Posted on September 28th, 2009 No comments
The taxman has suffered a defeat at the hands of the Information Commissioner who ruled that more details on the level of complex so-called “carousel” VAT fraud should be revealed.
An applicant had asked a number of questions relating to this fraud which it is estimated could cost the taxpayer as much as £2billion per year.
The request, which was dealt with by HM Revenue and Customs, refused to release the data claiming it was covered by S.31 (Law Enforcement).
It claimed that disclosure of the information could lead to criminals knowing how successful it was at stamping down on the fraud and encourage criminals to change tactics to avoid being caught.
However, the Commissioner said the information requested was so limited that the worries stated by HMRC were overstated.
The Commissioner said: “The Commissioner does not accept that disclosure of the requested information would be likely to have an adverse impact on the public authority’s effectiveness in tackling MTIC (carousel) fraud, therefore prejudicing its collection and assessment of VAT. Accordingly, he does not find that the exemption is engaged.”
The full decision notice can be read [here].
Posted on September 25th, 2009 No comments
The Information Commissioner has given us a peek into his “Enforcement Action Log” which details those authorities that are being actively monitored by the ICO for not complying with the Act.
The data of who has fallen under the scrutiny of the ICO was released following a Freedom of Information question that was posted on WhatDoTheyKnow.
However, the Commissioner has only released details from the Log of those cases that have now been closed – all those authorities that are still being monitored have been redacted from the spreadsheet under S.31 (law enforcement).
But the spreadsheet which you can view here [Enforcement Action Log Closed cases] does make interesting reading. Those public authorities that have been probed by the Commissioner include:
Avon and Somerset Police: Issues relating to the way it was destroying information.
Birmingham City Council: Problems complying with the 20-day S.10 guideline for dealing with requests.
Department for Culture Media and Sport: Came to attention for late handling of requests and internal reviews.
Department for Work and Pensions: Problems with piecemeal disclosure.
Doncaster Council: Monitored by the ICO for six months for S.10 and other breaches. At the end of review the council was dealing with 94% of cases within 20 days.
Exports Credits Guarantee Department: Again monitored for six months in a bid to improve the time taken for requests and internal reviews.
Foreign and Commonwealth Office: “Poor” public interest test arguments and long review periods.
Haringey Council: Provided monthly updates to the ICO because of poor S.10 compliance. Has to provide a report to the ICO in November 2009 to update on its progress.
Kent County Council: Case was closed after it gave a detailed response stating how improvements had been made and staffing increased.
Office for National Statistics: Call for greater staff training.
Rother District Council: Told to look at ICO guidance after making e-mailed FoI requests invalid.
It is interesting up to a point but what would really be fascinating is a list of the organisations the Commissioner is actively looking at.
Any guesses as to who might be on that list? The Ministry of Justice? The BBC?……..
Posted on September 24th, 2009 No comments
We all know that “Nobody likes a smarta**e” so I will have to be careful as I write the rest of this post but I cannot help myself but say “I told you so”.
The subject in question is speed cameras – a vexed topic – that has since the introduction of the Act seen speed camera partnerships anxious to limit the information people could find out about how they operated.
Central to the argument was the fact authorities clung to the life raft that they called “site-specific” data. This meant that if you asked a question about one specific site you wouldn’t get an answer as it was claimed that this was covered by S.31 (law enforcement) and S.38 (health and safety).
But that blanket ban to site-specific data first sprung a leak in Bucks Free Press v Information Commissioner and has now been blown out of the water by a recent decision by the Information Commissioner v Essex Police [FS50222048].
The applicant had asked for how many speeding tickets were issued annually as a result of a camera position on the M11 southbound in Woodford, Essex, just where the carriageway goes from three lanes to two. It has long been suggested that this camera is the busiest in the whole of the UK, but because people could not find out the statistics nobody knows for sure – yet.
Essex Police refused the request arguing S.31 and S.38. It, along with other forces, would claim the release of data might make people more likely to speed if they could make an informed guess at whether a camera was likely to be operational – and that this could lead to an increase in speeding and a resultant rise in accidents.
When the case went to appeal I imagine Essex Police thought the case was pretty watertight considering the rulings that had gone in the past. However, obviously anxious to move in favour of the Tribunal’s position in the Bucks Free Press case the Commissioner has done a 180 degree turn from the South Yorkshire Police case and come out in favour of releasing the information. So I was right all along then!
