Posted on May 18th, 2009 No comments
The Department of Health (DoH) has been ordered to release background information it holds in relation to a public pronouncement that women should avoid all alcohol while pregnant or while trying to conceive.
In a sweeping decision the Information Commissioner’s Office (ICO) stated the release of the contested documents could improve the quality and administration of decisions within Government.
The DoH had said it should not have to release the information as it was subject to S.35 (Formulation of Government Policy) and the balance of the public interest was in favour to maintaining the exemption.
However, in a ruling [Ref: FS50198015] from ICO it was stated that although the exemption was in place the public interest test had been miscalculated and the papers should be disclosed.
The original question to the DoH was made in June 2007 and was for “information concerning how the DoH reached its recent decision to recommend that pregnant women and those trying to conceive should avoid alcohol.”
The DoH had said a decision to release the documents would have the so-called ‘chilling effect’ on civil servants and health professionals who had been involved in the process.
But this argument was overruled by the ICO who said the DoH had failed to give clear evidence of how the ‘chilling effect’ applied to the specific case.
In conclusion the decision notice says: “the Commissioner considers that that civil servants must be expected to provide full and candid advice as part of their professional duties. Therefore he does not accept that they will be easily discouraged from contributing fully during the policy formulation process if the requested information is released.
“Moreover, given the interests that other stakeholders have in shaping policy to meet with their own interests he does not believe that they would readily be less candid or refuse to contribute to future policy in the event of the material being disclosed.
“However, he is also mindful of the proximity of the timing of the request to the completion of the guidance and the content of the disputed information, some of which is particularly free and frank. In view of this he has attributed some significance to the chilling effect argument.”
The Commissioner even went on to state that releasing the information could in fact improve decision making within Government, saying: “Disclosure would promote the accountability and transparency of the DoH for the decisions it has taken in respect of the guidance.
“Placing an obligation on the DoH and officials to provide reasoned explanations for decisions made will improve the quality of decisions and administration.
“In this case the Commissioner considers that there is a significant public interest in releasing the requested information as it would help to explain the reasons behind the re-wording of guidance about alcohol consumption during pregnancy.”
Posted on May 13th, 2009 1 comment
The Information Commissioner has revealed details of those authorities who have received a ticking off for their Publication Schemes.
In January the Commissioner issued new guidance for authorities in relation to their Publication Schemes and said there would be a system put in place to ensure everybody was coming up to standard.
Following a Freedom of Information request to the Information Commissioner’s Office (ICO) we now have a few more details of what that actually means. (link)
The first section that the ICO intends to monitor is central Government. The surveillance which started on April 20 will last for around four weeks and then a report will be prepared around mid-June.
After that it would appear that the ICO will move on to different sectors – I’m afraid I didn’t ask for a list to see who was top and bottom of the monitoring list. But from that timescale I presume that if you are a sector at the bottom it could well be well in 2010 before the ICO starts clicking on your website.
However, the ICO did reveal that a number of public authorities have been written to since January to get a telling off about their publication scheme. These organisations are Staffordshire Primary Care Trust, Royal Mail, Lancashire Police (please see comment), South Wales Police, Northern Ireland Legal Services Commission and the City and County of Swansea.
The ICO also said that the issue of improving the Publication Scheme had been raised verbally with Leeds City Council and the Metropolitan Police.
So remember the ICO is watching.
Posted on May 13th, 2009 No comments
I saw this video clip on the BBC and had to post it up. It looks as if MPs have been backed into such a corner about the way they have been taking the taxpayers to the cleaners for so long that they are fighting back. And who is in their sights – the BBC – that other great British institution that is paid for by the taxpayer but less than open about how it spends the money.
Posted on May 11th, 2009 No comments
For those of you who haven’t had enough of MPs’ expenses here is an interesting piece from a journalist in the centre of the storm.
My four-year battle for the truth;
The Sunday Telegraph journalist who exposed the expenses story
When I set out four years ago to uncover the secrets of the second home allowance, I had a fair idea that I would turn up some rather dodgy claims.
