Posted on February 26th, 2010 3 comments
An interesting decision has been published from the Tribunal giving more insight into how it approaches the question “personal information”.
In this latest case the Tribunal has overturned the Commissioner’s initial decision that the personal information could be kept secret.
It has now ordered the General Medical Council to release documents about a doctor who sat on its Fitness to Practice Committee and got into hot water over his links to the controversial Church of Scientology.
The Tribunal clearly spelled out the main issue in the case when it said:: “There is an inherent tension between the objective of freedom of information and the objective of protecting personal data”.
Indeed the issue of how the Data Protection Act and the Freedom of Information Act co-exist is something that will keep academics and lawyers busy for years. Freedom of Information gives you a right to have information while the Data Protection Act is a law to stop people giving that information away.
Ultimately it would appear that a judgement has to be made when a FoI request comes in to decide if the rights of the requestor override the rights of the data subject.
The three point test that appears to have been adopted is:
i. There must be a legitimate public interest in disclosure;
ii. The disclosure must be necessary to meet the public interest; and
iii. The disclosure must not cause unwarranted harm to the interests of the individual.
In this case the Tribunal ruled that the public interest was more powerful that the rights of the individual and have ordered disclosure.
However, the case is still subject to an appeal and so the actual information on which the decision was made have not yet been released.
Here is a link to the Tribunal’s decision [Ref: EA/2009/0063].
From a personal point of view I am cheered by the decision as it would seem to strengthen my arguments into the release of the performance objectives of the chief executive of London 2012. If anybody knows how I could contact the applicant, William Thackeray, I’d be very grateful.
UPDATE: 27.2.10: All the details of this appeal are on WhatDoTheyKnow. Apparently it is the first case from WDTK to reach the Tribunal. Congratulations to both Mr Thackeray and WDTK. Here is a link to the history of the case [link]
Posted on February 25th, 2010 No comments
The topic of when simple statistical data becomes personal data has always been a topic that has caused a great deal of head scratching.
If I ask how many people in East Sussex are obese nobody would consider that to be personal data and subject to a S.40 exemption. However, if you were to ask how many adult males living at my address were obese and the answer was to be one – you’d have violated my privacy, breached the Data Protection Act and ridden rough shod across S.40. Anyhow, just for the record, I’d like to state that I’m just slightly overweight!
But nobody has really said how and when that numerical data becomes personal data. The topic has come before the Tribunal and the Commissioner before and the issue has still not really been resolved (I’ve put a series of links at the end to judgements which have focused on this point).
However, the latest judgement from the offices of the Information Commissioner [Ref: FS50161581] relates to the Greater Manchester Police (GMP). It received a request wanting to know the number of burglaries that took place in Honeysuckle Close and Tunshill Road.
To my mind the key point in this question was the number of houses in each street. In Tunshill Road there are 83 but in Honeysuckle Close there are just 13.
GMP refused to release the data saying it was subject to S.31 (law enforcement) as well as S.40 (personal information).
The S.31 argument was quickly dispensed with by the Commissioner despite some interesting arguments by GMP which included the fact that disclosure of the information might lead to more burglaries as criminals would expect the stolen property to be replaced with new goods courtesy of the insurance companies.
But the S.31 plea from GMP was rejected by the Commissioner who said “this would not present a real and significant impact on the ability of the police to prevent crime and to apprehend offenders”.
On to S.40 and the Commissioner admitted the number of properties and the number of burglaries were small in number but added “I am not persuaded that, taken together, they would allow for the identification of any individual.”
The Commissioner touches on the subject of “crime maps”, a new politically-driven idea that will allow people to look up on the internet to see what sort of crimes have been committed and where. However, he says that just because a police force picks a certain parameters for the reporting of each crime type the Commissioner, when considering individual Freedom of Information requests, does not have to be bound by the police approach.
As it would appear that 13 is considered a number not too low to allow a S.40 exemption to be applied. The key question is when does the number become too low (see my earlier post on this topic ‘How Low Can You Go?’) and would the level change if we were talking about more sensitive personal detail.
To test drive this ruling I’m asking on whatdotheyknow how many burglaries have taken place each year in Connaught Square, Westminster, to see if the arrival of the Blairs after he left No.10 and the associated police presence had any effect on the number of house raids [link].
Common Service Agency v Scottish Information Commissioner  UKHL 47, link
Department of Health v Information Commissioner & Pro-Life Alliance [EA/2008/0074], link
Sussex Police v Information Commissioner [EA/2009/0013], link
Posted on February 18th, 2010 No comments
The UK Border Agency has had its knuckles rapped by the Information Commissioner after it took almost a year to respond to a Freedom of Information question.
A request was made on the whatdotheyknow website about information relating to the decision to ban Dutch MP Geert Wilders from entering the UK.
Mr Wilders had caused controversy in that he was responsible for producing a film called Fitna, branded by many as anti-muslim.
Because of these views the British Government decided he should not be allowed into the country. Eventually he was allowed in and showed his film at the House of Lords.
More background on Mr Wilders and his film can be found [here].
The request for information was made to the UK Border Agency on February 12, 2009 and they acknowledged the request five days later. In March, July, August and September there was some communication between the parties but the question was still not answered.
Eventually in on September 30 the applicant got in touch with the Commissioner’s office and on October 30 the Commissioner communicated with the UK Borders Agency, who said “unfortunately a response to this case has not yet been issued”.
The UK Border Agency said it was in the process of answering but was trying to assess a possible S.36 (Prejudice to the effective conduct of public affairs) exemption to some of the information.
