Trouble by the seaside

Actually I had always quite liked the rubber-faced Education Secretary

I fear I have become the first victim of a phenomenon that may become known as a “reverse Gove”.

I’ve coined the term myself in homage to legendary Sun editor Kelvin MacKenzie, who managed to get the term “reverse ferret” into common parlance.

His phrase was used when his paper would suddenly turn a full 180 degrees and praise the individual or policy it had hitherto been viciously attacking.

Why am I the victim of a “reverse Gove”? It all stems from an allegedly obscene nursery rhyme about the seaside town of Hastings. The ditty was e-mailed by the town’s police chief Mark Ling from his force mobile. When the story emerged I put in a request saying I’d like to see the rhyme.

First Sussex Police turned me down on the basis that the information was exempt under S.40. I appealed saying how could it be personal, seeing as it was at the centre of a disciplinary hearing, and that it was sent on a e-mail system that specifically warns people the content can be released under FoI legislation.

Well I’ve waited a long time for the appeal ruling to come back and this week, not long after the guidance on Gove, I got my response.

Sussex Police said that they had been incorrect to claim that it was exempt under S.40, but they were still not releasing it to me because it was “personal communication”.

The response from Sussex Police says:

It is my assertion that the rhyme was a personal written communication between a Sussex Police employee and a member of the public and therefore not official information covered by the act.  We are therefore not required to consider disclosure.

In making this decision I have considered that whilst you are correct in stating that we have policies informing staff that private communications made on the organisations equipment can be monitored, Sussex Police nonetheless actively allows its staff to use work equipment for their own use.  This includes the sending of email, making personal calls or sending SMS messages.  To support this we have a process to allow staff who have provided phones to pay for personal calls and texts made.

Whilst the rhyme itself may have been deemed as inappropriate to have been sent by a member of Sussex Police, it was not an official communication but was a personal communication outside of the provisions of the FOI act.

As an aside we find ourselves in a difficult position in that a misconduct hearing conducted under the provisions of the Police Regulations has ruled that it was inappropriate for the information to have been ‘published’ by a member of our organisation (albeit privately) and therefore to release it under FOI to the general public would be exacerbating the wrongdoing.

So it would appear that although Gove and his cronies have been rapped for sending official communications on personal systems, I’m being denied what is claimed to be the exact opposite: personal information sent through an official communications system.

Now, as you might suspect, I don’t agree. If this had been a request for his shopping list or what time he was meeting friends then I’d accept the proposition.

But this is significantly different. It is a communication that was allegedly derogatory in nature about the very town that he had the responsibility of policing. If it contained racist language, is that not a relevant cause for concern about the way racist crimes might be investigated?

Sussex Police considered it so seriously that Mr Ling was the subject of a disciplinary hearing. Indeed after the hearing the force’s Assistant Chief Constable said: “The officer failed to uphold the values the public and the force expect of all our people and disciplinary action has been taken against him.”

I’ll be appealing the decision to the ICO and would be grateful for any advice. Here is a link to one of the articles that came out at the time, and here is one after the disciplinary hearing was concluded.

I’m also linking to FoIMan’s excellent blog which has a spicy debate with the inappropriately named Captain Sensible over the Gove e-mail business.

PS. I do have some sympathy for Mr Ling. I spent six depressing months living in Hastings at journalism school (yes I did go to one) learning mainly shorthand. A quick internet search  came up with this description of the town from a band who had to play a gig there.

Hastings. There is very little you can say about Hastings. It is low rent, full of kids and all those kids are drunk with kids of their own. Need I say more.

Even when Foyle was in Hastings the place was a crime hotspot.

It’s an unfair cop

This is not what is meant as gardening leave.

If I were to describe my love for the Freedom of Information Act, it would be the love you might have for a cruel, but intoxicating mistress (not that I have one I hasten to add).

At times everything goes swimmingly and you can’t believe your luck that the prize nincompoop Tony Blair and his pals agreed to bring it in. FoI and I are the best of pals, sharing picnics in summer meadows.

But at other times it seems to conspire against you, sometimes standing in your way, or more normally working you up into a rage with an erratic series of minor inconveniences. At these moments FoI deletes you as a friend from her Facebook page.

I’m going through one of those rough sessions, and it is not the Act itself that is annoying me but the inconsistency in the way it is used. I shall try to explain.

Exhibit 1.

