Help on S.44 wanted….

Schoolgirls getting their 15 minutes of fame

Today I’m asking for help as I seem to have come up against something of an FoI brick wall.

Some of you may know that one of my recent pet projects concerns a show called #Educating Essex which was broadcast on Channel 4.

My problem with the show is at a time when print journalists (and I include myself in that dwindling tribe) are pilloried every day for our lack of ethics, sensitivity and soul those people producing fly-on-the-wall documentaries are, on occasions, getting away with much more.

The school is questions, Passmores in Harlow, Essex, have received an FoI request from me and an appeal has now gone to the Information Commissioner.

But I also complained about the exploitative nature of the show to Ofcom, who responded to my concerns to say that I need not worry myself. Here is its e-mail to me. Ofcom response.

I then thought it would be worth e-mailing an FoI to Ofcom to see if that would unearth something worthwhile. Can I please see all the corresspondence you hold that relates to investigations/queries/letters/e-mails between yourselves and the producers of #EducatingEssex, or yourselves and the school, in relation to the producers ensuring that the programme makers ensured that it did not breach the Ofcom Broadcasting guidelines?”

Unfortunately the response I received says that it cannot disclose anything to me as it is all covered by S.44 (prohibition on disclosure) by virtue of S.393(1) of the Communications Act. Ofcom Response to FOI

My question is, does anybody know how I might be able to rephrase my query with Ofcom to extract any information from them about the show?

S.44 is an exemption that I have managed to avoid in the past and such a sweeping use of it would surely make Ofcom virtually un-FoIable. Help.

Some you win - Some you lose……

An aviation mishap?

The Information Commissioner appears to be getting a hurry on in his bid to clear the backlog of outstanding appeals – and two of my cases have recently come through the system.

The first which was lodged against the Foreign Office was ruled on in my favour and the documents were disclosed, the second in relation to the Civil Aviation Authority (CAA) ended up with a Decision Notice in favour of the public authority.

In the CAA case I had asked for details of Mandatory Occurrence Report forms, which are basically accident or potential accident reports, submitted by XL airlines in the 12 months before they went out of business.

I knew the CAA would claim a S.44 (legal prohibition on disclosure) because the documents are covered by S.23 of the Civil Aviation Act. However, I thought I had found a chink in this legislation as it states it does NOT apply if “…the body corporate has ceased to exist or, whether an individual or a body corporate, cannot be found after all reasonable enquiries have been made…”

The ruling was on a relatively simple point I claimed that as XL was defunct it no longer counted as a “body corporate” and the information should be released. The CAA on the other hand said XL was still in existence in that it was in administration and the administrators had been contacted and did not want the information released.

I still feel a little cheated at this decision and cannot believe that the people who drafted the Civil Aviation Act did so with the intention of protecting companies that have in all meaningful laws ceased to exist. If you want to have a look at the ruling you can see it here. [link]

In the other case I had asked for any Foreign Office briefing notes prepared by British embassy staff that offered any insight on who they thought might win the US elections. I wanted to see the documents as I thought that it would be an interesting story if our highly-paid diplomats had called the election incorrectly.

My journalistic juices started to run when the Foreign Office refused to let me see the document claiming it was covered by a S.27 (international relations) exemption. I took the case to the Commissioner who settled the case without the need for a decision notice and I received an e-mail with the briefing notes, which I post up here.

What makes this interesting in a perverse way is that if you read the document the embassy officials can’t really be criticised. They give an intelligent, insightful and fair appraisal of the state of the election at the time and the candidates’ relative chances of success.

Because of this it makes me wonder why the Foreign Office were so reluctant to release the document as it actually paints a rather good light on the work of its embassy staff.

However, what remains unanswered is the “what if” question. What if the assessment document had been completely wrong, and painted the Foreign Office as a bunch of gin-swilling incompetents? What then? Would that strengthen the power of S.27 to save the Government’s embarrassment, or would the public interest also have been strengthened to allow disclosure.

This case has parallels with the Madeleine McCann investigation e-mails request in which S.27 was deemed to have been engaged for comments made by the UK ambassador in Portugal on the competence of the local police force investigating the child’s disappearance. There was something in those e-mails which were so damning that the exemption was allowed to stay in place. See [Maddy search e-mails to remain secret].

Those of us on the outside of the decision-making process will, I am afraid to say, not be any the wiser as to what engages S.27 and what doesn’t until one day perhaps we might catch sight of what lies inside one of those secret documents so that we can compare and contrast.

Abortion data Tribunal begins

Anne Widdecombe didn't get the chance of appearing before the Tribunal

The Department of Health (DoH) has gone to an Information Tribunal in a bid to overturn a decision by the Information Commissioner ordering it to release statistics about late abortions.

Anti-abortion group ProLife Alliance had made the initial request to the DoH which had been refused under S.40 (Personal Information) and S.44 (Prohibition on Disclosure). ProLife Alliance appealed the decision and after 11 months the DoH upheld its original verdict to withhold the information.

The Information Commissioner ruled (link) the data could be given out and that there was no proof that just because the numbers were low it led to the identification of a person.

Government officials at the DoH have appealed the ruling and a Information Tribunal has been taking place in London this week, with the verdict expected later in the summer.

The rarity of late terminations for rare medical conditions means release of data about them could cause ‘mental distress or harm’ should a woman realise she was the only one in the UK to have such a procedure, the Government told a London information tribunal.

Geoff Dessen, deputy director of health and wellbeing at the Department of Health, said a balance had to be struck between openness with information and individuals being identified.

In extreme cases in other countries, identification had led to individuals being murdered, he said.

“Just because it hasn’t happened here yet, doesn’t mean it won’t,” he added. “We don’t know the risks.”

Abortion statistics where fewer than ten cases related to a particular condition have not been published since 2002.

DoH lawyer Christina Michalos said the data related to “sensitive, personal and private” medical information involving women who had had a “devastating experience”. Such disclosure could trigger “mental distress or harm” in one-off cases, she said.

“This case is about the protection of privacy, it is not about politics,” she added. “It’s the right of any person to keep their personal medical information private.”

The four-day hearing was originally going to be held in private at the request of the Government but an agreement was reached with the Information Commissioner’s Office to hold part of the hearing in public.

However, The ProLife Alliance was refused permission to call Tory MP Ann Widdecombe to give evidence in addition to a written statement she has already submitted.

Timothy Pitt-Payne, representing the Information Commissioner, admitted the tribunal was dealing with ‘highly controversial subject matter’. However, he stressed that the commissioner was ‘not taking a position on the rights or wrongs of abortion’.