The Commissioner said in his ruling: “The conclusion of the Commissioner is that the likelihood of prejudice to the prevention or detection of crime through disclosure of the information in question is not real and significant. The exemption provided by section 31(1)(a) is not, therefore, engaged. This conclusion is based on the observations of the Tribunal in Bucks Free Press, the lack of convincing argument from the public authority that the line taken by the Tribunal in that case should not be followed here, or any suggestion based on the content of the information in question that this would reveal an enforcement pattern likely to influence drivers’ behaviour in a manner prejudicial to the prevention of crime.”
On the subject of S.38 he said: “The next step is to consider whether there is a real and significant likelihood of drivers increasing, or failing to reduce, their speed at the location specified in the request as a result of disclosure of the information requested by the complainant. On this point the analysis and conclusion of the Commissioner are the same as set out above in connection with section 31(1)(a); as the Commissioner does not accept that the information in question reveals any pattern of enforcement that would be likely to influence drivers to believe the camera was not active on any given date, neither does the Commissioner believe that the likelihood of endangerment to health and safety resulting through disclosure is real and significant. The exemption provided by section 38(1)(a) and (b) is not, therefore, engaged.”
As the Commissioner ruled neither exemption was engaged he did not even go on to consider if the public interest applied in the case.
One thing I found puzzling was no mention was made of vandalism to speed cameras. I have come in for some criticism after articles I have written about speed cameras have seemed to be the spur for attacks on cameras. However, this point was not brought out by Essex police but if somebody torches the M11 camera soon expect an appeal to be lodged at the Tribunal.
Posted on September 22nd, 2009 No comments
The Information Commissioner has ordered the Department of Health to release a letter from a former Treasury minister concerning the NHS consultant contract – which went £150m over budget.
The Department of Health received a request under the Freedom of Information Act for the business case on the consultants’ contract which it provided to HM Treasury in 2002. The requester also asked for a copy of HM Treasury’s response.
The matter was referred to the Information Commissioner’s Office (ICO) and, during the course of the investigation, the Department of Health did release its business case in full.
However, it has maintained that the Treasury’s response should not be released on the grounds that it is covered by S.35 (formulation and development of government policy).
The Information Commissioner agrees that the exemption applies. Nonetheless, the letter from a Treasury minister, which contains the response to the business case, must be released on public interest grounds.
The Information Commissioner was not persuaded by the view that disclosure would affect the frankness and candour with which ministers would debate policy issues in the future.
The Decision Notice [link] also highlights that this contract is no longer a ‘live’ issue, but that there has been significant public interest in whether the contract has delivered value for money.
On WhatDoTheyKnow I have asked for the information here. [link]
Posted on September 21st, 2009 No comments
I had a call from the Information Commissioner’s office yesterday about the prospect of utility companies falling under the remit of the Environmental Information Regulations (EIRs).
When the Act first came in it was implied that water and electricity utilities would come under the umbrella of those organisations that were covered by the Act.
However, perhaps unsurprisingly the utility companies have not all wanted to join the information revolution.
The key part of the Act is S.2 and says that those bodies that fall under the Act include “any other body or other person, that carries out functions of public administration” – not unreasonably people had expected that those organisations that bring us our water and electricity might fall under this section.
Some utilities already accept this view and are answering Environmental Information Requests already. But not all of them.
I asked Thames Water the following question earlier this year: “Please could you tell me the volume of human sewage, referred to as sludge, that has been sold by Thames Water in each of the following financial years (05/06), (06/07), (07/08) and (08/09)? For each year also state the total income received by Thames Water for the sale of the product.”
I thought the fact that Thames Water might be coining it in by selling our c**p (quite literally) to farmers would make a good story. My letter to the Chief Executive went unanswered I’m afraid, as did a follow up to the press office.
So I complained to the Information Commissioner and was told that I am one of at least ten requests that are being “parked” while the issue of whether the EIRs apply to utilities is discussed.
It would appear that a number of tactics are being used by the Information Commissioner to resolve the issue and that legal action against the utilities is not being ruled out, although a voluntary agreement would be preferable.
I am told the issue will be settled “sooner rather than later” but remembering the Commissioner works to a geological timescale I won’t be holding my breath.
Posted on September 18th, 2009 3 comments
Freedom of Information officers often come up against the problem of when and if statistical data can be seen on specific occasions to be a breach of S.40 (Personal Information).
Most commonly this problem has been seen in tables of data – often about medical conditions – where the public authority will put a dash “-“ in any cell where the value is less than five.
The Department of Health (DoH) regularly uses this technique when providing tables showing the number of women who have had multiple abortions.
