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.

Appellant hit with £4,300 costs order

Prepare your case!

A lawyer who took a case to the Information Tribunal and lost has now been landed with a £4,353 costs bill.

David Bowden, a qualified solicitor, who trades under the name Lobby and Law, brought an appeal to the Information Tribunal earlier this year.

His case was attempting to overturn the Information Commissioner’s decision to allow the Cabinet Office to rely on S.35 (Formulation of Government Policy) to block the release of minutes relating to specific meetings.

Mr Bowden, who said he was acting on behalf of an anonymous third party, failed to convince the Tribunal of the strength of his case and they upheld the Commissioner’s decision.

However, the Tribunal issued some stinging criticism of the way the appeal had been conducted and have now agreed to award costs against Mr Bowden under Rule 29 of the Tribunal’s Enforcement (Appeals) Rules 2005.

The Tribunal said that Mr Bowden had “chosen to prepare an inordinately large amount of irrelevant documentation”.

It was also noted that “much of what the appellant prepared and submitted to the Tribunal for the hearing consisted of an assortment of documentation ranging from newspaper articles to undated and unidentified publications of various sorts”.

The Tribunal considered the appeal could have been dealt with in a day but because of the disorganised way Mr Bowden conducted his case a second day was needed, which of course brought with it a rise in costs for all parties.

The Tribunal added: “……Mr Bowden was incapable of responding properly or at all throughout the course of the appeal and beyond, to requests by the Tribunal as well as the Additional Party to organise his case in some form of more concise order so as to economise the time and effort spent by all parties in conducting the appeal.”

Here is a copy of the Tribunal’s decision in this case relating to costs [link] and the ruling in the case case sparked the costs issse [link].

This is the third time the Information Tribunal has made an order of costs following a hearing. The other two cases saw Northumbria Police having to pay £1,000 and Nottingham City Council being made to pay £8,000 in costs.

Summer time blues for CPS

Keir Starmer, the £200,000 boss of the CPS. Desk calendars for his staff perhaps? A new holiday rota maybe?

A recent judgement issued by the Information Tribunal has done little to dispel the fears of those who think the Crown Prosecution Service (CPS) doesn’t do the greatest job in the world.

The CPS was ordered to disclose information about a change in policy relating to a defence for reasonable chastisement of children.

It decided it would appeal the decision to the Tribunal – but it lodged the appeal 37 days outside the 28 day time frame for making such an application, and then claimed it was late because a lot of staff had been away over the summer holiday.

The CPS then had to put forward “special circumstances” why its appeal to Tribunal should be heard out of time. It said: “The DN arrived just before the summer vacation and because the decision as to whether to appeal involved consultation with a number of other public authorities it took some time to decide.”

The Information Commissioner opposed the application and the Tribunal ruled against the CPS saying: “The Tribunal has considered these arguments and is not convinced that in the circumstances of this case, where the appeal was submitted so long out of time, that this ground is a special circumstance under rule 5(2).

“Even if it is the Tribunal is not of the opinion that it would be just and right to allow the appeal to be accepted out of time on this ground alone. The Tribunal is particularly concerned that if it was to allow this application from a public authority whom, because of its functions, is more than aware of the need to comply with court and tribunal rules of procedure, then it would make it very difficult to refuse other applications made on a similar ground.”

But the story has a happy ending for the CPS as the Tribunal has allowed the appeal as it accepted the organisation’s second “special circumstance”.

Having lost the initial case in a battle over S.35 (Formulation of Government Policy) the CPS now wants to run its appeal to the Tribunal on the basis that it should have considered S.42 (legal privilege) and this argument was allowed.

So the moral of the story is: If the CPS, an organisation staffed with a disproportionate number of lawyers, can get away with saying we missed the most important legal point in the initial case and now we are out of time with our appeal – then anybody else should be able to run that argument as well.

Perhaps a dose of “reasonable chastisement” is needed in the offices of the CPS.

You can see the original Decision Notice [here] and the Tribunal’s ruling on accepting the appeal out of time [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]

Flipping crazy

lunchtime

Who would have thought that the Freedom of Information Act would need to be used to find out how best to cook a burger? But that’s what has happened.

