Don’t take this the wrong way, but………

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I’ll keep you posted.

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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.

Return appeal to sender

Nothing special about the postal service

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

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

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

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

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

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

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

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

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

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

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

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

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

Taxi for the Beeb

BBC bigwig Jana Bennett could have saved the Corporation thousands if she'd mastered how to use the tardis.

Imagine you are an employee at the BBC and you need a taxi for yourself or a guest who is going to appear on your show.

The procedure would appear to be that you contact a company called One Transport. They arrange the taxi for you, they pay the taxi for you and then send the BBC a bill not just for the taxi ride but also for them arranging it.

More than a year ago I asked the BBC how much they spent on providing taxis for staff and guests in the 08/09 financial year – the answer came back at around £14million.

But to my surprise the BBC wouldn’t say how much of this went into the pockets of One Transport, so I appealed.

The BBC which had claimed the information was exempt under S.43(2), refused my appeal and I have ended up at the Information Commissioner’s door yet again.

He, I thought unsurprisingly, sided with me saying there was no evidence shown of how prejudice to the BBC or One Transport could be likely to occur by releasing the figure.

But then the BBC appealed and now I find myself looking down the barrels of another Tribunal with the Information Commissioner and myself on one side of the argument and the BBC and One Transport on the other.

A hearing has been pencilled in for February 17 and 18. What will be interesting from my point of view as a journalist is the BBC will not only have to show that S.43(2) (Commercial Interests) is engaged but that the public interest is in favour of non-disclosure.

Particularly as the BBC’s taxi bill caused controversy recently after it was revealed that Match Of The Day pundits Alan Shearer, Alan Hansen and Mark Lawrenson are regularly chauffeured home to the North-east and Merseyside at licence payers’ expense.

Also April last year it was disclosed that three top BBC bosses spent £12,000 on taxis in 12 weeks. This included £4,862 racked up in fares - £75 per day - by its £515,000 then director of Vision, Jana Bennett (pictured).

As an Additional Party to the Tribunal hearing I had to get my skeleton argument in by yesterday so went through some of the arguments put down by the BBC and One Transport.

I have to say that if there can be a category of vexatious requestor there should also be a vexatious public authority – one which refuses to release information even in the face of overwhelming odds.

If there was such a category I feel the Beeb would be in line for the award in this case as some of their arguments are preposterous.

One of them was that if the information I had asked for was released other companies in the same market would know what the winning bid price was (this I consider to be a good thing!). Anyhow the BBC argument goes on that rivals would then bid under that price in a bid to win the contract when it is up for renewal (again I think this is a good thing!).

But in their eagerness to undercut their rivals the BBC fears the new lower bidders risk going bust – meaning the BBC are in danger of not having anybody left in business to provide its taxi service.

It is good to know, I suppose, that the BBC sees itself as an organisation that has to save private businesses from committing commercial suicide – or is it?

Anyhow as you can probably tell I’m pretty confident and if the BBC manage to win this appeal I’ll buy myself the Strictly Come Dancing DVD box set.

You can see the original Decision Notice [here].

Postman Pat…hetic

Pat waves goodbye to common sense

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

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

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

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

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

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

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

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

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

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

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

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

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

Boris Johnson coy over his EastEnders’ fee

When Boris Johnson appeared in EastEnders I realised the clash of two public authorities was too good an opportunity to miss.

The BBC, forever hiding behind its “artistic and journalistic derogation” has never given out any info on its most famous soap.

Despite the theatrical nature of the new London mayor “BoJo” cannot avail himself of the same get out clause, so I was hoping to use City Hall as my entrance ticket into the murky world of EastEnders.

I basically asked for everything City Hall held on Boris’ appearance on the show and I received (15 days late) a very complete record of e-mails that bounced around between the two organisations.

But what I didn’t get were two e-mails that related to how much the fabulously wealthy Eton-educated Boris got paid for his brief appearance.

The e-mails from the Beeb say that everybody who appears on the show has to be paid and Boris’ team seem happy with that and agree the cash should be donated to charity.

At that point one would think there was nothing controversial about the matter – but City Hall refuse to release the charity or the amount claiming S.43 (commercial interests).

City Hall says in its response: “The two e-mails covered by the request constitute commercially sensitive information.

“The detail and naming of the charity involved in way of receiving the appearance fee for the Mayor’s appearance in EastEnders would be likely to be detrimental to the charity itself as information within the e-mails is not factually correct.”

It goes on: “In this case disclosure of this information would be likely to have a detrimental impact on the reputation of the charity in receipt of funds apportioned from the Mayors appearance fee from appearing on EastEnders due to the inaccuracy of some of the facts contained within the e-mails.

