Don’t take this the wrong way, but………

It is important, say the Royal Mail, that their message should not be misconstrued

There has been some chatter in FoI circles on the internet recently about the Royal Mail and their rather imaginative use of the S.43(2) commercial interests exemption.

Here I should declare an interest in that the Royal Mail and me have history.

They obviously feel that as a commercial organisation battling every day to deliver post in competition against other companies that FoI is something of an inconvenience.

But as my mum would say “There’s no point moaning about it”, however, Royal Mail continues to sit in the corner sulking hoping that FoI will go away. I believe the current expression is “Man Up”, and it is time either the chiefs at the Royal Mail, or those in charge of FoI take my mum’s advice and just get on with it.

I’ve written a host of stories on the Royal Mail since FoI came in, almost all of them bad, and almost all of them prised out of the organisation grudgingly.

My catalogue of Royal Mail stories includes how many letters they shred every year because they don’t deliver them, how much they raise from auctioning off items they fail to deliver, how much compensation they pay to customers and how many postmen are fired for stealing.

So recently when trawling through some Parliamentary documents on the web I found a letter from the Royal Mail detailing how many criminal investigations it sets in train every year.

I thought I’d ask them how many had been started in previous years to see if there was a trend and perhaps it might make another story.

Well, imagine how unsurprised I was to get a reply from the Royal Mail saying the information was exempt from disclosure under S.43(2) of the Act. Their letter to me is here.Davis - DTUP-8NWESG The best bit was their rationale for the decision which was:

“ We believe the requested information, if disclosed, would be likely to be misconstrued and taken out of context resulting in unfair damage to the reputation of our employees and public perception of Royal Mail.”

Misconstrued! When has that ever been an exemption? I’m sure there are hundreds of people out there who would like to have denied me information on the basis that I might ‘misconstrue’ it, but it’s not allowed.

What about Freedom of Expression? Should the Royal Mail be in charge of some despotic Government’s Department of Information? What about all the people they employ in their press office? What are they being paid for?

Well I’ve already fired off my appeal and I’ve enclosed a copy of the letter that the Royal Mail disclosed to Parliament, which you can see below, which reveals the very information that has been denied me.

I’ll keep you posted.

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Return appeal to sender

Nothing special about the postal service

I don’t imagine that many Freedom of Information officers will have much sympathy for me, but I’d like to explain why the Information Commissioner is not currently my favourite organisation.

What has happened is that at the 11^th hour the Commissioner has mysteriously done a 180 degree turn and decided to reverse his decision which had been originally to uphold my appeal.

The first I knew of the Commissioner chickening out of a contest was when the Tribunal called me saying that as the original applicant I had ten days to carry on the case myself.

It all started ages ago when I was asked by a newspaper to make a request about the Royal Mail’s recorded delivery and special delivery services.

Specifically I wanted to know the number of complaints and the total amount of compensation relating to the two premium services.

Of course the Royal Mail refused my request claiming the information was protected under S.43 (Commercial Interests). I eventually appealed the case to the Information Commissioner who ordered disclosure. [Decision Notice].

The Royal Mail appealed the case and it was making its way to the Tribunal and I was not particularly anxious as I felt the S.43 claim was very weak.

Well, as I said I was rung up out of the blue by the Tribunal stating that new information had been provided by the Royal Mail just a few days before the hearing.

On sight of this new material the Information Commissioner threw in the towel and so I was asked if I wanted to take the case over at the last moment.

The Tribunal sent me – ironically by special delivery – two huge lever-arch folders of information that had been prepared for the Tribunal.

I’ve searched through this and try as I might I can’t see the document which in my opinion would make the Information Commissioner throw the towel in.

Anyhow as I already have two tribunals planned for this year relating to the BBC’s taxi spend and the Tate Modern’s penchant for exhibiting child porn I didn’t think I could stretch to a third – especially as I was thrown into it at the last moment.

I wrote to the Tribunal expressing my disappointment with the matter and the fact that when I have such a case I’m the only person there who isn’t getting paid. But seeing as all the Freedom of Information responses I get are free I don’t suppose there will be a lot of sympathy for me out there.

Postman Pat…hetic

Pat waves goodbye to common sense

One of the things I like doing with FoI is following in the footsteps of other requesters. I’m not ashamed of pinching somebody else’s good idea.

To that end I’ll read the Decision Notices and Tribunal judgements. When there has been an order to disclose documents and I think they might be interesting I’ll ask for a copy of everything that was disclosed to the original applicant. On occasions it has yielded some great information without me having to be the one who has to prepare all the appeal documents.

