How Low Can You Go? Part II.

That crowbar looks far too shiny

The topic of when simple statistical data becomes personal data has always been a topic that has caused a great deal of head scratching.

If I ask how many people in East Sussex are obese nobody would consider that to be personal data and subject to a S.40 exemption. However, if you were to ask how many adult males living at my address were obese and the answer was to be one – you’d have violated my privacy, breached the Data Protection Act and ridden rough shod across S.40. Anyhow, just for the record, I’d like to state that I’m just slightly overweight!

But nobody has really said how and when that numerical data becomes personal data. The topic has come before the Tribunal and the Commissioner before and the issue has still not really been resolved (I’ve put a series of links at the end to judgements which have focused on this point).

However, the latest judgement from the offices of the Information Commissioner [Ref: FS50161581] relates to the Greater Manchester Police (GMP). It received a request wanting to know the number of burglaries that took place in Honeysuckle Close and Tunshill Road.

To my mind the key point in this question was the number of houses in each street. In Tunshill Road there are 83 but in Honeysuckle Close there are just 13.

GMP refused to release the data saying it was subject to S.31 (law enforcement) as well as S.40 (personal information).

The S.31 argument was quickly dispensed with by the Commissioner despite some interesting arguments by GMP which included the fact that disclosure of the information might lead to more burglaries as criminals would expect the stolen property to be replaced with new goods courtesy of the insurance companies.

But the S.31 plea from GMP was rejected by the Commissioner who said “this would not present a real and significant impact on the ability of the police to prevent crime and to apprehend offenders”.

On to S.40 and the Commissioner admitted the number of properties and the number of burglaries were small in number but added “I am not persuaded that, taken together, they would allow for the identification of any individual.”

The Commissioner touches on the subject of “crime maps”, a new politically-driven idea that will allow people to look up on the internet to see what sort of crimes have been committed and where. However, he says that just because a police force picks a certain parameters for the reporting of each crime type the Commissioner, when considering individual Freedom of Information requests, does not have to be bound by the police approach.

As it would appear that 13 is considered a number not too low to allow a S.40 exemption to be applied. The key question is when does the number become too low (see my earlier post on this topic ‘How Low Can You Go?’) and would the level change if we were talking about more sensitive personal detail.

To test drive this ruling I’m asking on whatdotheyknow how many burglaries have taken place each year in Connaught Square, Westminster, to see if the arrival of the Blairs after he left No.10 and the associated police presence had any effect on the number of house raids [link].

Other judgements:

Common Service Agency v Scottish Information Commissioner [2008] UKHL 47, link

Department of Health v Information Commissioner & Pro-Life Alliance [EA/2008/0074], link

Sussex Police v Information Commissioner [EA/2009/0013], link

Border Agency gets in a pickle over Dutch MP’s visit

Mr Wilders - Your name is on the list and you are NOT coming in.

The UK Border Agency has had its knuckles rapped by the Information Commissioner after it took almost a year to respond to a Freedom of Information question.

A request was made on the whatdotheyknow website about information relating to the decision to ban Dutch MP Geert Wilders from entering the UK.

Mr Wilders had caused controversy in that he was responsible for producing a film called Fitna, branded by many as anti-muslim.

Because of these views the British Government decided he should not be allowed into the country. Eventually he was allowed in and showed his film at the House of Lords.

More background on Mr Wilders and his film can be found [here].

The request for information was made to the UK Border Agency on February 12, 2009 and they acknowledged the request five days later. In March, July, August and September there was some communication between the parties but the question was still not answered.

Eventually in on September 30 the applicant got in touch with the Commissioner’s office and on October 30 the Commissioner communicated with the UK Borders Agency, who said “unfortunately a response to this case has not yet been issued”.

The UK Border Agency said it was in the process of answering but was trying to assess a possible S.36 (Prejudice to the effective conduct of public affairs) exemption to some of the information.

Finally the Information Commissioner counted out the UK Border Agency when it still had not not replied by December.