“The degree of prejudice to be suffered is likely to be far-reaching to a third party given in particular it is a charity and less likely to have the resource available to cope with the adverse publicity, therefore having a great impact on their commercial interests.”

What is amazing about this decision is the fact that disclosure appears to have been blocked based on the fact there are errors in the e-mails – which is no excuse for non-disclosure. My understanding is they should be released with adequate commentary explaining what in them is wrong.

Also I wonder what charity he decided his fee should go to? (Any suggestions please mail them in). But why be so coy about where the money was directed to? And surely there is a public interest in knowing where he wanted the fee to go to, considering his cameo in EastEnders only came about by virtue of his public office.

You won’t be surprised to know that I’m in the process of appealing it – and I also hope they refuse again and make an issue out of it.

For those that missed Boris lock horns with Peggy at the bar of the Queen Vic I’ve added the clip from YouTube.

UPDATE: I managed to unearth a story from the e-mails that were sent through.

UPDATE: 4.2.10: My appeal to the GLA was successful. On review they accepted that S.43 was not applicable as here we were talking about a charity and not a commercial organisation. Boris’ fee from the Beeb was £362 and he passed it straight on to Friends of Classics, a charity devoted to keeping Latin and Greek ‘flourishing in our schools’.

High Court saves the BBC

This post has upset me so much that it has taken me a few days to bring myself to write it.

The BBC’s derogation from the Freedom of Information Act which was first weaked by the Commissioner and then put in limbo for the last year now appears to have been settled. And its not good news for those of us who were lobbying for greater transparency at the Beeb.

The judge has effectively stiffened the derogation by saying if the information requested has any link to “arts or journalism” then it falls outside the Act. The previous position that had been adopted, but was was taken to appeal by the BBC was that it depended on what the information “prodominant” purpose had been.

Sadly I have already been contacted by the Information Commissioner’s Office and have been forced to throw in the towel in relation to three of my appeals - how much the BBC spent on accommodation at the Olympics; how much was spent on accommodation at the Open Golf; how much it spent buying the rights to Formula 1. All of those along with dozens of others I suspect have now been cleared off the Commissioner’s desk.

However, I refused to budge on two others. One relates to the BBC’s pension fund and the other relating to a taxi contract the Beeb has with a company was refused on the basis of S.43 (commercial interests) so it would be rich if the Beeb now said it was covered by its derogation.

Two points on the whole sorry saga. Firstly the judge, with all due respect as they say, has clearly misjudged the matter. The derogation is now so wide that it virtually covers everything the broadcaster does - can that have been what the legislators intended?

Secondly as we all hunker down for the huge public service cuts that will follow the forthcoming election is it right that the BBC - one of the deepest pits of taxpayers’ money - should be free from public scrutiny? Especially when the BBC are such enthusiastic users of the Act. I don’t see the storm over BBC costs disappearing any time soon and with a predicted change in Government soon perhaps the tide will swing back against the BBC.

For your amusment, and to illustrate the point that the BBC’s use of its own resources will continue to be  a thorn in its side I have added a clip of Paxman v Boris. You may have seen it but as Boris gets more and more exasperated at Paxman questioning him about his drunken university exploits he responds by asking Paxman how much he gets paid.

I’m optimistic. I don’t think this will be the last post I write about BBC costs. For those of you who want to read the judegment I’ve linked to it [here].

S.43 exemption hits the buffers

A silverlink train

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

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

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

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

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

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

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

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

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

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

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

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

Nice work if you can get it

Well worth the money.....

When the employees at the Information Commissioner’s office next look up from their in-trays to wonder why the Ministry of Justice so openly underfunds its illegitimate offspring in Cheshire they might want to ponder on modern art.

Because while they gather round the coffee machine looking for small change the people who hold the purse strings in London have just splashed out £118,000 on a modern art sculpture for its HQ.

This work which the artist describes as a “monument to uncertainty and infinite possibility” was just one of four pieces specifically commissioned for the MoJ.

We know how much it cost because the Department of Culture, Media and Sport capitulated in their attempts to keep the prices it pays for artwork secret and now publishes them in an annual report [link] – something it didn’t do before the Freedom of Information Act came in and something they tried to oppose, claiming it should be covered by the S.43 (Commercial Interests) exemption.

I know this because it was I who took the case to the Information Tribunal in relation to an art installation at the National Maritime Museum. It was one of the first Tribunal cases in the country and the cowardly Commissioner was against me claiming the information was covered by S.43.

Fortunately the Tribunal panel could see the immaturity of the Commissioner’s argument and sided with me saying S.43 was not even engaged so they didn’t bother to go on to consider the public interest argument.

The artist whose piece of work was at the centre of that argument in front of the Tribunal was Conrad Shawcross, who is later emerged got paid around £20,000 for his collection of wooden hoops called Continuum, which were described as a “wooden spring like structure…moving through itself in perpetuity”.

