What is the “public interest”?

Look into my eyes...look into my eyes

What is in the public interest has always been something of a thorny issue, especially when it comes to its use in Freedom of Information.

Personally I say thank the Lords (because apparently it was the House of Lords which decided to put the public interest test into FoI) that we have this weapon to set about the Qualified exemptions.

At the moment I’m involved in two disputes over information at opposite ends of the spectrum, but both hinge on the public interest test.

The first involves the Cabinet Office and its refusal to reveal documents written by our ex Prime Minister Tony Blair that were sent to George Bush.

These notes are central to the Iraq inquiry, whose head Sir John Chilcot asked to make the documents public, and when this was refused said the decision was “disappointing”.

The crux of these documents is whether they confirm the belief among many people that Tony Blair gave his word to the US President that British troops would join the war, before Parliament voted on the issue.

You can see the history of this request at WhatDoTheyKnow [here], and I’ve blogged about this in the past [here]. The information has been denied me on the basis S.35 (formulation of Government policy), S.36 (prejudice to the effective conduct of public affairs) and S.27 (international relations).

Were our troops sent to war just because Blair had “promised”? Could there be a clearer public interest? The case is now in the hands of the Information Commissioner.

Headmaster Vic Goddard flicks the Vs at his deputy head. Mr Chips he is not.

At the other end of the scale some of you may have been watching #EducatingEssex, a horrific fly-on-the-wall documentary about a school in Harlow.

I watch the show goggle-eyed at the way the show profiteers from seeing children taken into care, getting involved in scrapes with the police, getting pregnant, abusing teachers.

We are at the end of the series next week and ironically we have seen precious little educating of the Essex populous.

As a journalist I have to tread incredibly carefully if I do a story that identifies a child, particularly if it is something to do with their schooling – but this programme seems to have side-swerved the regulations in exchange for children grabbing their five minutes of fame. Responsible journalism? I think not.

So I wanted to know how much the documentary company paid the school for the privilege of being allowed into the school.

Surprise, surprise, they will not tell me. You can see the full response to my questions [Passmores1]. But they have applied the S.43 (commercial interests) exemption, and yes you’ve guessed it the public interest is not to disclose the amount.

Amazing that the public interest is in knowing which of his students are pregnant at 15, which of them get taken into care, which of them run away from home – but not how much the school got paid for selling off the pupils’ private lives for the amusement of viewers.

I’ve appealed this back to the headmaster Vic Goddard – a man who on the show seems to insist in empathising with errant schoolchildren by calling them “mate”. I suspect this case will run and run.

NOTE: Apologies for being away for so long.

Taxi for the Beeb

BBC bigwig Jana Bennett could have saved the Corporation thousands if she'd mastered how to use the tardis.

Imagine you are an employee at the BBC and you need a taxi for yourself or a guest who is going to appear on your show.

The procedure would appear to be that you contact a company called One Transport. They arrange the taxi for you, they pay the taxi for you and then send the BBC a bill not just for the taxi ride but also for them arranging it.

More than a year ago I asked the BBC how much they spent on providing taxis for staff and guests in the 08/09 financial year – the answer came back at around £14million.

But to my surprise the BBC wouldn’t say how much of this went into the pockets of One Transport, so I appealed.

The BBC which had claimed the information was exempt under S.43(2), refused my appeal and I have ended up at the Information Commissioner’s door yet again.

He, I thought unsurprisingly, sided with me saying there was no evidence shown of how prejudice to the BBC or One Transport could be likely to occur by releasing the figure.

But then the BBC appealed and now I find myself looking down the barrels of another Tribunal with the Information Commissioner and myself on one side of the argument and the BBC and One Transport on the other.

A hearing has been pencilled in for February 17 and 18. What will be interesting from my point of view as a journalist is the BBC will not only have to show that S.43(2) (Commercial Interests) is engaged but that the public interest is in favour of non-disclosure.

Particularly as the BBC’s taxi bill caused controversy recently after it was revealed that Match Of The Day pundits Alan Shearer, Alan Hansen and Mark Lawrenson are regularly chauffeured home to the North-east and Merseyside at licence payers’ expense.

Also April last year it was disclosed that three top BBC bosses spent £12,000 on taxis in 12 weeks. This included £4,862 racked up in fares - £75 per day - by its £515,000 then director of Vision, Jana Bennett (pictured).

As an Additional Party to the Tribunal hearing I had to get my skeleton argument in by yesterday so went through some of the arguments put down by the BBC and One Transport.

