Posted on December 12th, 2012 1 comment
Help. I’m surfacing from a self-imposed blogging curfew in an attempt to see if anybody out there in the cyberworld can offer me any words or advice or assistance in relation to an Information Tribunal I have become embroiled in.
The public authority in the case is the Health and Social Care Information Centre (HSCIC). It would appear its purpose is to collate all data from the NHS and is responsible for publications on almost everything statistics-based that comes out of the NHS.
Since FoI came in I’ve had limited success getting information from them and finally we seem set to lock horns in an Information Tribunal next week (December 18).
The crux of the issue is can they refuse me the information I seek by applying a S.21 (information reasonably accessible by other means) exemption saying that I can have the data if I pay for it – the price they have quoted me is £1,550.
As I said the issue has a long history and initially in the Information Commissioner’s Decision Notice [FS50420295] the data was refused me on the basis that it wasn’t held by the HSCIC. After my notice of appeal to the Tribunal Notice of Appeal (IR 2012)] the Information Commissioner backed down and said he agreed it was held but that it was now exempt under S.21.
The HSCIC does state on its publication scheme that if you want a tailor-made report then it will cost and they publish a summary of these fees – but can £1,550 really mean that it is “reasonably accessible”.
In my skeleton argument to the Tribunal I have tried to compare the HSCIC with other organisations (The Office of National Statistics, The Ministry of Justice, The Department of Work and Pensions) that hold huge databases but don’t charge people under FoI if they want to “cut and slice” it in a particular way that hasn’t been done before.
My concern is that if my appeal fails it opens up a trap-door in FoI that other organisations will be able to exploit to avoid having to answer questions that they feel will put them to too much work.
I’m up against two barristers – the Information Commissioner and the HSCIC will have one – so any e-mailed advice or assistance in the case would be much appreciated.
Posted on February 17th, 2012 2 comments
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.
Posted on February 15th, 2012 1 comment
The publication of statements yesterday relating to the consultation on the future of Freedom of Information has, I suspect, left many of us gloomy.
I have always thought the powers-that-be, when faced with the stark realisation of just what they had given birth to, would attempt to smother FoI as soon as politically possible.
Their last attempt was scuppered with help from a well organised campaign from the press and the opportune timing of the MPs expenses scandal – brought to us with the help of FoI.
Now the politicians and civil servants have risen from the dead in true local council zombie invasion style (in joke), and are coming back for a second attempt. I’m afraid I’m not optimistic that we can fight them off again.
Why the pessimism? Firstly the press has got a battle for its own survival going on, so can be forgiven for taking its eye off the ball for a while. How upsetting is it that the clowns who hacked into the phones of non-celebrities could potentially be responsible for the retreat of FoI?
Secondly we have the excuse of austerity. “When we are making people redundant and cutting essential services why should we be answering questions about how many toilet rolls we use?” On the face of it the argument seems powerful, but unravels if we look at it more closely. There is a saying that some people know the cost of everything and the value of nothing – it could have been coined for FoI.
The transparency and accountability of FoI gives these public bodies the legitimacy to govern us. Without it where will they be? They seem not to realise that FoI acts as deterrent and antidote to corruption and vested interests. I’m not saying that take FoI away and you’ll have rioting in the streets similar to Athens – but you create that risk.
Finally we have the argument that FoI has not improved Government. If ever there were an example of why Government isn’t improving, it is this piece of “research”. It was never for FoI to improve Government, it was for the people who govern us! FoI was supposed to act as the disinfectant or the light to allow the citizen to see that we were being well governed. Well we’ve had a look and we don’t like what we’ve seen, so what do the authorities suggest? A) Put their house in order or (B) turn the lights out so we can live in ignorance once again? Amazing.
So with this three pronged attack, what will happen?
In a bizarre way I’m relatively optimistic despite what I’ve already said, as I don’t think now there is a hope of squeezing the FoI genie back into the bottle.
But there will be changes and one of the changes they are looking at is introducing a fee. This is such a bad idea, both in a practical and a philosophical way, that I wouldn’t be surprised if that’s what we end up with.
Why would it be so wrong?
- Any marketing expert will tell you that you can’t have a product called the Freedom of Information Act and then charge £10 for it. If Tesco said chickens were free and then charged you a tenner for them, you’d be angry, annoyed and you’d think Tescos was run by idiots.
- Any fee, be it £10 or £50, is going to be complicated to administer. When do the 20 days start? When the funds have cleared? The fee will not actually make any money for the authorities to offset the cost of FoI, but will just sit there to act as a deterrent to questions.