Every year I send off a FoI request to all the police forces asking how many of their officers were suspended on full pay at the start of the year. It is a straightforward question, which when I compile all the results, makes a reasonable story in the papers, normally with “Gardening Leave Bobbies Costing Taxpayers £millions” somewhere in the headline or intro.

But each year one force always kicks up rough, normally because a senior officer is suspended and they don’t want to tell me.

This year the force in question is Dyfed-Powys. Having answered the same question for 2009, 2010, and 2011 they now refuse to answer it in 2012. They claim a S.40 and S.30 exemption.

Clearly I will appeal this case all the way. Last year I ducked out of a similar fight with a police force when I asked how many officers had been off for the entire year with stress. On that occasion I thought the health element in the question would trump my inquiry. In this situation I think I have the public interest on my side.

Exhibit 2.

Hugh Fearnley-Whittingstall - More syllabels than any other chef

If I ever had the misfortune to be burgled what profession do you think the criminals would assume I have? My guess would be some sort of failed chef as we seem to have every celebrity cook book published in the last 15 years. Despite having thousands of recipes from top chefs on our bookshelves and dotted around the kitchen I’m afraid the peak of my culinary powers is still tuna pasta bake (although it is nice).

Trying to mix business with pleasure I occasionally do a trawl of celebrity restaurants by asking for the food inspection reports carried out by local councils on their establishments. This can sometimes yield a good story when rat dropping are found, or the pate has gone off.

My latest request was for details of Hugh Fearnley-Whittingstall’s eateries in the south-west. I asked for the actual reports and all I got was a link to the Scores on the Doors website. It means I will have to appeal it, wasting more time and money. In the computer age we now live in I find it surprising that these reports are not routinely posted on-line, so as well as seeing a restaurants score, we can see the rationale for the decision.

This is what I asked for:

Please could you provide me with a copy of all food safety reports concerning the establishments listed below which were conducted on or after 1.1.09.

River Cottage Axminster Canteen and Deli, Trinity Street, Axminster

River Cottage, Parm Farm, Trinity Hill Road, Axminster, EX13 8TB.

And this is what I got back…..

Dear Mr Davis,

 Thank you for your request for information. Please find the response to your query below.

 This information is made publicly available via the National Food Hygiene Rating Scheme website http://ratings.food.gov.uk/

 This site has been designed to give the public information about whether premises comply with food hygiene requirements without disclosing any detail which could be commercially compromising or sensitive.

 I trust this information is helpful to you.

 If you are not satisfied with the way we have responded to your request, please fill in our online complaint form at www.eastdevon.gov.uk/making_a_complaint or write to the Monitoring Officer, EDDC, Knowle, Sidmouth, EX10 8HL.

 Another appeal I fear.

Come Fly Away With Me (Part II)

Sir High, former Chief Constable of the Police Service of Northern Ireland

The row that centres on a Freedom of Information request around the free flights job perk offered to Sir Hugh Orde looks set to run and run.

To recap, the PSNI were forced to disclose – against Sir Hugh’s wishes – what sort of arrangement was in place to fund flights for his family.

This disclosure [link] reveals Sir Hugh had it written into his contract that members of his family were entitled to free flights paid for by the PSNI.

However, according to the documents released Sir Hugh, who successfully sued a newspaper over freebie flight allegations, agreed at some point during his tenure to repay 50% of the cost.

Of course the disclosure that his family were allowed free flights has sparked the obviously follow-up question of how much those flights had cost, and what exactly was the agreement within his contract of employment.

A member of the Northern Ireland assembly is already asking questions [link]. So I’ve asked the question here [link].

Sir Hugh, is now President of the Association of Chief Police Officers, an organisation which is expected to be admitted into the FoI regime in the not too distant future.

You can see my previous post on the topic here [link]. I can see this ending up at a Tribunal.

An eye for an eye

Remember to tick all the right boxes.

Some of you may have seen that the people in charge of the transplant organ database have managed to get themselves into trouble with the Information Commissioner recently.

As I was involved in a long dispute over the contents of a report into a botched organ transplant, the fact that the organ donor database was shown to be less than 100% didn’t come as much surprise to me.

The organisation in question – NHS Blood and Transplant (NHSBT) – look after the donor register, so that if a person dies it can sanction the use of organs from those that have passed away.

Those of you, who like me, have ever filled in the Donor Registration form, will know that there is a section where you can either hand over 100% of yourself or you can opt for the a la carte option where you say you can have my heart but not my liver (one careful owner).

Well it would appear that in more than 400,000 cases the NHSBT has managed to mangle up its database so that people who thought they were keeping their corneas and such like found they were recorded as being up for grabs.