A Decision Notice was issued dated January 7, 2010 [link] and finally the UK Border Agency did reply, although it decided after all that time to exempt most of the information under S.21 (Available by another means), S.27 (International Relations), S.36 (Prejudice to effective conduct of public affairs) and S.40 (Personal Information).

You can see the whole history of the request posted on whatdotheyknow [link] and for those of you interested there is a news clipping on Mr Wilders below.

Olympic Tribunal: Latest

For those of you keeping tabs on my progression to the Tribunal I have an update for you.

Firstly the Information Commissioner has now put up a copy of his Decision Notice [link].

And the Commissioner has also replied to my request to the Tribunal for an appeal [ICO Response].

For those of you unfamiliar with the case I had asked for details of the bonus payments made to the chief executive and the board of directors of the Olympic Development Authority (ODA). My request was rejected by the Commissioner on the basis that it was subject to the S.40 exemption.

Tribunal rules on Council row over pay

As a journalist what I really like about the Freedom of Information Act is that behind every Decision Notice there is a story – from MPs expenses and the legal advice on the war in Iraq, right down to neighbourhood disputes.

A recent ruling from the Information Tribunal is a case in point, which although some might say is very much a “local” issue, it throws up legal points that may well have bearing in much more high profile cases.

So this decision takes us to the former pit village of Ferryhill, in County Durham. Population 10,000 and a Town Council that although Labour Party dominated has been infiltrated in recent years by members from a new party called FAIR (Ferryhill Association for Independent Representation).

One of FAIR’s gripes was the fact that the local council tax had risen sharply in recent years and much of this it claimed was down to sharp wage rises behind the doors of the Town Hall.

The Council’s chief officer Jamie Corrigan was singled out by FAIR as the main culprit and a Freedom of Information request was sent to the council to ask how much he was paid.

In Ferryhill things were about to get personal as the person sending in the request was FAIR councillor Brian Gibson and the person on the receiving end was – yes you’ve guessed it Jamie Corrigan.

A long story can be cut down to say that Mr Corrigan’s salary band has been revealed as being between 54k to 62k. But that’s not enough for FAIR. They want to know to know exactly what he is being paid and how much of that is made up with the overtime, it is claimed he amasses by spending extra time in the office dealing with Freedom of Information requests from Mr Gibson.

So when the matter came before the Information Tribunal they had to deal with what is becoming something of an old chestnut – would it be a breach of S.40 (Personal Information) to reveal Mr Corrigan’s exact salary and overtime payments.

The simple answer is that the Tribunal declared that it would be a breach of S.40. in that Mr Corrigan’s rights under the Data Protection Act would be infringed.

I spoke to Mr Gibson today and he said: “I’m disappointed with the judgement. I could appeal but I don’t think I will.

“I’m a councillor. How can I set budgets when I don’t even know what the council staff are earning? This is public funds, why the secrecy?”

I have to say that I have some sympathy with Mr Gibson. If elected on a platform to establish if the Town Hall was feathering its own nest it can certainly be claimed that there is a legitimate public interest.

Where the claim falls down of course is would the disclosure cause “unwarranted harm” to the individual, and is that outweighed by the public interest. Sadly for Mr Gibson the Tribunal decided it wasn’t. Is this bad news for my hopes of squeezing the details of the Olympic Delivery Authorities £250,000 bonus criteria? I don’t think so really.

For those of you who would like to read the Tribunal’s decision the link is [here].

Awaiting a Tribunal with Godric

Godric Smith. Paid £225,000 last year. Should we know how good a job he is doing as Communications boss at the ODA?

I’ve been in business as DataNews for more than a year now and have had a number of cases filter through the office of the Information Commissioner.

Some I’ve won and a couple I have lost, but up until Christmas there was not a case that I was prepared to go to the barricades for and pursue through to the Information Tribunal.

Well, I have now lodged an appeal with the new Tribunal office in relation to a complaint I made about the way my FoI request was dealt with by the Olympic Delivery Authority (ODA).

