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  • Working on the chain gang…..

    Posted on August 18th, 2009 admin 1 comment
    Paul enjoys a life in the sunshine rather than the 'hell' of the jail's Information Governance team.

    Paul enjoys a life in the sunshine rather than the 'hell' of the jail's Information Governance team.

    The Ministry of Justice has suffered an embarrassing failure to uphold the S.43 (Commercial Interests) exemption in a dispute over contracts for prison labour.

    Although chain gangs may be a thing of the past prisoners in England do have jobs for commercial organisations managed through the jails where they are held.

    An attempt by a Freedom of Information requester to find out who these contracts were with and how much they were worth was rebuffed by the Ministry of Justice (MoJ) on the basis that the data was subject to S.43.

    The Information Commissioner was eventually called in to rule on two parallel appeals on the subject, one relating to ten prisons and the other relating to eight jails.

    In both cases the Commissioner ruled that S.43 should not have applied to the information and so didn’t even have to go on to consider the public interest test.

    He also made critical comments about the amount of time the MoJ took to deal with the internal reviews in both cases – more than 190 working days in one of the cases and more than 250 working days in the other.

    On the topic of S.43 the public authority stated in its internal review notice that: “… the likely consequences of the identification of companies holding contracts with prisons will include loss of business, lay-offs of workers, becoming the subjects of campaigns against the use of prison labour and adverse publicity, all of which we feel would prejudice commercial interests, as has happened in other cases.”

    It also claimed that in one case the end customers did not know it was prisoners who were the labour force behind the product and if they found out they might cancel the contract.

    A whole host of arguments were put forward by the MoJ in an attempt to justify the S.43 exemption. It claimed the prisons could lose money if contracts were cancelled, the contractors would be put at a disadvantage to competitors, and contractors might have to lay off non-prison staff.

    However, the Information Commissioner ruled against all these arguments and said the exemption was not even engaged, especially as the information requested was not particularly specific in terms of the actual contract, such as the number of prisoners employed etc.

    Although the MoJ did not rely on S.38 (health and safety) the Information Commissioner went on to consider it, in relation to non-prisoner employees of a company using jail labour.

    The Commissioner said: “Whilst the Commissioner understands that a contractor has a duty of care to its staff and notes its concerns, he can find no evidence to support its stance that its staff may be put at risk by disclosure of the information requested in this case in particular, or by public knowledge of its involvement with prison labour in general. Although there is information available on-line to suggest that a well known retailer was targeted by parties who were against the association they claimed it had with prison workers, there is nothing to suggest that any harm or damage was done to its staff. There were a number of demonstrations, along with picketing and leafleting, and although it appears that some persons were ‘moved on’ by the police the Commissioner can find nothing to suggest that there was any further action than this.”

    A group called Campaign Against Prison Slavery says inmates get paid around 30p an hour and have compiled a list of companies with contracts with jails in England [here] and Scotland [here] .

    I have asked the Ministry of Justice to provide me with the details that should now be released and you can see the question [here] on WhatDoTheyKnow.

    And the two decision notices can be seen [here] (relating to eight prisons) and [here] (relating to ten jails) .

    This request was sent in by journalist Phil Chamberlain (see the comment) who has blogged about this topic [here] where you will find a link to articles on the Guardian as well as his own website devoted to investigating prison labour [link] .

    Ministry of Defence: The Information Commissioner has issued a Practice Recommendation [link] critical of the time taken by the MoD to complete an internal review. The MoD seems to have particularly annoyed the Commissioner in that it has taken 40 working days as its target for dealing with internal appeals when this figure is in fact an exceptional allowance – the normal figure being 20 days. However, even using the 40 day limit statistics from the MoD showed 60% of appeals were not dealt with by the expanded timeframe, and in one case a requester had to wait 190 working days for an internal review to be resolved.

  • Flipping crazy

    Posted on August 11th, 2009 admin No comments
    lunchtime

    lunchtime

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Busy autumn ahead for Information Tribunal

    Posted on July 28th, 2009 admin No comments

    A look at the cases in the pipeline for the Information Tribunal shows it is going to be a busy autumn for the court this year.

    Hopefully the rulings should put some markers in the sand about what is and is not allowed to be exempted from disclosure under the Act.

    The full list of cases has just been updated and can be found [here], but I’ve highlighted a few that I think are potentially the most interesting.

     

     

    Royal Mail

    What is the Post Office's management consultancy bill?

    What is the Post Office's management consultancy bill?

    Royal Mail – 10th/11th Sept – Here the Information Commissioner ruled the amount spent on management consultants by the Post Office over the last five years should be disclosed despite protestations that the statistics should be covered by S.43 (Commercial Interests). Interesting as I can’t think many FoI officers would agree with the Royal Mail’s position on this one. The Commissioner decision was that the information was not covered by S.43 and didn’t even go on to examine the public interest test IF the exemption had been in play. [FS 50178376]

     

     

    Department for Business, Enterprise and Regulatory Reform (BERR)

     

     

     

    Protestors at the EDO factory

    Protestors at the EDO factory

     

     

    Department for Business, Enterprise and Regulatory Reform (BERR) – 22nd/23rd Sept – This could be a lively hearing in that it relates to the export licences granted to a company called EDO MBM Technology Ltd. This Brighton-based Aerospace Engineering Company, has been the subject of a campaign by local pressure groups who alleged that it had supplied Israel with military aircraft components. There have been a number of demonstrations and protests at the firm’s headquarters. This appeal relates to an attempt by an applicant to get hold of the export licences granted to EDO. The Commissioner agreed with BERR’s ruling on the matter that the information was covered by S.41 (Information Provided in Confidence). [FS 50180838]

     

     

    Department for Culture, Media and Sport

    Was casino policy decided on the roll of a dice?

