as a ‘qualified person’ as defined by Section 36 of the Freedom of Information Act and it is my ‘reasonable opinion’ that for public authorities to disclose the contents of my reports would prejudice the effective conduct of public affairs. The risk of disclosure might tempt some individuals to withhold the full details of covert activities from me or my representatives; it might inhibit my ability to provide the evidence that is necessary to support my recommendations and it might inhibit the free and frank exchange of views and provision of advice that is currently the hallmark of the relationship which my Office enjoys with public authorities.

 However this year he sounds a good deal more contrite:

Last year I commented on the impact of the Freedom of Information Act and the pressure on public authorities to disclose my reports. My intent was to address the difficulty of balancing transparency with the need to protect covert techniques and activity. They are not comfortable bedfellows. In order to provide evidence to support my recommendations, I frequently have to provide detail of

specific investigations or tactics. I protect my reports in accordance with the Government Protective Marking System. Without this evidence and protection, they would be of little value to the authority reported on. Redaction, however, can attract adverse comment. The OSC never discloses the content of its reports to third parties.

 I misled myself regarding section 36 of the Freedom of Information Act. I am not capable of being a ‘qualified person’ within the meaning of that Act. I therefore confirm that the decision whether to disclose my reports, and if so in what form, rests with each public authority. I have promised to review the design of my reports to assist public authorities to meet their obligations.

 What do we think does this last sentence means? Is he admitting that he is going to make sure less information of the kind he does not want disclosed is put in the reports because of the Freedom of Information legislation? Is this the first concrete example of the so-called ‘chilling effect’ where FoI laws actually work to create less openness because people are frightened and wary of disclosure?

 On a final point on this matter it may be that between Sir Christopher’s comments in the 07/08 report and his climb-down in the 08/09 report, the decision by the Scottish Information Commissioner could have had some influence.

 In a judgement against the Scottish Prison Service (SPS) the Scottish Information Commissioner ruled the report of the OSC should be made public subject to a few redactions in particularly sensitive sections.

 The decision notice stated: “The Commissioner does not accept the arguments put forward by the SPS that a statutory body with a defined statutory task, such the OSC, would materially water down the content of reports on the basis that they might be made generally available to the public.”

 It would appear the OSC may have decided he is going to do exactly that in future - should we expect a dilute future from the OSC?

[link to OSC report 07/08]

 [link to OSC report 08/09]

 [link to decision of Scottish Information Commissioner is case of the Scottish Prison Service]