The ODA is the organisation tasked with spending £9billion of public money building the site for the 2012 Olympics in Stratford, north-east London.

I should say at this point that I am NOT anti-sport or anti-Olympics and have no grudge against the ODA, indeed I grew up a javelin’s throw away from the site of the 2012 games.

What gets my goat in this particular case is the privacy that is afforded to some of the country’s highest paid public servants.

David Higgins, the Aussie Chief Executive of the ODA, has cost the organisation more than £1million in salary and bonus payments in just the last two years.

His basic salary in 07/08 was £373k plus a tasty £205k bonus and in 08/09 it was £384k + £209k bonus.

What I wanted to know was the criteria for paying Mr Higgins these huge bonus payments – especially given their huge size and the fact that the ODA cannot be accurately assessed as being a success or not until the opening ceremony of the Games.

My request asked for the criteria on which his bonus payment was assessed, whether he qualified for 100% of his potential bonus payment and if he didn’t qualify for the whole lot which areas he was deemed as coming up short in. My argument is that this is no longer personal information, as it might well be for an employee further down the food chain.

In the rarefied atmosphere of the ODA boardroom we the public deserve and have the right to know what he is being paid a bonus for and more importantly what he is NOT being paid a bonus for.

The Commissioner looked at the arguments and ruled against me saying that the information I wanted was still subject to a S.40 (Personal Information) exemption as to supply me with the figures would be a breach of the Data Protection Act.

I also asked for similar data in relation to Godric Smith, a former resident of Prime Minister Blair’s press office and now the £192,000 + £33 bonus Head of Communications for the ODA. My request for his bonus criteria were also refused on the same basis, although Mr Smith wrote the Commissioner a letter stating how the release of his bonus details would “cause unwarranted interference”.

So, I have now embarked upon a battle to see if I can overturn the Commissioner’s decision and the ODA secrecy wishes at the Tribunal.

I think this is a key point because if these sort of details cannot be extracted from people in positions like Higgins and Smith then we might as well wave the white flag and go home.

For some reason the Commissioner has not (I can’t find it) put the decision notice on the website so at the moment I cannot provide people with a link to the document. When it does go up there I’ll post it up. It is Ref: FS50259954

Also I’ll be putting in a request to the Commissioner asking for a copy of Godric Smith’s letter. See the link [here].

As I will probably be up against somebody from 11KBW being paid thousands to keep the information secret I’d be grateful for any help or advice.

NOTE: Apologies for not updating the site much over Christmas/New Year. Pressure of work. But I hope to get back into the swing of things again now.

Higgins on cue for jackpot finish to London 2012

David Higgins hopes not to have trouble with the builders

The subject of top officials’ pay is a constant one in the land of Freedom of Information – and the related topic of bonus payments for those individuals is even more complex.

As the law stands at the moment a request for the salary details of a chief executive of a public authority or a chief constable will illicit the details. The total paid out as a bonus payment will also normally be revealed.

But what at the moment is guarded with some ferocity is the requirements that the top person has achieved to warrant the payment of such a bonus payment. This will normally be protected by a S.40 (Personal information) exemption.

My personal view is if somebody at the head of a large publicly accountable organisation is going to accept bonus payments then we the public should be made aware of what those targets are.

Why? Well the objectives that a pay review body set a chief executive are strategic targets for the organisation as a whole and indicate to the paying public what are the priorities for that organisation might be – and perhaps more interestingly what are not deemed to be priorities.

So I imagine that a chief constable’s bonus could be linked to the prevalence of knife crime and a hospital boss’s bonus to the number of MRSA infections.

And because these are strategic targets that the organisation as a whole has to work to achieve I believe we should know which of the bonus elements a chief executive achieves, and which ones he or she falls short of reaching.

In an attempt to push this point through I had been looking for the head of an organisation where a test case would help to establish this principle.