- If you think things are complicated now, just wait until you start charging. When people are made to pay, they will complain more, and they’ll sue. The vast majority of authorities treat FoI seriously now, but everybody will have to shift up a gear if it’s a service that’s charged for. I confidently predict that although the number of requests might plummet the number of appeals will more than make up the workload deficit.
To my shame I didn’t send in a submission to Parliament. But just so as to conform to everybody’s hatred of journalists going of FoI fishing missions, I’m sending out a request to all the Cambridge colleges today (organisations that amazingly think they should now be completely exempted from FoI) asking them how the value of their wine cellars compares with the grants they give to less well off students.
Posted on February 2nd, 2012 No comments
Eric and Ernie, Barker and Corbett, Keegan and Toshack are all great double acts. Few would disagree. At one point in history you might even have added Brown and Blair to that list, as everybody spent the money they didn’t earn propelling us to our present economic meltdown. But will anybody ever mention Cameron and Clegg in those same terms – I fear not.
What makes a great double act? I would suggest it is that the individuals, although they may have different qualities and attributes, are widely perceived to be roughly equal in talent and skill. Also they are made individually better because they act as a foil for their partner. So when Toshack heads the ball on for Keegan to crack it in the back of the net; it’s the same as Ernie feeding Eric a gag.
Now let’s look at the Tweedle Dee and Tweedle Dum of British politics – Cameron and Clegg. After their initial love-in at the No.10 garden, things haven’t gone great for the No.2 man.
Clegg has been made to look a chump by doing the mother of all U-turns on tuition fees and managed to get snared in an unwinnable PR referendum, which means the Liberals will forever be on the fringes of politics.
I’ve now been supplied with a FoI response from the Cabinet Office, sent only after I got the Information Commissioner involved, which shows just how seriously Clegg is taken inside Government.
Those of you who have read this blog before will know I was trying to find out the communication between No.10 and Wimbledon in relation to the deputy MP helping himself to complimentary tickets for the women’s final this year – an event which two of my family attended AFTER winning a raffle AND then paying £200.
The Cabinet Office said they could find no record of him having attended the event! But I saw him on television hobnobbing in the Royal Box.
When I found a photo of him at the event and sent that to the Commissioner the Cabinet Office did at last find a record of the information.
But let’s look at the excuse. Does it give us an insight into just how highly regarded Clegg must be considered within No.10.
“The search for information in response to your initial request was co-ordinated by two members of staff (one inside No.10 and one for the rest of the Cabinet Office). Each thought that the other had contacted the Deputy Prime Minister’s Office, when in fact neither had. I am very sorry for this oversight. I have now taken steps to make the search process more robust in future cases.”
Ignored by not just one official but two!
If you want to see the whole of the letter it is here No10, and the actual e-mail exchange in which Clegg first tries to go on a day when there is no tennis and then seems more concerned about who else will be in the Royal Box is here Emails.
Posted on January 18th, 2012 1 comment
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.
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.
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.
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.
Posted on January 17th, 2012 No comments
You can’t fail to have noticed that the issue of maritime safety has shot up the news agenda recently.
The apparently cack-handed way the ship was driven into the rocks and its subsequent sinking give a whole new meaning to the term “European bail-out”. Women, children and nationals from countries without a AAA rating abandon ship first.
But the subject brings me back to an interesting squabble I’ve managed to get myself into with the Department of Transport.
At the back end of last year I asked the following question: “Please could you provide me with a copy of all the SAFA Ramp Inspection Reports you hold dated from 1.1.10 to the present date where any Class 3 (major influence on safety) action has been recorded.”
For those of you not familiar with the plane inspection regime my understanding is that official can swoop on aircraft at any time and then fill in a form about its airworthiness.
As you can see from my question I just want the ones where there has been a Class 3 finding on the basis that if the experts say it has a problem which is a major influence on safety, that is in the public interest.
But my request has been turned down. See the letter here. plane…………. The Department of Transport relied on S.27 (International Relations) and S.30 and S.31. All of which as we know are subject to the public interest test. Yet it is thought that the knowledge of which planes have major safety defects is best kept from us.
This would be an interesting enough case on its own if it were not for the fact that I believe the Department of Transport then took aim at their own feet and fired off a volley of shots.
While trawling the internet I found a spreadsheet that had been provided to an MP that gave details of all inspections that had been carried out by an agency of the Department of Transport on ships.
I then asked a follow up question saying could I have all the detailed report sheets on those ships which when inspected were deemed the most dangerous, and were banned from setting sail until the defects were corrected.
On this occasion there were no fears that the reports might adversely affect our relationships with foreign nations or that it would bring the whole inspection regime collapsing around our ears. Here are two of the reports I was provided with of ships that were too dangerous to be allowed to leave port in October last year.