I have to say that if there can be a category of vexatious requestor there should also be a vexatious public authority – one which refuses to release information even in the face of overwhelming odds.

If there was such a category I feel the Beeb would be in line for the award in this case as some of their arguments are preposterous.

One of them was that if the information I had asked for was released other companies in the same market would know what the winning bid price was (this I consider to be a good thing!). Anyhow the BBC argument goes on that rivals would then bid under that price in a bid to win the contract when it is up for renewal (again I think this is a good thing!).

But in their eagerness to undercut their rivals the BBC fears the new lower bidders risk going bust – meaning the BBC are in danger of not having anybody left in business to provide its taxi service.

It is good to know, I suppose, that the BBC sees itself as an organisation that has to save private businesses from committing commercial suicide – or is it?

Anyhow as you can probably tell I’m pretty confident and if the BBC manage to win this appeal I’ll buy myself the Strictly Come Dancing DVD box set.

You can see the original Decision Notice [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]

“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.

Sheep exemption gets the chop

Can the pictures be any worse than this?

Back in March I wrote about a case involving Devon and Cornwall Police and a grisly and bizarre case of sheep murder on the moors.

An applicant had asked for details of the investigation, including police photos of the dead sheep, but had been refused under S.30 (investigations). I wrote about the case [here] and the original decision notice from the Commissioner can be found [here].

Well, the case was taken to tribunal by the applicant Mr Michael Freebury and the panel have decided that the photographs can be released.

The S.30 case was put in the Tribunal by Louise Fenwick, the Freedom of Information Officer for Devon and Cornwall Police. She told the Tribunal that “she was cognisant that applications for disclosure of sensitive and confidential information relating to criminal investigations may be made by perpetrators and those directly involved with the crimes they seek disclosure on. Therefore as a general principle she would consider disclosure in unsolved crimes to be prejudicial except in very exceptional circumstances.”

The decision notice went on to say: “Ms Fenwick further attested that, in her view, there would be prejudice flowing from disclosure as it would harm any investigation into the crime in particular and subsequent crimes. The disputed information, she claimed, showed the Constabulary’s modus operandi for the investigation of this crime and this would be the same for other crime and future complaints of ‘sheep deaths’.

“She claimed that the manner in which the sheep met their death was not released into the public domain and that release of such information ‘could seriously jeopardise our ability to detect the offenders for this crime and also to detect any future crime’.”

The key point in this Tribunal was the fact that the applicant was able to bring to the case details of a press cutting from the Western Daily Press, that had not been considered by the Information Commissioner when making the original decision.

Some key passages from the article were reprinted in the Tribunal’s finding.

These were:

• “Six sheep were found with their necks broken and their eyes removed on land at Moortown near the edge of Dartmoor. Four of the their bodies were arranged in a regular square shape, another two were lying next to a pattern of stones.
•  “Our understanding is that this place used to be some sort of meeting place for Pagans,” said a spokesman for the Devon and Cornwall police”.
• The dead sheep, worth £600, were still warm when they were found by their owner………….. on Sunday morning.
• There were the four sheep and then 10ft or 15ft away there were another two, which were laid next to three stones which had been arranged in a pattern” he said.
• The stones looked like a kind of gateway, a similar thing that had been found in January”
• In this case, the eyes were completely removed from the sheep, and there were no signs of the messy pecking that could attribute the loss to an attack by birds.
• Police confirmed that the animals had their necks quickly broken and there were no indications of a prolonged struggle or suffering.
• It is thought that at least two people would have to had to have [sic] been involved, given the sheer physical strength needed for the killing and arranging of the sheep.”

The Tribunal considered this article as key to the case as they stated there was nothing in the police pictures of the dead sheep that had not already been noted in the article.

Therefore it concluded that although the S.30 exemption was engaged the public interest argument was an equal balance between disclosure and non-disclosure. Because the public interest test had equal weight on both sides the law states the information should be disclosed.

You can see a copy of the Tribunal’s findings [here] and an application for the release of the photographs [here].

Department of Health loses battle over consultants’ cost letter

Would House be worried at the prospect of frank discussion being halted?

The Information Commissioner has ordered the Department of Health to release a letter from a former Treasury minister concerning the NHS consultant contract – which went £150m over budget.

The Department of Health received a request under the Freedom of Information Act for the business case on the consultants’ contract which it provided to HM Treasury in 2002. The requester also asked for a copy of HM Treasury’s response.

The matter was referred to the Information Commissioner’s Office (ICO) and, during the course of the investigation, the Department of Health did release its business case in full.

However, it has maintained that the Treasury’s response should not be released on the grounds that it is covered by S.35 (formulation and development of government policy).