Step forward David Higgins the chief executive of the Olympic Delivery Authority (ODA). His salary in 2007-08 was £373,000 to which was added a bonus payment of £205,000. Cynics among you might wonder how he can justify a £205,000 bonus when the games are still four years away. You might argue – and I have – that really he shouldn’t get a bonus until the final curtain comes down on London 2012 and we can then assess if he has done a good job.

Well my appeal into Mr Higgins’ bonus payment and the targets that lay behind it is now sitting on the desk of the Information Commissioner and I’m hopeful they might issue a decision notice on the matter before the games actually start.

But what has interested me now is the latest set of accounts for the ODA. In it Mr Higgins salary has edged up to £384,000 yet his bonus payment has dropped £100,000 to £105,000. This severe cut to his bonus is accompanied by an asterix* which further down in the document gives an explanation.

It says: “For the financial year 2008-09, the Remuneration Committee determined that a performance related payment of £209,566 was the appropriate amount to recognise the Chief Executive’s performance. However the Chief Executive voluntarily deferred half of that amount until no later than December 2012, subject to the satisfactory delivery of the current programme scope within the maximum available budget agreed by the Minister for the Olympic and Paralympic Games.”

So, it would appear that although the ODA turned down my internal review for greater transparency of Mr Higgins’ bonus payments – some of my argument has been accepted, in that it’s ludicrous to award huge bonus payments to the person during the course of an ongoing project where the success can really only be assessed after it is finished.

How low can you go?

At some point you can get no lower.....

Freedom of Information officers often come up against the problem of when and if statistical data can be seen on specific occasions to be a breach of S.40 (Personal Information).

Most commonly this problem has been seen in tables of data – often about medical conditions – where the public authority will put a dash “-“ in any cell where the value is less than five.

The Department of Health (DoH) regularly uses this technique when providing tables showing the number of women who have had multiple abortions.

You will see from this Abortion data table that there are a handful of under-18 girls who are on their third abortion or more – yet the DoH refuses to give us the exact figure.

In Scotland there was a long-running dispute over whether low cell values in a table of the prevalence of childhood cancer, could lead to those children being identified.

I have to say that I still have difficulty with the concept and certainly do not accept that any cell value under 5 or ten automatically has to be anonymised. In the abortion table example how would knowing that six women aged under 18 had their third abortion that year led to their identity being exposed?

The key to these questions, in my opinion, is the total pool from which the information is drawn. So in the abortion data case your pool of identifiable candidates is all the women aged under 18 in the whole country.

But this vexed problem of low cell values has taken a different turn in the case of Beresford Lane in the Sussex village of Plumpton Green.

A company that wants to put together data for prospective house buyers asked the local police force for data about anti-social behaviour in the lane for a six month period.

Sussex Police refused to either confirm or deny (NCND) it held any such information as it claimed that to state it held such information could lead to the identity of either the victim or the culprit. This use of S.40 was rejected by the Commissioner and has now also been thrown out by the Tribunal.

But the key element in this case was in essence the “total pool”/“cell value” which in this case was the number of people who lived in the lane  against the number of anti-social behaviour complaints in that lane.

The Tribunal came to the following conclusion: “The Appellant says that if it confirms or denies that it holds the requested information, that could lead to the identification of either those who have made complaints about ASB, or those about whom such complaints have been made. Clearly, if it does lead to such identification, that would amount to disclosure of personal data. The question is - would it lead to such identification?

“The facts before us are notably brief. We have been told that Beresford Lane, Plumpton Green, BN8, is a rural road with approximately 17 residential dwellings. Presumably, many, if not most of the 17 dwellings, will have multiple occupiers which means there are likely to be many more than 17 people living in the area covered by the request. The request covers a period of 6 months. We have no other facts of any significance. On these simple facts, we have great difficulty in seeing how, if the Appellant confirms or denies that it holds information on the number of ASB complaints reported, and the descriptions of any such ASB complained of, in that period and for that location, that would enable a living individual to be identified as having either made a complaint or having been the subject of such a complaint, or indeed to be identified in any other way. The Appellant has simply not demonstrated how that connection could be made.