    Department for Culture, Media and Sport – 9th/10th Nov – This relates to internal Government memos on its casino policy, which changed a number of times. Here the Information Commissioner rejected arguments that documents should not be disclosed because the were covered by S.35 (Formulation of Government Policy) and S.43 (Commercial Interests). [FS 50160256]

     

     

    Civil Aviation Authority (CAA)

    The CAA has responsibility for ensuring air safety in the UK

    The CAA has responsibility for ensuring air safety in the UK

    Civil Aviation Authority (CAA) – 22nd/23rd October – I have written about this case before [Flight of Fancy shot down by ICO] where the CAA is refusing to issue safety reports on a cargo airline. It has claimed a S.31 (law enforcement) exemption but the Information Commissioner kicked that argument into touch saying the CAA had not shown how releasing such documents would prejudice its affairs. [FS 50168527]

     

     

    Higher Education Funding Council for England (HEFCE)

    The student accommodation didn't quite look like the brochure pictures

    The student accommodation didn't quite look like the brochure pictures

    Higher Education Funding Council for England (HEFCE) – 16th November – In this case the HEFCE doesn’t want to disclose the database it holds on the make-up and quality of university buildings. It claims the information is covered by a S.41 (Information Provided in Confidence) exemption, but the Commissioner ruled against the authority. Again I have blogged on this case in the past [Uni database to be opened to public scrutiny] and noted the Commissioner ruled the information was not covered by the exemption as there would be no ‘detriment’ to the universities who supplied it. [FS 50188864]

     

     

    University of Central Lancashire

    A student preparing herself for the Homeopathy practical?

    A student preparing herself for the Homeopathy practical?

    University of Central Lancashire – 3rd/4th and 5th of November – Pack your healing crystals and make sure you sleep on lay lines as this one is all about the ‘science’ of homeopathy. This case was brought by real scientist David Colquhoun, professor of pharmacology at University College London, who wanted all the papers relating to its homeopathy course. The university refused claiming the info was covered by S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) S.43 (Commercial Interests) and S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. The Information Commissioner again rejected the University’s arguments and ordered the documents to be disclosed. The university has refused to back down and will now take its arguments to the druids’ court, sorry I mean the Tribunal. This is an interesting case in that it is at the focus of very public battles between so-called scientists and those that have been dubbed ‘bad-scientists’ in that they hold pseudo scientific beliefs. These arguments are now being hammered out in the libel courts and here at the Information Tribunal, which many would argue is not the proper use of these institutions. Again I have written on this topic before at [Details of “Bad Science” BSc to be revealed]. The Information Commissioner’s decision on the case can be found here [FS 50140374]

  • Making a meal of a meta-request

    Posted on July 13th, 2009 admin 1 comment
    Will it be worth the wait to see what's inside?

    Will it be worth the wait to see what's inside?

    The saga of the so-called meta-request goes on….and on…. and on.

    In January 2007 I asked a question of the Home Office about the way it had been treating my requests as I had evidence that it dealt with mine differently from the general public. This is a breach of its responsibilities under the Freedom of Information Act in that it should be “applicant blind” when it deals with requests.

    My request was refused, I appealed and the appeal was thrown out as the information was deemed to be covered by Section 36 (Prejudice to the effect conduct of public affairs).

    I took the case to the Information Commissioner who ruled in my favour and then the Home Office appealed against that decision, linked up with the Ministry of Justice, and took the case to the Information Tribunal.

    At the Tribunal the Government tried to argue that meta-requests - the process where somebody asks questions about the way their question has been handled - were in some way an abuse of process.

    This argument was rejected by the Tribunal and I sat at home waiting for the 1,250page bundle of documents to arrive in the post.

    But that wasn’t the end of the matter and the Government appealed the decision to the High Court where a hearing took place earlier this year.

    That decision has now been announced and again it was ruled that meta-requests are NOT an abuse of process and should be dealt with like any other Freedom of Information application.

    However, there is one big BUT. The High Court has allowed the Home Office the opportunity to go through the material to see if any other exemptions apply to it. For good measure it is now claimed that although S.36 does not apply to it the Tribunal will have to rule if section 31 (law enforcement), section 35 (formulation of government policy), section 40 (personal information), section 42 (legal professional privilege), and section 43 (commercial interests).

    So to summarise, two and a half years after I asked the question the Home Office has now been forced to do what it should have done all along - look at the question and see if it could and should answer it. Because of it’s ineptitude it has wasted hundreds of hours and thousands of pounds, essentially because it thought it shouldn’t have to answer my question.

    Here is a link to a question I have asked on WhatDoTheyKnow asking for the figures of legal costs associated with the case both for the Information Commissioner [link] and the Home Office [link].

    Here are copies of the decision in this case by the [ICO], the [Tribunal] and the [High Court].

  • Details of “Bad Science” BSc to be revealed

    Posted on May 1st, 2009 admin No comments
    A student preparing herself for the Homeopathy practical?

    A student preparing herself for the Homeopathy practical?

    I have found the following article in the Times Higher Education Supplement that I think is of interest. One of the most startling points of the following case - in which the university has been ordered to disclose all the materials associated with its homeopathy course - is that at one point they used the S.21 exemption (available by another means) on the basis that the applicant could pay to enroll on the course and after shelling out almost £10,000 over three years he could view the course documents. That argument failed. The university also unsuccessfully tried to apply S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) and S.43 (Commercial Interests).

    The article said:

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

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

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

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

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

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

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

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

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

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

    A spokesman for Uclan said it would appeal the decision.

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