The Information Commissioner agrees that the exemption applies. Nonetheless, the letter from a Treasury minister, which contains the response to the business case, must be released on public interest grounds.

The Information Commissioner was not persuaded by the view that disclosure would affect the frankness and candour with which ministers would debate policy issues in the future.

The Decision Notice [link] also highlights that this contract is no longer a ‘live’ issue, but that there has been significant public interest in whether the contract has delivered value for money.

On WhatDoTheyKnow I have asked for the information here. [link]

Police chief’s Deepcut letter to be released

Deepcut army barracks

Surrey Police has been ordered to reveal details from a letter sent to it by a Chief Constable from a different force who had made comments about the way Surrey Police had investigated four controversial deaths at Deepcut Army Barracks.

The letter to Surrey’s Chief Constable had been sent by The Chief Constable of Durham Constabulary, who had written to the public authority in the capacity of the Association of Chief Police Officers (ACPO) lead on the Homicide Working Group.

Surrey claimed the letter was exempt from disclosure under S.30 (Investigations), S.36 (Prejudice to Public Affairs) and S.40 (Personal Information).

It would appear from the decision notice that the letter and another one sent by the same officer within two months of the first were critical of the way Surrey Police had carried out its investigation into the death of the four soldiers.

The Information Commissioner ruled that the S.30 exemption did not apply to the information at all.

A key part of this reasoning was that the letter was tangential to the actual inquiry – and NOT part of it. The decision notice said: “However, section 30(1)(a)(i) specifies information held for the purposes of a relevant investigation; it is not sufficient for information to merely relate to an investigation.”

Surrey Police’s arguments were undermined in this section as well by the fact that a report on the deaths had already been published which was entitled ‘Final Report’. The police attempted to argue the investigation was still open as inquests had recorded open verdicts on the deaths and so as no conclusion had been reached the inquiry was still a live affair.

In conclusion the Commissioner said the information has not at any time been held for the purposes of a relevant investigation and that the police had not put forward an explanation of why the exemption applied to the information. Therefore it was ruled S.30 did not apply and the public interest argument was not considered.

On the topic of S.36 the decision notice states the Surrey Chief Constable acted as the qualified person (QP) to claim the disclosure of the letter would inhibit “free and frank” discussions.

Here the Commissioner appears to be critical of the Chief Constable in that the time put in to assessing the case, and the evidence of this procedure are not shown. The Commissioner states: “That this opinion was sought on the same day as the refusal notice was issued calls into question how thorough a process was undertaken by the Chief Constable when forming his opinion. However, in the absence of evidence that the QP did not give an opinion, even if this opinion was cursory and provided at short notice, the Commissioner accepts that an opinion was given by the QP.”

It was accepted by the Commissioner that part of the S.36 exemption applied but it was ruled the public interest was in favour of disclosure.

The decision notice noted there had already been a number of investigations and reports into the deaths at Deepcut. But like the Commissioner’s ruling relating to CCTV pictures of the July 7 bombers the fact there was no public inquiry had been held helped to tip the scales over in favour of disclosure.

The decision notice reads: “First, the Government has stated that no full public inquiry into the Deepcut deaths will be held. Such an inquiry may well have had a significant reductive effect on the public interest in disclosure. In the absence of such an inquiry, the public interest in disclosure remains significant.

“Secondly, rightly or wrongly and despite the various investigations and reviews, the suspicion that the full facts and causes of the Deepcut deaths have not been disclosed remains. As previously noted, disclosure that would resolve this suspicion would be in the public interest.”

The Commissioner also threw out S.40 claims and has told Surrey Police to release the information concerned – albeit that at late date the scope of what was in the letter that directly related to the request was cut down.

The full decision notice can be viewed [here] and I have asked on WhatDoTheyKnow for the information [here].

Note: It is an interesting distinction between information held for the purposes of an inquiry and those held that relate to an inquiry. Does this mean that a post event inquiry into the competence of an investigation should be immune from S.30 protection?

UPDATE: 18.9.09: Surrey Police are not releasing the information and I have been informed intend taking the case to a Tribunal.

Blair 1 Beckham 0

Tony Blair : Just in case you had forgotten what he looked like.

The National Portrait Gallery has won its fight to keep secret its internal negotiations relating to forthcoming commissions of former Prime Minister Tony Blair and Sir Mike Jackson, former head of the armed forces.

The Gallery said it could not release the internal documents as they were subject to  Section 36 exemption (Prejudice the effective conduct of public affairs).