But what I never anticipated was the lengths to which MPs would go to try to prevent us, the taxpayers, from discovering what they spend our money on.
It was January 2005 and the Freedom of Information (FoI) Act had just come fully into force. It was, and should still be, one of Labour’s proudest achievements. Lord Falconer, then the lord chancellor, declared that year: “The culture of secrecy in Whitehall and beyond is cracking open.”
To test the new Act’s reach, I asked to see the receipts submitted in support of claims made by six MPs for Additional Costs Allowance, the fund, now worth up to pounds 24,000 a year, intended to allow MPs whose seats are outside London to meet the extra cost of running two homes.
Since Parliament had passed the Act, and had taken the admirable decision that its own affairs should fall within the scope of the new law, surely it would comply with this request?
It appeared not. Months passed. My request was rejected, then rejected again. I appealed to the Information Commissioner who, inexplicably, took two years before proposing, in June 2007, a compromise. This would have seen each MP’s annual claim broken down into categories such as rent, or household goods, but without receipts or further detail.
We would have never known if the household goods claim was for a table or a fish tank.
The Commons authorities thought that even this was a step too far, and appealed to the Information Tribunal. It was a bad strategic error. The tribunal rejected the Commons’ case and instead backed my counter-appeal, ruling in February 2008 that details of expenses claims should be published in full, including receipts.
Under the leadership of Michael Martin, the Speaker, the Commons went to the High Court to try to overturn this ruling, running up a bill of pounds 150,000 in the process.
But the judges upheld the tribunal’s decision, declaring in their ruling last May: “We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities. The expenditure of public money through the payment of MPs’ salaries and allowances is a matter of direct and reasonable interest to taxpayers.”
So I won, and the expenses for the six MPs were released to me. They covered the period 2001 to 2004. Despite this being a test case, the Commons authorities have now destroyed all other MPs’ receipts from that period (they even destroyed some of Tony Blair’s receipts, which I had asked for, while my request was under consideration; they later apologised for this “mistake”.)
Crucially, both the tribunal and the High Court agreed with me that MPs’ addresses must be disclosed in order for the system to be fully open. Without this step, all sorts of bogus claims, such as MPs paying “rent” to close relatives or claiming for properties they do not genuinely live at, could carry on undetected.
So too could “flipping”, the practice, now shown to be widespread, of changing the designation of “second home” back and forth between properties to enable major refurbishments at each address to be carried out at the taxpayers’ expense.
Such abuses ought to be spotted by the fees office, of course, but MPs have never given it the teeth or the funding to operate as a policeman. Instead it works on trust, which all too often turns out to be misplaced.
Even when the Commons authorities began last summer to prepare the one million receipts we now see emerging, MPs still did not get it. Some, led by Julian Lewis, the Tory member for New Forest East, campaigned to keep their addresses secret, citing security concerns.
Their campaign was successful. Last July, Parliament quietly approved an order which exempted MPs’ addresses from the scope of FoI.
The tragedy of the expenses affair is that the MPs who fought so hard for secrecy have made themselves and their colleagues look furtive as well as greedy. They have brought politics into disrepute.
Over and over again, from the Private Member’s Bill proposed by David Maclean, Tory MP for Penrith and the Border, in 2007, to the attempt by Harriet Harman, the Commons leader, in January this year, backward-thinking MPs have tried to exempt their expenses from the reach of FoI, only to be thwarted by the Lords, the public and their wiser colleagues.
The current series of disclosures in the Telegraph has demonstrated that questionable allowance claims can sometimes only be exposed by careful scrutiny of the addresses.
Gordon Brown talks of an urgent need to change the system, but it is too late.
The mistakes have been made, and MPs will have learned their lesson.
Let’s reverse the law that exempts addresses from FoI, but otherwise leave the system as it is.
Now that MPs know the public is watching they will, surely, be paragons of thrift.
Posted on May 6th, 2009 2 comments
The Information Commissioner’s Office has come back to me and provided an answer for the number of appeals it has had now for more than a year. The answer is a staggering 416 of which 25 haven’t even been dished out to an officer to start the process of an investigation.