“The position might be quite different on different facts. For example, if there was a known incident concerning one or more particular dwellings or individuals and if the time period covered by the request was relatively specific to that incident, a confirmation or denial could well lead to an individual being identified. That, however, is not the situation in the present case.”

So it would appear that in this case the Tribunal thinks that to disclose information about a cohort – sadly we don’t have an exactly figure but the number of people who live in 17 houses (34?) – will not breach S.40. But as the Tribunal has said different circumstances and different figures might lead to a different ruling.

The key question is when does that group number get so low that S.40 would be breached. And it appears that the Tribunal has neatly ducked out of answering that question.

The Tribunal ruling can be seen here. Tribunal decision.

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.

If…you can find a court record while others….

Is a person's record of conviction open to the public for inspection?

I have always been an advocate of a central, publicly accessible database of the criminal convictions of everybody in the country.

Mainly this comes from my experiences as a court reporter, being sent by a local paper to cover the magistrates court. Often I would find myself in one courtroom covering what was perceived to be a “good” case while other defendants were being dealt with in the other courts.

What you ended up with was the people who were unlucky enough to have me in the courtroom with them found themselves plastered all over the paper, while those in the other courtrooms were able to slink back into anonymity.

Why should it be that the experience of the local court reporter, and the financial and editorial priorities of the local paper determine which criminals have their convictions known to the public, and which manage to keep them secret?

This quirk in the criminal justice system has been exposed in an Information Tribunal ruling where John Carleton was attempting to find out from Worcester Magistrates’ Court the fate of a relative who had been before the JPs.

His attempts to obtain the record from the court were unsuccessful, and even after paying £25 to the court, the information was still not made available to him.

A Freedom of Information Act request was lodged with the Ministry of Justice (MoJ), which has responsibility for Her Majesty’s Court Service (HMCS), but it was turned down on the basis that it could not confirm or deny it held the information.

The Information Commissioner then took almost two years to uphold the MoJ’s decision although it was noted that it could have assisted the applicant more in directing him towards another piece of legislation that may have allowed him access to the court register.

When the Tribunal considered the verdict in upheld the view of the Commissioner, but it did however point out the strange situation the law has got itself in over the matter of court records.

It said: “The Tribunal notes that there are apparently anomalies created by the current Freedom of Information and Data Protection legislation in this area and which are mentioned briefly below.

“If the Appellant, as a member of the public, had attended the court on the relevant date there is no reason to suppose that he would not have been able to hear all the information that he was requesting because it would have been part of the normal, public court proceedings.

“If the Appellant had found out that the press or the media had covered the case and was able to get a copy of the newspaper report or media broadcast then – although the personal data in question would have been processed by becoming part of those reports – the Appellant would have had legitimate access to the information and the personal data he was seeking.

“If the local newspaper or media outlet put the court report within a webpage on the internet or as a “podcast” to be downloaded by the Appellant – whether there was a “search” facility on the site allowing specific names or topics to be highlighted and retrieved or not - and then viewed, printed out, played or stored, then all of that is legitimate processing of personal data within the current statutory legislation.”

The Tribunal has asked for this situation to be communicated back to the MoJ – but don’t expect any swift changes in the law. As for the applicant Mr Carleton, presumably he still doesn’t know what happened to his relative on that fateful day at Worcester Magistrates’ Court. He says that he wants to information so that he could help out his relative financially. The ruling doesn’t explain why he couldn’t just ask his relative.

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

What became of the drink-drive policemen..Part II

UPDATE: For those that remember entry What became of the drink drive policemen…. well Dumfries and Galloway Police have coughed up their response.
The two officers, who were convicted of drink-driving, were indeed made to resign from the force.
Here is a copy of the police force’s response to the applicant after the decision of the Scottish Information Commissioner.

Letter from Dumfries and Galloway Police Force