It stated that to release the documents during the sensitive period when the gallery was negotiating with potential artists and the sitter would harm its chances of carrying out its public role.

The Information Commissioner was told that both Tony Blair and Sir Mike Jackson had agreed to have their portraits done for the Gallery and this information was on a public website.

What the Gallery said it could not disclose was the active discussions about how the commission would be carried out. It also stated that it now publicly releases the price it pays for portraits, but after they have been unveiled at the Gallery.

The Gallery said: “To provide any further information would prejudice, or would be likely to prejudice, the effective conduct of public affairs. It explained that making correspondence, emails and documentation publicly available could dissuade the artist or sitter from taking part.”

The Information Commissioner ruled that S.36 was engaged saying: “Disclosure at the time the request was made would have been likely to have dissuaded the artists and sitters or future artists and sitters from taking part in the process.”

The Commissioner went on to conclude that although there were Public Interest arguments in favour of disclosure the test favoured the retention of the exemption.

He said: “The Commissioner accepts that there is some public interest in disclosure but finds that in all the circumstances of the case this is clearly outweighed by the public interest in maintaining the exemption.”

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

A video of a snoozing David Beckham. Money well spent?

Editor’s note: The key point to this question is timing. Had the question been asked after the portrait had been unveiled then the decision may have been different, and if the portrait gets a thumbs down from the public does that increase the weight of the Public Interest test in disclosure? The National Portrait Gallery capitulated over releasing the amount it pays artists a few years ago following my appeal relating to a video of a sleeping David Beckham [link]. I would not say this is a complete victory for the Gallery as it will be interesting to see how the arguments are re-balanced once the active commissioning phase of the process are over.

Sex, booze and FoI

Is this lady concerned about the delicate balance in the public interest argument relating to the disclosure of the advice behind the Government's safe-drinking message?

The Department of Health (DoH) has been ordered to release background information it holds in relation to a public pronouncement that women should avoid all alcohol while pregnant or while trying to conceive.

In a sweeping decision the Information Commissioner’s Office (ICO) stated the release of the contested documents could improve the quality and administration of decisions within Government.

The DoH had said it should not have to release the information as it was subject to S.35 (Formulation of Government Policy) and the balance of the public interest was in favour to maintaining the exemption.

However, in a ruling [Ref: FS50198015] from ICO it was stated that although the exemption was in place the public interest test had been miscalculated and the papers should be disclosed.

The original question to the DoH was made in June 2007 and was for “information concerning how the DoH reached its recent decision to recommend that pregnant women and those trying to conceive should avoid alcohol.”

The DoH had said a decision to release the documents would have the so-called ‘chilling effect’ on civil servants and health professionals who had been involved in the process.

But this argument was overruled by the ICO who said the DoH had failed to give clear evidence of how the ‘chilling effect’ applied to the specific case.

In conclusion the decision notice says: “the Commissioner considers that that civil servants must be expected to provide full and candid advice as part of their professional duties. Therefore he does not accept that they will be easily discouraged from contributing fully during the policy formulation process if the requested information is released.

“Moreover, given the interests that other stakeholders have in shaping policy to meet with their own interests he does not believe that they would readily be less candid or refuse to contribute to future policy in the event of the material being disclosed.

“However, he is also mindful of the proximity of the timing of the request to the completion of the guidance and the content of the disputed information, some of which is particularly free and frank. In view of this he has attributed some significance to the chilling effect argument.”

The Commissioner even went on to state that releasing the information could in fact improve decision making within Government, saying: “Disclosure would promote the accountability and transparency of the DoH for the decisions it has taken in respect of the guidance.

“Placing an obligation on the DoH and officials to provide reasoned explanations for decisions made will improve the quality of decisions and administration.

“In this case the Commissioner considers that there is a significant public interest in releasing the requested information as it would help to explain the reasons behind the re-wording of guidance about alcohol consumption during pregnancy.”

CCTV footage of July 7 bombers to be released

Suicide bombers caught on CCTV

Previously unseen CCTV footage of the July 7 London suicide bombers should be released into the public domain against the wishes of the Metropolitan Police force.

That is the decision of the Information Commissioner who ruled in favour of the Press Association who had appealed the capital’s police force’s decision to try to keep the images secret.

Officials for the Met said the previously unseen images should not be released as they were covered by S.30 (Investigations) and S.38 (Health and Safety).

The Commissioner ruled that S.30 was engaged but that the public interest in disclosure outweighed the maintenance of the exemption. The Met’s argument that S.38 protected the images from disclosure was thrown out by the Commissioner who stated that it did not apply.

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