By the incredible power of the internet you can even now see where both ships are. When I last looked Adinath One was near Malta and Ocean Bridge was somehwere off the coast of West Africa. But the main thing, I suppose is that they are both on the sea rather than under it.
Anyhow, I’m looking forward to seeing how the Department of Transport can justify treating plane safety one way and ship safety completely differently. I’ll keep you posted.
Posted on January 16th, 2012 6 comments
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.
Posted on January 12th, 2012 2 comments
The news that a NHS hospital is staring down the barrels of a massive £375,000 fine for ‘losing’ hard drives containing patients details has prompted a good deal of comment, and I’m sure will provoke a whole lot more.
The BBC report the story [here] saying the Trust will be challenging the level of the fine.
Experts in the field have been saying that it was only a matter of time before the Information Commissioner flexed his new powers and gave an organisation a good financial thrashing.
Some people are concerned that these fines, if they are eventually levied, shouldn’t be too onerous because they will take money away from patient care.
It is an argument, but not one that I agree with. Why not?
Firstly, organisations for too long have relegated DP and Information Governance concerns to the bottom of the pile, the responsibility of those “beardy people” in the computer basement. We know it’s much more important than that, and should be as integral to the good running of a hospital as making sure they have clean scalpels.
Secondly people are concerned that the money disappears from the public sector. It doesn’t, in fact it just gets recycled around via the Consolidation Fund back into the public purse, albeit the institution that is paying may suffer some short-term financial hardship.
Here is where my proposed amendment to the Act comes in. If the driver behind these fines is to make sure that hospitals and other organisations abide by good practice the fines should be levied on the executives NOT the organisation.
I say this from bitter experience of having the misfortune to deal with too many FoI officers who were shunted into the job and then given no support from their organisation.
When I started asking FoI questions and then appealing nonsense responses I would sometimes get a call from a beleaguered officer pleading with me not to drop my case. They were desperate for me to appeal to the ICO so that their executives would feel the commissioner’s hot breath on their necks.
I’m not saying this took place with my requests to this hospital trust, but there are organisations still out there that seem to have nothing but contempt for FoI and DP. What they need, and what those organisations’ FoI officers need is a nice big fine to land on the chief executive’s desk.
The BBC story quotes Duncan Selbie, the chief executive of the Brighton and Sussex University Hospital Trust as saying: “As soon as we were alerted to this, we informed the police and with their help we recovered all the hard drives.
“We are confident that there is a very low risk of any of the data from them having passed into the public domain.”
Some might say that Mr Selbie, who was paid £200,000 last year to run the Trust, would say that.
Here is my new policy. As well as fining the organisation the Information Commissioner should be able to rule that nobody working in the DP or FoI sections of that organisation is allowed to earn less than one-fifth of the Chief Executive. That, I think, would concentrate minds.
Posted on January 11th, 2012 2 comments
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.
Posted on January 10th, 2012 No comments
This year my wife and son managed to secure tickets for Wimbledon. We acquired them through the draw that was held at our local Sussex tennis club, and as luck would have it they were for the Women’s Final.
On the day of the match I was left at home watching the contest on television while those two travelled up to SW19 to enjoy the contest.
I should say here that although we “won” the tickets what we actually won was the right to buy them for roughly £100 each – no half price reduction for kids at the All England Club.
So when I watched the match and saw the cameras cut to the Royal Box to see the nation’s esteemed deputy leader hob-knobbing in the front row with his wife I saw a chance to recoup some of my outlay.
What about FoIing the Cabinet Office to see the communications chain between Mr Clegg and Wimbledon? So I sent off a FoI request to those lovely people at the Cabinet Office.
My first reply was that they held no information and that everything is published in the hospitality register. I appealed the decision and was told effectively, that was it, go away.
I appealed to the Information Commissioner saying I wasn’t that interested in the actual hospitality – as I know what it was because I saw him – what I really want is the communication chain behind the invite.
A little later a letter arrives from the Cabinet Office saying they have now managed to find some communication. I attach it here. Cabinet Office letter
But to my surprise this relates to the Prime Minister and his wife saying thanks for the invite but they won’t be able to make it.
So I’ve told the Information Commissioner I’m not dropping the appeal on the basis of what I’ve been sent so far and I’ve sent off the picture below, just to prove I wasn’t dreaming it.
Some of you might think I’m making a fuss over this, and you are entitled to your view. However, if Mr and Mrs Clegg are going to accept tickets for Wimbledon that the hoi polloi have to pay hundreds of pounds for they can expect a bit of scrutiny.
And what do the Cabinet Office take us for? Idiots? Are we supposed to believe that Clegg and his wife didn’t have anything to do that Saturday and thought they would just turn up and see if they could talk their way in? I’ll keep you posted on developments.