You will see from this Abortion data table that there are a handful of under-18 girls who are on their third abortion or more – yet the DoH refuses to give us the exact figure.
In Scotland there was a long-running dispute over whether low cell values in a table of the prevalence of childhood cancer, could lead to those children being identified.
I have to say that I still have difficulty with the concept and certainly do not accept that any cell value under 5 or ten automatically has to be anonymised. In the abortion table example how would knowing that six women aged under 18 had their third abortion that year led to their identity being exposed?
The key to these questions, in my opinion, is the total pool from which the information is drawn. So in the abortion data case your pool of identifiable candidates is all the women aged under 18 in the whole country.
But this vexed problem of low cell values has taken a different turn in the case of Beresford Lane in the Sussex village of Plumpton Green.
A company that wants to put together data for prospective house buyers asked the local police force for data about anti-social behaviour in the lane for a six month period.
Sussex Police refused to either confirm or deny (NCND) it held any such information as it claimed that to state it held such information could lead to the identity of either the victim or the culprit. This use of S.40 was rejected by the Commissioner and has now also been thrown out by the Tribunal.
But the key element in this case was in essence the “total pool”/“cell value” which in this case was the number of people who lived in the lane against the number of anti-social behaviour complaints in that lane.
The Tribunal came to the following conclusion: “The Appellant says that if it confirms or denies that it holds the requested information, that could lead to the identification of either those who have made complaints about ASB, or those about whom such complaints have been made. Clearly, if it does lead to such identification, that would amount to disclosure of personal data. The question is – would it lead to such identification?
“The facts before us are notably brief. We have been told that Beresford Lane, Plumpton Green, BN8, is a rural road with approximately 17 residential dwellings. Presumably, many, if not most of the 17 dwellings, will have multiple occupiers which means there are likely to be many more than 17 people living in the area covered by the request. The request covers a period of 6 months. We have no other facts of any significance. On these simple facts, we have great difficulty in seeing how, if the Appellant confirms or denies that it holds information on the number of ASB complaints reported, and the descriptions of any such ASB complained of, in that period and for that location, that would enable a living individual to be identified as having either made a complaint or having been the subject of such a complaint, or indeed to be identified in any other way. The Appellant has simply not demonstrated how that connection could be made.
“The position might be quite different on different facts. For example, if there was a known incident concerning one or more particular dwellings or individuals and if the time period covered by the request was relatively specific to that incident, a confirmation or denial could well lead to an individual being identified. That, however, is not the situation in the present case.”
So it would appear that in this case the Tribunal thinks that to disclose information about a cohort – sadly we don’t have an exactly figure but the number of people who live in 17 houses (34?) – will not breach S.40. But as the Tribunal has said different circumstances and different figures might lead to a different ruling.
The key question is when does that group number get so low that S.40 would be breached. And it appears that the Tribunal has neatly ducked out of answering that question.
The Tribunal ruling can be seen here. Tribunal decision.
Surrey Police has been ordered to reveal details from a letter sent to it by a Chief Constable from a different force who had made comments about the way Surrey Police had investigated four controversial deaths at Deepcut Army Barracks.
The letter to Surrey’s Chief Constable had been sent by The Chief Constable of Durham Constabulary, who had written to the public authority in the capacity of the Association of Chief Police Officers (ACPO) lead on the Homicide Working Group.
Surrey claimed the letter was exempt from disclosure under S.30 (Investigations), S.36 (Prejudice to Public Affairs) and S.40 (Personal Information).
It would appear from the decision notice that the letter and another one sent by the same officer within two months of the first were critical of the way Surrey Police had carried out its investigation into the death of the four soldiers.
The Information Commissioner ruled that the S.30 exemption did not apply to the information at all.
A key part of this reasoning was that the letter was tangential to the actual inquiry – and NOT part of it. The decision notice said: “However, section 30(1)(a)(i) specifies information held for the purposes of a relevant investigation; it is not sufficient for information to merely relate to an investigation.”
Surrey Police’s arguments were undermined in this section as well by the fact that a report on the deaths had already been published which was entitled ‘Final Report’. The police attempted to argue the investigation was still open as inquests had recorded open verdicts on the deaths and so as no conclusion had been reached the inquiry was still a live affair.
In conclusion the Commissioner said the information has not at any time been held for the purposes of a relevant investigation and that the police had not put forward an explanation of why the exemption applied to the information. Therefore it was ruled S.30 did not apply and the public interest argument was not considered.