How this discrepancy in the database was established hasn’t been fully explained although the NHSBT has been told to go back and sort out the mess. You can see the undertaking [here].

Why am I bothered about all this? Well years ago I established from the NHSBT that there were two occasions when a patient had an organ transplanted into their body only to find out that due to a clerical mix up it didn’t match their blood group.

I got hold of the report into one of these incidents and when I wrote it up it was the Page 1 story in the Mail on Sunday.

So I was keen to get my hands on the second one. In this case I made my application to NHS London as they had a copy of the report sent from the Royal Brompton Hospital where the botched procedure had taken place.

Of course S.40 was used to reject my request and my initial appeal and eventually it worked its way through to the Information Commissioner.

Essentially the key point was could the report be kept secret under S.40 (Personal Information). I wanted, and stressed this to the Commissioner, that I didn’t want the patient’s personal details but the reasons for the mistake being made.

Well the Information Commissioner reached his decision [here] and ruled that I was right and S.40 did not apply to the report. But he put in one caveat, in that some of the report, it was considered should still be exempt, which I thought would be the personal bits.

I waited a while after the decision and eventually NHS London e-mailed me with the redacted report [RBHH Redacted SUI report FOI Matthew Davis]. Unfortunately it has undergone severe surgery and is totally meaningless from a journalistic point of view.

Heyho. Why should we worry? Why should we hold to account an organisation where I can see at least ten executives on £100,000-per-year or more yet they cannot sort out its most basic database for successful operation? Is it me?

What is also worrying is the way the Commissioner hoodwinked me into thinking I had won my case only to leave me pondering yet another appeal to the Tribunal.

Come fly away with me - NOT

Seeing as he sues probably better not put a smarta*** caption

The Association of Chief Police Officers (ACPO) is an organisation which has volunteered itself to become a new recruit to FoI whenever the Act spreads its wings to cover more bodies.

At the head of ACPO sits the plain-speaking Chief Constable Sir Hugh Orde, who last year gave delegates at the ACPO Information Compliance Conference his views on Freedom of Information and its ramifications for forces in general.

To those who heard his speech it was probably fair to say that some journalists were not his favourite people.

Little did I know at the time that the marathon-running Sir Hugh has had a somewhat chequered relationship with both the press and the Freedom of Information Act.

Essentially this post is about an Information Commissioner’s decision notice relating to the Police Service of Northern Ireland (PSNI) but to put it in context we need to appreciate some of the back story.

Before Sir Hugh’s lofty promotion to head up ACPO he was the top man at the PSNI and as such pocketed a salary of £180,000 and lived with his wife Lady Kathleen in a luxury £600,000 home.

As such he also claimed £75 for a wasp nest to be removed and £35.53p for a new window latch. Ironically he did pay for his own theft insurance, just in case he was burgled. This is all detailed in a Belfast Telegraph story [Perks of a Police Chief].

But what really got the press in Northern Ireland excited was the fact that Sir Hugh had a secret lover, who fell pregnant with his child, over the water in England. In articles he was quoted as saying his family were “supportive” of his affair.

This led to chit-chat about whether all his taxpayer-funded trips to England had been 100% necessary – or whether he was mixing pleasure with business so-to-speak.

[Why Sir Hugh’s out of Order], [Orde’s marathon sessions with lover] and [Orde steps out with new love] give a flavour of some of the atmosphere that was surrounding him at the time.

Throw into this mix a damaging and false story in Sunday World that Sir Hugh used PSNI money to fly his son to the US to attend St Patrick’s Day celebrations.

Sir Hugh sued for libel and the case was eventually settled with the policeman pocketing more than enough to buy a new pair of running shoes. [Police chief wins libel settlement].

With all that simmering away on the background somebody asked the PSNI if it had ever booked a flight on behalf of his son, even if his son eventually picked up the bill.

PSNI refused to either confirm or deny whether it held this information saying it was a breach of S.40(5) (personal information). Sir Hugh got involved because he himself told his force he did not want them to confirm or deny if it held the information. The applicant appealed the case and the Information Commissioner sided against Sir Hugh.

In the judgement he said: “It is the Commissioner’s view that, given that the request relates to information regarding the PSNI’s potential use of public resources to arrange travel arrangements on behalf of the former Chief Constable’s son, it was not reasonable for the former Chief Constable to expect the PSNI not to confirm or deny whether it held that information. Whilst acknowledging the expectations surrounding the right to a private family life, the Commissioner nevertheless considers that there is a significant expectation amongst the public regarding transparency about the use of public resources. In the Commissioner’s view it would have been reasonable to expect that the Chief Constable and his son would have recognised this fact and expected that the public authority to confirm or deny whether information was held in the circumstances.”