The BBC comes out top of the list – unsurprising really as they try to avoid almost all requests by claiming the Act does not apply to them and referring those complaints straight on to the ICO without offering an internal appeal.
You can find the answer to the question at this link and the spreadsheet shows all the organisations that have an appeal stuck in the ICO’s pipeline. But here are the highlights.
The Public Authorities with the most appeals lodged with the ICO that have been there for more than a year:
Cabinet Office (21)
Home Office (18)
Ministry of Defence (17)
Department of Health (13)
Ministry of Justice (12) + 5 (National Offender Management Service)
Metropolitan Police Service (10)
Foreign & Commonwealth Office (8)
Department for Culture Media and Sport (7)
Wakefield Metropolitan District Council (5)
Brighton & Hove City Council (3)
Buckinghamshire County Council (3)
Cambridge City Council (2)
Ferryhill Town Council (2)
Kent County Council (2)
Liverpool City Council (2)
London Borough of Bromley (2)
London Borough of Camden (2)
London Borough of Enfield (2)
London Borough of Islington (2)
Shotteswell Parish Council (2)
West Sussex County Council (2)
Winchester City Council (2)
Wokingham District Council (2)
Metropolitan Police Service (10)
Chief Constable Lancashire Constabulary (3)
Cambridgeshire Constabulary (2)
Chief Constable Greater Manchester Police (2)
Police Service of Northern Ireland (2)
National Policing Improvement Agency (2)
Newcastle College (2)
Oxford University (2)
Posted on May 5th, 2009 No comments
The Information Commissioner’s Office (ICO) has at last dealt with the oldest appeal on its desks – a case which it took just under FOUR years to resolve.
On January 12, 2005, an applicant asked West Yorkshire Police for the numbers of illegal firearms the force had seized in the last five years. The requester also asked: “Could I have copies of any reports prepared by, or received by West Yorkshire Police on the issue of gun crime or gun-related crime in the region or which include substantial reference to those issues over the same time period.”
Some information was provided to the applicant but when access to the reports was not forthcoming an appeal was lodged with the ICO on April 29, 2005.
The appeal notice stated that the reports were provided to the applicant in a redacted form but this didn’t satisfy the requestor. The redacted sections were justified by the police by the use of: Section 30 (Criminal Investigations), Section 38 (Health and Safety), Section 40 (Personal Information) and Section 41 (Information Provided in Confidence).
A ruling was made by the ICO in a decision notice [FS5073382] which was dated March 16, 2009 – three years and eleven months after the appeal was lodged.
It states that the redactions due to S.41 were incorrectly applied. The ICO ruled that although some of the information came from third parties it was the police that created the reports, even if some of the conclusions were based on the third party evidence. The ICO stated the exemption was not engaged because the information was not obtained from another party.
In relation to S.30 the ICO ruled there were two types of information – some that related to specific crimes and investigations and secondly data and reports which are an amalgamation of individual crimes. He ruled that the specific crime information was covered by the exemption and the public interest was in favour of the information being withheld. However, he said the more general information was not covered by S.30.
The decision notice says: “the Commissioner considers that the information which relates to patterns of criminal activity in geographical areas, patterns of crime occurrence, intelligence and analysis is not information relating to any specific investigation and therefore cannot be exempt under section 30(1).”
West Yorkshire Police had used S.40 and S.38 to protect the names of people in the report saying that to disclose them would be a breach of their personal data and would expose them to risk. The ICO agreed that it was personal data so didn’t then go on to consider if S.38 had been engaged on not.
The result of four years of waiting was that a total of 47 pieces from the six documents which had been redacted will now have to be disclosed to the applicant.
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.
The Information Commissioner’s Office (ICO) has warned another four NHS authorities about the way slipshod way they are handling patient data. All four organisations have signed undertakings to improve.
Mick Gorrill, Assistant Information Commissioner at the ICO, said: “These four cases serve as a stark reminder to all NHS organisations that sensitive patient information is not always being handled with adequate security.
