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].

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.

The attack of the black marker pen

Walton Prison in Liverpool

As the furore grows over the amount of black marker pen used to redact MPs expenses a fascinating case with parallels to Parliament’s has been issued by the Information Tribunal.

It concerns more serious items than duck houses and property ‘flipping’ and centres on the case of the highly unfortunate George Kelly, who was wrongly convicted and then hanged for a gruesome double-murder committed more than 50 years ago.

Kelly was hanged for murdering two men at the Cameo Cinema in Liverpool in March 1949.

Cinema boss Leonard Thomas, 44, was counting the night’s takings in an upstairs office when he was shot by a robber along with his friend and assistant 30-year-old John Bernard Catterall. The gunman escaped with the night’s takings of £50.

Kelly, a labourer, who denied any involvement in the murder was convicted on the basis of evidence from a prostitute, a pimp and an ex-con. On February 1950 he was hanged and buried within the grounds of Walton Prison, in Liverpool.

He was eventually posthumously cleared of the crime in 2003 when the Court of Appeal heard that a statement given to detectives by a prosecution witness, claiming another man had confessed to the crime, was not been disclosed to the defence.

But it was when attempts were then made to give Kelly a proper burial on consecrated ground that the Freedom of Information Act and the Data Protection Act impinged upon the case.

In the 50 years between Kelly’s burial and his acquittal the authorities added to his indignities by building a car park over his last resting place.

It would appear that the car park’s existence caused some concern at the then Department of Constitutional Affairs (now the Ministry of Justice) as to precisely where his body was and the costs associated with exhuming his body to allow his surviving family to have a proper burial.

A representative on behalf of the family submitted requests to the Government department asking for notes and documents it held on its discussions about the exhumation, specifically a copy of the advice given to the Minister to issue the exhumation licence in principle for Mr. Kelly; a copy of all communications with the National Offenders Management Service (NOMS) regarding this matter; and the records in relation to communications with a named individual.

Initially the department refused the request claiming it was subject to a S.36 (prejudicial to public affairs) and S.40 (Personal Information). But by the time the case reached the tribunal the issue had been narrowed to just the S.40 exemption as it applied to individual working for the Government.

The Tribunal ruled that the note of a telephone conversation was still covered by the S.40 exemption but that a submission to the minister should be released with a minimum of information redacted.

It said in its decision: “The situation in terms of the Submission dated 28 November 2005 is different. The starting point is that Mr George Kelly had his conviction for a notorious double murder quashed in June 2003.

“At that point he was an innocent man. It is reasonable for the public — and this is not limited to his relatives — to want to understand how the exhumation decision was arrived at in these circumstances and, insofar as it is possible, to understand the reasons for any delay (particularly the 32 months that occurred in this case) in the proper burial accorded to him.

“…the current (final) redaction is, in the Tribunal’s view, still much too restrictive. Proper caution and sensitivity about the issues set out on the Submission is one thing but it is clear to the Tribunal that - in the balancing exercise that is at the core of decisions in this area - the balance tips in favour of disclosure with the most minimal redaction possible and proportionate, and that this disclosure generally is necessary in the public interest.

“In cases such as this HM Prison Service and the Ministry of Justice are dealing with delicate and sensitive historical issues. With the improvements in forensic science techniques it is quite possible in the future that there will be other cases like Mr. Kelly’s where a person has been executed by the State and then exonerated through the appeal system and where relatives wish for a proper burial to take place. The matters set out in the Submission are generally informative about the process and the issues which need to be considered and it is in the public interest that these are disclosed.”

So while the officials who released the Prime Minister’s expenses feel it is necessary to redact his £99 Sky TV subscription it would appear the Tribunal take a somewhat more liberal approach to what can be allowed to be disclosed under the act.

A full copy of the Tribunal decision can be found here.

Details of “Bad Science” BSc to be revealed

A student preparing herself for the Homeopathy practical?

I have found the following article in the Times Higher Education Supplement that I think is of interest. One of the most startling points of the following case - in which the university has been ordered to disclose all the materials associated with its homeopathy course - is that at one point they used the 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. That argument failed. The university also unsuccessfully tried to apply S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) and S.43 (Commercial Interests).

The article said:

Teaching materials used on a BSc degree in homoeopathy must be released to a campaigner against “pseudo-scientific” courses, the Information Commissioner has ruled.

The ruling will force the University of Central Lancashire to submit to requests made under the Freedom of Information Act by David Colquhoun, professor of pharmacology at University College London, and could set a precedent for the sector.

Professor Colquhoun, who is well known for a blog he writes attacking what he sees as phoney science, first submitted requests for the material to Uclan in July 2006.

The university refused to comply on the grounds that the material was commercially confidential and could be reasonably accessed by other means - namely, by enrolling on the course.

In addition, it argued that “the effective conduct of public affairs” would be prejudiced or likely to be prejudiced by releasing the requested information.

Despite Uclan’s protests, Richard Thomas, the Information Commissioner, ruled that none of the exemptions that organisations can rely upon to withhold information applied in this case.

He said that the university could not be considered a commercial organisation for FoI purposes, and must now release the course materials, bar any case notes that refer to patients.

The course under scrutiny has closed, but Professor Colquhoun told Times Higher Education that this did not mean the information was no longer of interest or detract from the precedent set by the commissioner’s ruling.

“The course that prompted the request is no longer the point,” he said. “What matters is that all the usual exemptions claimed by universities have been ruled invalid.

“In future, they will not be able to refuse requests for teaching materials … people will be able to get hold of whole courses if they want to.”

A spokesman for Uclan said it would appeal the decision.

Professor Colquhoun’s blog on the case can be found here and the decision notice is here.