However, the Royal Mail are taking a stubbornly unique approach to the Freedom of Information Act in a case where I want data it has already been ordered to disclose.

Way back the Royal Mail was ordered by the Information Commissioner to reveal how much it had paid to management consultants in 04/05, 05/06 and 06/07. The decision notice [here] ruled the information was not covered by S.43 (Commercial Interests).

The case initially went to the Tribunal but appears to have been settled before the case was ruled on by the panel. However, what is not in dispute is that following the intervention of the Commissioner the management consultancy fees were disclosed.

So I thought I’d ask for the figures that had been disclosed and bring the issue right up to date by asking for the 07/08 and 08/09 figures.

Imagine my surprise when the Royal Mail refused to release the information! They claim that it would be too expensive and breaches the £450 limit to amass the data for the two most recent years – despite being able to do it for the three older years. It also claims that the information about those three years, where the information was disclosed to the applicant, cannot now be released to me (is it because I’m a journalist?) because it is exempt under S.43.

This is what they say: “Royal Mail Group holds the total amount spent on strategic management consultants in 2004/5, 2005/6, and 2006/7. Information for these years is held because it has previously been collated by Royal Mail Group.

“As you are aware, this information was previously the subject of an ICO Decision Notice - FS50178376. The information held therefore covers the strategic management consultants as defined in that case.

“Although this information was released to the applicant in case reference FS50178376, we still believe that disclosure of the information at this time would be likely to prejudice the commercial interests of Royal Mail Group.”

There was me thinking one of the main limbs of the Freedom of Information Act was that disclosure to one person was disclosure to the world.

Anyhow, you may not be surprised to learn that my appeal to the Information Commissioner is winging its way through the post – recorded delivery.

The refusal of my internal appeal can be seen here [Appeal refusal]. If anybody has any thoughts on this case I’d be pleased to hear them. Is there something I’m missing in my understanding here, or do Royal Mail think they can make the rules up as they go along?

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.

S.43 exemption hits the buffers

A silverlink train

Another attempt by a public body to keep information secret with the use of the S.43 (Commercial Interests) exemption has failed.

The Department for Transport’s (DfT) efforts to withhold the information relating to how much it paid a rail company when its workforce went on strike was rejected by the Information Commissioner.

It was ruled that S.43 was not engaged and so the Commissioner did not even go on to consider the public interest arguments in the case.

The case centred on an industrial dispute by workers on the Silverlink rail franchise in 2007 which ran between London Euston and Northampton.

Officials from the DfT confirmed to the Commissioner that under a section of its agreement with Silverlink it was able to “reimburse or ameliorate net losses of the Franchise Operator arising from industrial action”.

However, it refused to divulge how much this compensation was and the arguments it put up in defence of the use of S.43 remain somewhat of a mystery.

The DfT said that to disclose it arguments for the support of S.43 would be a breach of the exemption in itself. The decision notice said: “The DfT has provided the Commissioner with submissions to support its use of the exemption, but has stated that it believes that these submissions cannot be put into the public domain.”

So the rationale behind the DfT’s use of the exemption is in a confidential annex to the decision notice that we cannot see.

However, the Commissioner gave the arguments – secret or not – short shrift and said the exemption did not apply. Because the exemption didn’t apply he also found the DfT guilty of a breach of procedure in that it should have explained the reasoning behind its application of S.43 to the applicant.

The DfT has now been ordered to provide the applicant with information relating to did the DfT provide funding to Silverlink as compensation when the industrial action took place and if any changes were made with the incoming franchisee to compensate it for any losses caused by industrial action.

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

NOTE: For S.43 to be applicable the prejudice to an organisation has to be likely and substantial. Even then the public interest can weigh in favour of disclosure. It means that it practice it is very difficult to shield information using this exemption. The Ministry of Justice lost a similar case [Working on the chain gang], and the Royal Mail has withdrawn its appeal to the Information Tribunal over its attempt to keep secret how much it spends on management consultants.

Busy autumn ahead for Information Tribunal

A look at the cases in the pipeline for the Information Tribunal shows it is going to be a busy autumn for the court this year.

Hopefully the rulings should put some markers in the sand about what is and is not allowed to be exempted from disclosure under the Act.

The full list of cases has just been updated and can be found [here], but I’ve highlighted a few that I think are potentially the most interesting.

Royal Mail

What is the Post Office's management consultancy bill?