Getting back to the MoJ, guess who is the artist behind the curious heap of wood in its coffee room…. yes you’ve guessed it, Conrad Shawcross.

Conrad with his "cheap by comparison" collection of hoops at the National Maritime Museum

What better proof could you have that S.43 didn’t harm the commercial interests of Mr Shawcross. In 2004 he flogs a selection of wood to a publicly-funded museum for £20,000 and then three years later he sells another collection of wooden pieces for £118,000. I would say it is quite clear Mr Shawcross didn’t need the protection of S.43 and the Tribunal were right.

You can find the Information Commissioner’s decision on the case [here] and the Tribunal’s ruling on it [here] . If you’d like to know more about Mr Shawcross click [here] for his art or [here] for his wiki entry.

University fund raising ruled NOT a “commercial activity”

Would you let this man give you £2.5m?

Although my instincts as a journalist mean I am reluctant to side with public authorities when they refuse information requests, a recent decision in relation to Oxford University has made me look at things from the other side of the fence.

The Information Commissioner’s decision notice makes what I consider an incredible assault upon the protection of S.43 (Commercial Interests).

The case relates to a £2.5million donation given to Oxford University by Hong Kong entrepreneur Dr Stanley Ho to set up a new University Lecturership in Chinese History.

A request was made for information from the University’s Donations Acceptance Review Committee (DARC) held on the suitability of the donation from a man otherwise known as “The King of Gambling” and who according to Wikipedia is Bruce Lee’s cousin. [link]

At first the University just gave the applicant standard material on how it considers donations and did not release the specific minutes of the meetings it had when it was considering Dr Ho’s proposed gift.

Eventually the University said the information in question – its internal discussions about the suitability of Dr Ho as a benefactor – were exempt from disclosure as they were subject to S.43 and S.40 (Personal Information).

In relation to S.43 the University claimed to release information would be a deterrent to other potential donors and so had the likelihood of prejudicing its commercial interests.

But, and some might think this surprising, the Information Commissioner said the S.43 exemption was not even relevant to the issue. The decision notice stated that fund raising for the University was NOT a commercial activity and therefore the information could not be protected by the exemption.

Josie Ho, the benefactor's actress daughter

The Commissioner said: “In the Commissioner’s view a commercial interest relates to a person’s ability to participate competitively in a commercial activity, i.e. the purchase and sale of goods and services. The University is, broadly speaking, not a profit making organisation, the provision of higher education as a public service (albeit for a fee) is its underlying motive. Moreover, the services are paid for out of the public purse and supplemented by private donors. In providing higher education, the University’s survival is not dependant on its ability to generate its own funding and therefore the need to be commercially competitive is not a paramount consideration in the sense one would expect of a privately funded organisation.

“The release of the information in this case may or may not affect the University’s ability to raise future funds, but this is not a commercial activity albeit that it may be a financial interest. In view of this the Commissioner does not consider the applicable interests to fall within section 43 and therefore he has concluded that the exemption was incorrectly relied upon by the University to refuse access to the information requested. In light of this conclusion it is not necessary to further consider the nature of the prejudice in this case or the likelihood of it occurring.”

Bruce Lee. Stanley Ho's cousin?

The S.40 arguments were also turned down by the Commissioner. He stated that much of the information was already in the public domain [link] and that Dr Ho could not have had an expectation of privacy when the academic post funded by his donation was to be named after him.

Just like the recent case I blogged about in relation to Dumfries and Galloway Police [What became of the drink-drive policemen...] the Commissioner had to rule if the disclosure of the information was for a “legitimate interest”, was it “necessary” and would it not cause “prejudice” to the rights of the data subject.

Like the policemen case the Information Commissioner ruled that S.40 did not provide protection. Some of the key factors were the panel were assessing Dr Ho mainly on the basis on material in front of it that was already in the public domain.

In summary the Commissioner said: “The Commissioner recognises that the withheld information itself is not in the public domain and that disclosure would reveal exactly what the University considered when vetting the donation. In the Commissioner’s view revealing which aspects of publicly available material the University opted to use would not result in unwarranted prejudice to the donor’s rights and freedoms. Nor does he think that revealing the material that was internally generated by the University rather than obtained from public sources would have this effect. In particular he does not consider such information to be particularly free and frank or to reveal anything that would be detrimental to the donor.”

You can see the full decision notice here [link] and I have also asked for the material the University has been asked to disclose on WhatDoTheyKnow . However, I wouldn’t hold your breath as I imagine there are sure to be a few people prepared to challenge the Commissioner’s somewhat strict interpretation of what is commercial activity.

UPDATE: 16.9.09. Not unexpectedly the University refuse to release the information and state they are lodging an appeal at the Tribunal.