“It is a matter of significant concern to us that in the last six months it has been necessary to take regulatory action against 14 NHS organisations for data breaches. In these latest cases staff members have accessed patient records without authorisation and on occasions, have failed to adhere to policies to protect such information in transit. There is little point in encrypting a portable media device and then attaching the password to it.
“Data protection must be a matter of good corporate governance and executive teams must ensure they have the right procedures in place to properly protect the personal information entrusted to them. Failure to do so could result in patient information, including sensitive medical records and treatment details falling into the wrong hands. Ultimately, the organisations risk losing the confidence of patients and their families.
“The Data Protection Act clearly states that organisations must take appropriate measures to ensure that personal information is kept secure. These four organisations recognise the seriousness of these data losses and have agreed to take immediate remedial action.”
St Georges Healthcare, London. Six laptop computers were stolen from the hospital’s Cardiac Management Offices. The laptops held information relating to almost 22,000 patients including their name, date of birth, contact details, hospital number and brief details of the patient’s planned treatment. Due to network connection problems the patient data had been stored on laptops against the Trust’s policy and the data was not encrypted.
Cambridge University Hospital Trust. A car wash attendant found a memory stick which when plugged into a computer revealed it held data belonging to the Trust and contained personal data of 741 patients. The memory stick, which was privately owned and unencrypted, contained data relating to medical treatment and had been left in an unattended car by a staff member from the hospital. The data had been downloaded on to the memory stick without the knowledge of the Trust.
The North West Hospitals NHS Trust. Two laptop computers stolen from the Audiology department of Central Middlesex Hospital held information on 181 patients including their name, date of birth, NHS or hospital number and hearing test results. The data was not encrypted. In a separate incident a desktop computer was stolen from the Clinical Haematology offices at Northwick Park Hospital. That computer held information on 180 patients including their name, hospital number, date of birth and some clinical follow up information. At the time of the theft, the swipe card security system that controlled entry to the building had been disabled for maintenance. The database containing the personal data in question was password protected, but was not encrypted.
Hull & East Yorkshire Hospitals Trust. A desktop PC, containing details of 300 patients, was lost during refurbishment of the renal dialysis office and a disused laptop, which held the data on around 2000 cancer patients was stolen from a locked office. Both devices were unencrypted.
The individual undertakings issued by the ICO can be seen here.
FoI officers have been invited to a talk at the Reuters Institute for the Study of Journalism to hear Jeremy Hayes of BBC Radio 4′s ‘The World Tonight’ give a report on the media’s use of the legislation.
His paper, entitled ‘A SHOCK TO THE SYSTEM: Journalism, Government and the Freedom of Information Act’, explores not only the media’s use of the Act but the way it has changed the reporting landscape for journalists and public authorities.
The session, which is open to all, is being held at the Reuters Institute, in Oxford, on May 20, at 5pm. (link)
Also in attendance will be Jon Ungoed-Thomas, Chief reporter of The Sunday Times and Steve Wood, former blogger and now Assistant Information Commissioner.
Below is a little bit of information about the report:
Journalists using the Freedom of Information Act have forced details of MPs’ Second Homes allowances into the open, with embarrassing results for Home Secretary , Jacqui Smith and other Ministers. Many other revelations have come about through the Act in the spirit of Open Government.
But over four years the Act has become a game of Cat and Mouse with Whitehall with protracted delays and appeals to official arbiters like the Information Commissioner making requests for Information a gamble for journalists working to a deadline.
‘A Shock to the System’ is an incisive and informative report by Jeremy Hayes of BBC Radio 4′s ‘The World Tonight into how FOI is working in Britain. Mr Hayes, a BBC Fellow at the Reuters Institute for the Study of Journalism, has interviewed the main players in the Freedom of Information world. He explores the pressures in the Civil Service and government which led Justice Secretary, Jack Straw to veto the release of Cabinet papers over the decision to go to war in Iraq, as well as other critical policy decisions.
He reveals the growing role of Campaign organizations in using the Act to bolster their agenda and explains why to some journalists, with an eye on public bodies like Health Trusts and national agencies, FOI has become a gold mine for disclosures of previously confidential information.