On the topic of S.36 the decision notice states the Surrey Chief Constable acted as the qualified person (QP) to claim the disclosure of the letter would inhibit “free and frank” discussions.
Here the Commissioner appears to be critical of the Chief Constable in that the time put in to assessing the case, and the evidence of this procedure are not shown. The Commissioner states: “That this opinion was sought on the same day as the refusal notice was issued calls into question how thorough a process was undertaken by the Chief Constable when forming his opinion. However, in the absence of evidence that the QP did not give an opinion, even if this opinion was cursory and provided at short notice, the Commissioner accepts that an opinion was given by the QP.”
It was accepted by the Commissioner that part of the S.36 exemption applied but it was ruled the public interest was in favour of disclosure.
The decision notice noted there had already been a number of investigations and reports into the deaths at Deepcut. But like the Commissioner’s ruling relating to CCTV pictures of the July 7 bombers the fact there was no public inquiry had been held helped to tip the scales over in favour of disclosure.
The decision notice reads: “First, the Government has stated that no full public inquiry into the Deepcut deaths will be held. Such an inquiry may well have had a significant reductive effect on the public interest in disclosure. In the absence of such an inquiry, the public interest in disclosure remains significant.
“Secondly, rightly or wrongly and despite the various investigations and reviews, the suspicion that the full facts and causes of the Deepcut deaths have not been disclosed remains. As previously noted, disclosure that would resolve this suspicion would be in the public interest.”
The Commissioner also threw out S.40 claims and has told Surrey Police to release the information concerned – albeit that at late date the scope of what was in the letter that directly related to the request was cut down.
Note: It is an interesting distinction between information held for the purposes of an inquiry and those held that relate to an inquiry. Does this mean that a post event inquiry into the competence of an investigation should be immune from S.30 protection?
UPDATE: 18.9.09: Surrey Police are not releasing the information and I have been informed intend taking the case to a Tribunal.
Two councils have got into trouble with the Information Commissioner after losing data on children.
Sandwell Council has signed an undertaking [link] after one of its employees lost an unencrypted memory stick that held details relating to four families where vulnerable children, who had either been taken into care or were the subject of child protection plans.
The staff member had downloaded the details on to the stick so that they could do work from home but the device was lost on the journey.
It contained information relating to four families and was not password protected. The stick included details of why the reasons the children were under the care of the council’s children protection team.
At Wigan Council the Chief Executive Joyce Redfearn has also had to sign an undertaking [link] after a laptop computer containing details on nearly all the children in the authority was stolen.
The laptop, which was password protected, was stolen from a locked office. But the details of 43,000 children had been downloaded on to the machine in breach of the Council’s policy.
I have reprinted below an article that appeared in the Guardian. I have to say that personally I feel no sympathy for the BBC as most of this money appears to be spent hiding behind its ‘artistic’ derogation. If they were more open then perhaps they would ultimately get fewer questions. Also if the do the maths it appears the entire BBC FoI team could be funded every year from about seven weeks of Jonathan Ross’ salary. If you read further down I think that I may be the anonymous journalist in the Top 10 of people making FoI requests to the Beeb. I say ‘name and shame’ me.
The demands of complying with the Freedom of Information Act have cost the BBC more than £3m since the act was introduced in 2005, according to figures obtained through an FOI request by the Guardian.
FoI requests to the BBC have risen since 2005, from 971 in the first year to 1,141 to the end of July this year. The act has led to a number of newspaper revelations, including disclosures about the salaries and expenses of senior BBC executives, which the corporation published in June, partly because of the large number of requests on the subject and the cost of processing them.
The questions have include a breakdown of the number of English presenters appearing in the BBC’s Scottish programmes or the number of times a wheelchair user has appeared on the BBC show Bargain Hunt in the last 18 months.
In 2008/9, staff costs for the BBC’s Information Policy and Compliance team –whose main job is to supply the public with information under the Act – were £614,000 with a further £22,000 for costs including accommodation and telephony and £42,000 legal costs.
This compares with a total of £648,000 total costs for 2007/8 and £655,000 for 2006/7. In 2005/6 the costs were £683,000 while 2004/5 the cost was £495,000. This means that in total the cost of the IPC has been £3.16m since 2004/5.
The BBC has insisted that the IPC team “have other responsibilities” which include overseeing the BBC’s policies on data protection.
However, according to a senior BBC source the bulk of the IPC’s work is taken up with meeting the demands of the Act.
“The vast majority of IPC work is taken up with FoI and they mainly collate the information,” said the source.