The Information Commissioner has ordered the Food Standards Agency (FSA) to disclose the details of a slide used in a presentation by a US fast food chain (I wonder who this might be?) as to how it cooks its burgers.

All the information centres on an investigation by the Advisory Committee on the Microbiological Safety of Food (ACMSF) into the issue of cooking burgers safely.

In June 2004 the FSA sought the advice of the ACMSF on the UK’s existing guidance on the safe cooking time and temperature for burgers. This followed a suggestion from the US fast food company to the FSA that this guidance recommended cooking conditions that were more stringent than was necessary. The company believed that this led to overcooking and deterioration in the quality of some of its products.

In September 2004 the ACMSF set up an ad hoc group to review the advice issued by the Chief Medical Officer. Amongst the evidence it considered was a presentation from the US fast food company on the controls it used to ensure the safety of burgers from raw materials through to consumption. It provided data on the effectiveness of the regime in the US which differed from that in the UK.

When the applicant asked for the material considered by the ACMSF and the material submitted to it by the US fast food chain some of it was refused. The FSA claimed the information was exempt from disclosure because it was subject to S.22 (Intended for future publication), S.35(Formulation of Government Policy), S.40 (Personal Information) and S.41 (Information Provided in Confidence).

During the course of the three-year saga, the initial request was made in April 2006, much of the disputed information was passed to the applicant. However, the contents of one slide used during a presentation were still disputed. According to the FSA the slide was subject to S.41 (Information Provided in Confidence) and S.43 (Commercial Interests).

The Information Commissioner could not disclose what was in this slide but he ruled that neither exemption was engaged. On S.43 argument he said the risk of prejudice could not be said to be a “real and significant risk to the company”. Similarly he dismissed the S.41 argument on the same basis that the information was not subject to the exemption as the company would not suffer “detriment” if it were released.

The Commissioner also covered public interest arguments for both exemptions – although not needed as he ruled neither were engaged – and ruled that had the exemptions been engaged then the public interest would still have been in favour of releasing the information.

 He also criticised the FSA for the way it released information in a piecemeal manner and that it should have “taken more care in the initial application of exemptions”. He also said the use of S.22 (Intended for Future Publication) was used incorrectly. Although the documents were disclosed to the applicant before they were published they were not released to a wider audience for two years. He said: “I am concerned that the public authority should make sure that before applying the exemption in future that it ascertains that there is a definite intention to publish the relevant information within a realistic and reasonably short timeframe from the point at which the request has been made.”

A full copy of the decision notice can be found by clicking [here].

I have asked the FSA for the name of the US fast food chain and a copy of the slide. You can see the request, and hopefully the response, by clicking [here].

12th August, 2009: I have been informed that the US fast food chain in question is McDonalds (fancy that!) and the organisation requesting the information was an e-Coli sufferers’ support group called HUSH. You can find out more here [link] .

17th August, 2009: The FSA got back to me on WhatDoTheyKnow [link] to confirm the fast food chain is McDonalds but that they are considering the Information Commissioner’s decision and if they don’t appeal the case they will let me have the slide - but I’ll have to wait until they make their mind up.

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]

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].

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.”

Government’s London 2012 Olympic report to stay secret

No gold medals for disclosure

A document prepared for Government ministers about the potential pros and cons or winning an Olympic bid looks set to stay secret until at least after the London 2012 Olympics.

The report to ministers was considered before the Government officially threw its hat into the Olympic rings to bid for the 2012 games.

Although its contents will remain secret the Information Commissioner’s decision notice [FS50182402] suggests it offers a frank appraisal of the possible downsides of winning the race to host an Olympic Games.

The request for the report was turned down initially by the Department for Culture Media and Sport (DCMS) who relied upon S.35 (formulation and development of government policy). The decision was appealed to the Information Commissioner, where Deputy Commissioner Graham Smith upheld the refusal saying the exemption was engaged and the public interest test was not in favour of disclosure.

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