So PSNI were ordered to say if it held any such information and if it did to then go on to consider a further question which probed the details of what these flights might have been.

So when I hear Sir Hugh quoted about ACPO’s entrance into the FoI club saying: “Any organisation that operates as part of a key public service should be accountable and open to public scrutiny.” You can’t help but be a little cynical.

Clearly I may be more cynical than the next man but just how much of a FoI supporter is he when he has been shown to have incorrectly used the Act to try to shield himself and his family from the glare of public scrutiny.

Some people might have a lot of sympathy for him, saying he and his family had more than their fair share of public scrutiny. Others might say he brought it on himself.

You can read the decision notice [here] and I’ve asked to find out what eventually happened with this case [here].

Olympics forced to reveal bonus details

Bonus payments. Nice if you get them.

I know I have been away for too long. I have ignored those of you with empty lives like me who hanker for any snippet of FoI related news or gossip.

Well now I’m back, I promise. This blog will get bigger and better. I was given a coffee-maker for Christmas and if I have to consume a double espresso at midnight to write this blog – then that’s what I’ll do.

Apart from the normal asking questions, getting answers, writing news stories I am becoming all too familiar with the workings of the Information Tribunal.

I’ll start today off with my experience of bringing my own appeal against the Information Commissioner and the Olympic Delivery Authority.

This case has rumbled on for months and a date was eventually set for November 10. On the day in question I arrived in London with all my papers but realised I was lacking one essential item – a remembrance poppy.

The horror of being the only person in the room without a poppy so consumed me that I began approaching strangers in the street asking to buy their one – and was refused. Eventually I got one from the Nationwide Building Society and was ready for legal war.

The key to the case was that I wanted to know how much the executive of the Olympic Delivery Authority (ODA) could have been paid as a maximum bonus, and what performance criteria determine those payments.

I’ve written about this case before [here and here] so I will not go over it in too much detail for those of you who are already familiar with it.

In summary I represented myself, the ODA had Mr Pitt-Payne QC of Panopticon fame and the Information Commissioner had barrister Joanne Clements. They brought along about 10 paper shufflers and I took my mum and dad, who I think are curious as to how their son makes a living.

I crossed swords with Sir Roy McNulty and then the ODA’s Aussie chief executive David Higgins (I should have mentioned the cricket).

Well the upshot of the whole thing is that I think if we continue with the Olympic theme I can award myself a bronze or silver medal. Gold I’m afraid I can’t lay claim to as the Tribunal decision was that the objectives that underpin the bonus payment should remain secret.

However, my appeal was upheld as it was stated that the ODA and the Commissioner should have allowed me to know what the maximum bonus was that the executives could have been paid.

My argument is that bonus payments are pretty meaningless to the general public unless we can know how much of their bonus they were awarded. A chief executive who gets a bonus of £50,000 might be doing a good job, but if he could have got £500,000 if his performance had been better, I’d say he was pretty poor.

Anyhow, expect questions on executives’ bonus payments in the near future. There is a link [here] to the decision of the Tribunal and [here] to a revised question for the ODA.

Next week more of my Tribunal skirmishes with the BBC, the Royal Mail and the Tate Modern over a nude picture of Brooke Shields.

Waste? Yes. Waist? No.

Thanks to the Daily Mirror for this.

When our new Justice Secretary Ken Clarke was interviewed on the television about his appointment in the cabinet he made a joke about how he looked in silk stockings.

Hopefully as somebody who rarely misses a trick I thought I’d wait to see what his inauguration outfit looked like before firing in a question to the Ministry of Justice.

When the answer came back that the clothes he wore for the ceremony cost around £20,000 it was clearly going to be a story – although from my point of view it was a shame that the vast bulk of the cost was incurred by Jack “The Veto” Straw who felt it necessary to spend £18,000 on the gown. Who says politicians can be out of touch?

Anyhow the reason for bringing this story to your attention is that when I sent in my question to the MoJ I couldn’t help myself and thought if I’m paying for Ken Clarke’s breeches then I wonder what size they are.