“These costs also don’t cover all the work of the individual departments, some of whom have people working all the time collating information. Sometimes there are stacks and stacks of paper that have to go out to requestees which is very time consuming.”
An unnamed Times journalist has topped the list of the most overall requests with a Mail on Sunday journalist being the second most regular requester of information under the Act which was introduced by Tony Blair’s government with the intention of opening up public bodies to wider public scrutiny.
Other requesters in the top 10 include a freelance journalist, members of the public and a Sunday Times journalist in seventh place and a Sun journalist in 10th place. The BBC has declined to name the individuals concerned.
Questions asked of the BBC include supplying “correspondence relating to the estate of Lawrence Olivier and the Olivier Awards” and the number of Scottish, English and ethnic presenters who appear on Scottish TV and radio and the number of English, Scottish and ethnic presenters are there on English TV and radio. One question also asked how many times a wheelchair user had appeared in Bargain Hunt.
“We are happy to comply with FOI but it could be argued that this time and money could be spent on programmes,” added the source.
However the act has seen a number of newspaper revelations that may not otherwise have appeared.
These include the disclosures about the salaries of senior BBC staff and their expenses which the Corporation revealed in bulk earlier this summer due to the large number of requests on the subject.
Revelations included the hiring of a Cessna jet by director general Mark Thompson to make an emergency return from holiday in 2004 and his purchase of a £99.99 bottle of Krug Grande Cuvée champagne as an 80th birthday present for Bruce Forsyth in February last year.
The BBC has also promised to publish the expenses of Thompson and the other eight members of the BBC executive board, as well as the corporation’s non-executive directors, every six months in order to cut the staff time and money spent on dealing with FOI requests.
Posted on September 10th, 2009 No comments
The subject of so-called meta-requests (a request about how an earlier request was dealt with) has been one of my pet subjects after being found ensnarled in a saga over one such question with the Ministry of Justice.
My case is still rumbling on, after being bounced back by the High Court, although the MoJ has now provided me with two huge files of papers which I am working my way through.
Not to be outdone the Scots have also managed to get themselves embroiled in such a dispute over a request – and just like the decision south of the border the Scottish Information Commissioner has ruled against a blanket ban on such requests.
In Scotland the process began in August 2008 when Mr David Rule made a request to the Scottish Ministers for information. He was provided with an answer in October 2008.
Mr Rule then put in a request asking for a copy of the report that had been prepared by officials who had been responsible for putting together the response to his original question.
This was refused on the basis that the information was subject to S.30 of the Scottish FoI Act which mirrors S.36 (Prejudice of public affairs) in England.
When the case went before the Scottish Information Commissioner the Ministers plea for non-disclosure was that officials would be less likely to give “free and frank” advice if they knew in the future it would be made public.
However, the Commissioner ruled that the exemption did not apply to the report and so did not even go on to consider the public interest question.
He stated in his ruling that: “The Commissioner looks for authorities to demonstrate a real risk or likelihood that actual harm will occur at some time in the near (certainly the foreseeable) future, not simply that harm is a remote possibility.
“Also, the harm in question should take the form of substantial inhibition from expressing advice and/or views in as free and frank a manner as would be the case if disclosure could not be expected to follow. The word “substantial” is important here: the degree to which a person will or is likely to be inhibited in expressing themselves has to be of some real and demonstrable significance.”
Clearly the Commissioner is saying that the bar is set high for this exemption and in this case the Ministers didn’t really get anywhere near close to it.
The Decision Notice goes on to say: “The Commissioner does not accept that disclosure of this information would prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.
“The prejudice envisaged, which entails the discontinuance of the production of such written reports to be replaced by oral feedback instead is not in the Commissioner’s view justified by disclosure and therefore should not be regarded as inevitable or likely.
“Any sensible reading of the report would show that it is a thorough and well-written account. Far from containing trenchant criticism it is largely factual and does not apportion blame but indicates where improvements can be made. Disclosure would not be likely to affect the nature or tenor of such a report, which shows the Ministers taking their freedom of information responsibilities seriously and would not justify the discontinuance of the production of such a report. The avoidance of such prejudice is entirely within the control of Ministers through the management of their officials.”
So the conclusion is that meta-requests are NOT automatically exempt from disclosure and any reports or correspondence on how an authority came to make a decision in relation to a Freedom of Information request can be disclosed.
But the key element here is that the meta-request has to be handled independently of the first request and it may be there is exempt information – but it all depends on the specifics of the case – north or south of the border.
You can find the decision notice [here] .