Royal Mail – 10^th/11^th Sept – Here the Information Commissioner ruled the amount spent on management consultants by the Post Office over the last five years should be disclosed despite protestations that the statistics should be covered by S.43 (Commercial Interests). Interesting as I can’t think many FoI officers would agree with the Royal Mail’s position on this one. The Commissioner decision was that the information was not covered by S.43 and didn’t even go on to examine the public interest test IF the exemption had been in play. [FS 50178376]

Department for Business, Enterprise and Regulatory Reform (BERR)

Protestors at the EDO factory

 

 

Department for Business, Enterprise and Regulatory Reform (BERR) – 22^nd/23^rd Sept – This could be a lively hearing in that it relates to the export licences granted to a company called EDO MBM Technology Ltd. This Brighton-based Aerospace Engineering Company, has been the subject of a campaign by local pressure groups who alleged that it had supplied Israel with military aircraft components. There have been a number of demonstrations and protests at the firm’s headquarters. This appeal relates to an attempt by an applicant to get hold of the export licences granted to EDO. The Commissioner agreed with BERR’s ruling on the matter that the information was covered by S.41 (Information Provided in Confidence). [FS 50180838]

Department for Culture, Media and Sport

Department for Culture, Media and Sport – 9^th/10^th Nov – This relates to internal Government memos on its casino policy, which changed a number of times. Here the Information Commissioner rejected arguments that documents should not be disclosed because the were covered by S.35 (Formulation of Government Policy) and S.43 (Commercial Interests). [FS 50160256]

Civil Aviation Authority (CAA)

The CAA has responsibility for ensuring air safety in the UK

Civil Aviation Authority (CAA) – 22^nd/23^rd October – I have written about this case before [Flight of Fancy shot down by ICO] where the CAA is refusing to issue safety reports on a cargo airline. It has claimed a S.31 (law enforcement) exemption but the Information Commissioner kicked that argument into touch saying the CAA had not shown how releasing such documents would prejudice its affairs. [FS 50168527]

Higher Education Funding Council for England (HEFCE)

The student accommodation didn't quite look like the brochure pictures

Higher Education Funding Council for England (HEFCE) – 16^th November – In this case the HEFCE doesn’t want to disclose the database it holds on the make-up and quality of university buildings. It claims the information is covered by a S.41 (Information Provided in Confidence) exemption, but the Commissioner ruled against the authority. Again I have blogged on this case in the past [Uni database to be opened to public scrutiny] and noted the Commissioner ruled the information was not covered by the exemption as there would be no ‘detriment’ to the universities who supplied it. [FS 50188864]

University of Central Lancashire

A student preparing herself for the Homeopathy practical?

University of Central Lancashire – 3^rd/4^th and 5^th of November – Pack your healing crystals and make sure you sleep on lay lines as this one is all about the ‘science’ of homeopathy. This case was brought by real scientist David Colquhoun, professor of pharmacology at University College London, who wanted all the papers relating to its homeopathy course. The university refused claiming the info was covered by S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) S.43 (Commercial Interests) and S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. The Information Commissioner again rejected the University’s arguments and ordered the documents to be disclosed. The university has refused to back down and will now take its arguments to the druids’ court, sorry I mean the Tribunal. This is an interesting case in that it is at the focus of very public battles between so-called scientists and those that have been dubbed ‘bad-scientists’ in that they hold pseudo scientific beliefs. These arguments are now being hammered out in the libel courts and here at the Information Tribunal, which many would argue is not the proper use of these institutions. Again I have written on this topic before at [Details of “Bad Science” BSc to be revealed]. The Information Commissioner’s decision on the case can be found here [FS 50140374]

ICO starts monitoring of Publication Schemes

The Information Commissioner has revealed details of those authorities who have received a ticking off for their Publication Schemes.

In January the Commissioner issued new guidance for authorities in relation to their Publication Schemes and said there would be a system put in place to ensure everybody was coming up to standard.

Following a Freedom of Information request to the Information Commissioner’s Office (ICO) we now have a few more details of what that actually means. (link)

The first section that the ICO intends to monitor is central Government. The surveillance which started on April 20 will last for around four weeks and then a report will be prepared around mid-June.

After that it would appear that the ICO will move on to different sectors - I’m afraid I didn’t ask for a list to see who was top and bottom of the monitoring list. But from that timescale I presume that if you are a sector at the bottom it could well be well in 2010 before the ICO starts clicking on your website.

However, the ICO did reveal that a number of public authorities have been written to since January to get a telling off about their publication scheme. These organisations are Staffordshire Primary Care Trust, Royal Mail, Lancashire Police (please see comment), South Wales Police, Northern Ireland Legal Services Commission and the City and County of Swansea.

The ICO also said that the issue of improving the Publication Scheme had been raised verbally with Leeds City Council and the Metropolitan Police.

So remember the ICO is watching.