But the MoJ didn’t fall for that. Although they gave me the cost of his costume the details of his girth will remain subject to a S.40 exemption. [MoJ response]

The MoJ said: “Section 40(2) provides that personal data about third parties is exempt information if one of the conditions set out in section 40(3) is satisfied. Under Section 40(2) together with section 40 (3) (a) (i) of the FOIA disclosure of this information relating to third party would breach the fair processing principle, as there was a legitimate expectation by a third party, that this information would remain confidential.”

And we must remember that disclosure of his breeches would be a breach of the Data Protection Act.

Lockerbie row rumbles on

Libyan leader Colonel Gaddafi never travels without his female bodyguards

Abdelbaset Ali Mohmed Al-Megrahi is the man some people think was responsible for carrying out the bomb attack on Pan Am 103 that crashed into Lockerbie killing a total of 270 people.

His conviction and his subsequent release on compassionate grounds has been the subject of a great deal of controversy.

Some people say he was innocent of the crime and should never have been imprisoned some say the least he deserved was to die in jail.

When he was diagnosed as being terminally ill with prostate cancer a decision was made to allow him to go back to his Libyan homeland for the last few days of his life. This took place in August last year.

The nub of the issue in his release was that he was only expected to live for a further three months and allowing him home was the humane thing to do.

Ten months later he is still alive and MSP George Foulkes wants to see the monthly medical reports on Al-Megrahi’s condition that are logged with East Renfrewshire Council.

Clearly the information is covered by the Data Protection Act and as medical data would also be considered to be ‘sensitive’.

Mr Foulkes said there was a clear public interest in the matter becoming public knowledge but because the data was subject to schedule 3 there were only two possible ways the information could be released.

Firstly if Mr Al-Megrahi gave his explicit consent to the information being released. He was contacted and didn’t give permission.

The second exception was if the information had already been made public by the deliberate actions of the data subject.

The Commissioner made checks to see how much of the medical data about Al-Megrahi he himself had made public and found media reports with generic information that his condition was getting better or worse. But there was no specific information in the reports.

So, the reports will remain secret. However, I’d be interested to know if people think making the same application after Mr Al-Megrahi dies might be successful.

Mr Foulkes is reported as saying: “Foulkes said: “I am very disappointed that the freedom of information laws within Scotland don’t allow the public access to this information.

“It is clear that Megrahi, through his lawyer, has vetoed it. This is matter of not just national interest but also international interest. There are relatives of Americans who died who are concerned about it.”

The decision [link] has caused some controversy in Scotland. In February, Bill Aitken, justice spokesman for the Scottish Conservatives, said: “It is almost bizarre to suggest that the biggest mass murderer in Scottish history should be just like any other client. He is not. The public have a right to know what is going on.”

Would-be Commissioners’ notes to be kept secret….for now

Interview tables should be wide enough to avoid physical confrontation but narrow enough that you can hear each other.

Last year the Information Commissioner issued a Decision Notice which sent ripples of worry through the Human Resources departments in public authorities.

It ruled that a council employee, who had applied for two internal vacancies, had the right to see various details of the other candidates as long as their identities were kept secret.

I wrote about the Decision Notice [link], which was issued against Leicester City Council, in March 2009 (Giv Us a Job).

The Information Commissioner said in that Decision Notice: “Some of the information about applicants’ experience and qualifications could be provided in an anonymised form, without breaching their rights under the Data Protection Act.”

Why am I regurgitating the details of an old Decision Notice I hear you ask?

Well I thought this ruling was interesting and was just waiting for a real life situation to come along that would be a good test.

So what could be more appropriate than the appointment of the Information Commissioner Christopher Graham? What did the interview panel think of the candidates? What sort of qualifications and background did the unsuccessful would-be Commissioners have?

I sent in my question on WhatDoTheyKnow [link] and surprise, surprise the Ministry of Justice refused me claiming the information was covered by S.40 (personal information). I appealed and made it clear I didn’t want any names or anything that would identify any of the applicants.

Quick as a flash – well quick when you consider how long you normally wait for a MoJ appeal – they came back upholding the appeal.

So what do I do now? I have to say the temptation to lodge an appeal with the Information Commissioner will be too great to resist.

If I do surely it means the information has to be sent to the Information Commissioner so he can examine it and then make a ruling on whether the notes do in fact identify anybody. Of course if he were to side with the MoJ it would make the Leicester City Council decision look suspect.

Once again it appears to show one of the unwritten laws of FoI, in that there is one application of the rules for hard-pressed, doing their best lower tier public authorities and a whole different set of standards for those that breath the giddy atmosphere of Government.

Remember. At job interviews and weddings it is important to dress appropriately!

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]