Finally the Information Commissioner counted out the UK Border Agency when it still had not not replied by December.
A Decision Notice was issued dated January 7, 2010 [link] and finally the UK Border Agency did reply, although it decided after all that time to exempt most of the information under S.21 (Available by another means), S.27 (International Relations), S.36 (Prejudice to effective conduct of public affairs) and S.40 (Personal Information).
You can see the whole history of the request posted on whatdotheyknow [link] and for those of you interested there is a news clipping on Mr Wilders below.
Posted on February 18th, 2010 No comments
For those of you keeping tabs on my progression to the Tribunal I have an update for you.
Firstly the Information Commissioner has now put up a copy of his Decision Notice [link].
And the Commissioner has also replied to my request to the Tribunal for an appeal [ICO Response].
For those of you unfamiliar with the case I had asked for details of the bonus payments made to the chief executive and the board of directors of the Olympic Development Authority (ODA). My request was rejected by the Commissioner on the basis that it was subject to the S.40 exemption.
Posted on February 12th, 2010 No comments
As a journalist what I really like about the Freedom of Information Act is that behind every Decision Notice there is a story – from MPs expenses and the legal advice on the war in Iraq, right down to neighbourhood disputes.
A recent ruling from the Information Tribunal is a case in point, which although some might say is very much a “local” issue, it throws up legal points that may well have bearing in much more high profile cases.
So this decision takes us to the former pit village of Ferryhill, in County Durham. Population 10,000 and a Town Council that although Labour Party dominated has been infiltrated in recent years by members from a new party called FAIR (Ferryhill Association for Independent Representation).
One of FAIR’s gripes was the fact that the local council tax had risen sharply in recent years and much of this it claimed was down to sharp wage rises behind the doors of the Town Hall.
The Council’s chief officer Jamie Corrigan was singled out by FAIR as the main culprit and a Freedom of Information request was sent to the council to ask how much he was paid.
In Ferryhill things were about to get personal as the person sending in the request was FAIR councillor Brian Gibson and the person on the receiving end was – yes you’ve guessed it Jamie Corrigan.
A long story can be cut down to say that Mr Corrigan’s salary band has been revealed as being between 54k to 62k. But that’s not enough for FAIR. They want to know to know exactly what he is being paid and how much of that is made up with the overtime, it is claimed he amasses by spending extra time in the office dealing with Freedom of Information requests from Mr Gibson.
So when the matter came before the Information Tribunal they had to deal with what is becoming something of an old chestnut – would it be a breach of S.40 (Personal Information) to reveal Mr Corrigan’s exact salary and overtime payments.
The simple answer is that the Tribunal declared that it would be a breach of S.40. in that Mr Corrigan’s rights under the Data Protection Act would be infringed.
I spoke to Mr Gibson today and he said: “I’m disappointed with the judgement. I could appeal but I don’t think I will.
“I’m a councillor. How can I set budgets when I don’t even know what the council staff are earning? This is public funds, why the secrecy?”
I have to say that I have some sympathy with Mr Gibson. If elected on a platform to establish if the Town Hall was feathering its own nest it can certainly be claimed that there is a legitimate public interest.
Where the claim falls down of course is would the disclosure cause “unwarranted harm” to the individual, and is that outweighed by the public interest. Sadly for Mr Gibson the Tribunal decided it wasn’t. Is this bad news for my hopes of squeezing the details of the Olympic Delivery Authorities £250,000 bonus criteria? I don’t think so really.
For those of you who would like to read the Tribunal’s decision the link is [here].
Posted on February 8th, 2010 No comments
For those of you who enjoy the performances of foul-mouthed fictional political advisor Malcolm Tucker in “The Thick of It” comes a decision notice which may show that nothing is quite as weird as the real thing.
The Information Commissioner and the Department for Culture Media and Sport (DCMS) have got into a conflict about releasing internal e-mails which were written by a special adviser.
DCMS official tried to argue a special case for their special advisers saying they work under pressure and the resultant “frank” language sometimes rises to the surface.
Personally I’m all in favour of a bit of “Frankness” and think Government should not be afraid of telling us what it really thinks.
The original FoI question which sparked the whole issue was submitted in March 2007 and asked for “information concerning the takeover of Chelsea Football Club by Russian interests in 2003”.
DCMS officials turned the initial request down and by December 2007 had finally upheld that refusal following an internal review.
The applicant made an immediate complaint to the Information Commissioner and in March 2008 a limited amount of information was released by the DCMS.
But the e-mail exchanges were still withheld from the applicant with the DCMS saying they were covered by S.36. (Prejudice to the effective conduct of public affairs).
DCMS stated that the e-mails from the special adviser included some “highly contentious and subjective information”, which if released would be likely to damage day to day relations with stakeholders in football. It said “the consequence of release would be likely to result in limiting the provision and the recording of advice by special advisers”.
But the Commissioner said he had “concerns” that S.36 was being used to withhold potentially embarrassing information, rather than because it was part of a free and frank exchange of views.
However, the Commissioner ruled the e-mails were covered by S.36, although the issue was “finely balanced”.
When considering the public interest argument the DCMS that “as special advisers worked within a high pressure/high workload environment, they generally needed to absorb information and provide deliberation and communications very quickly. At times, this may have meant arguments were put bluntly in a manner that would never be considered appropriate if the information were being prepared for publication.”
But the Commissioner rejects the DCMS pleas for leniency in regard to its Malcolm Tuckers. The ruling says: “The Commissioner is not entirely persuaded by DCMS’s comments and arguments specifically concerning special advisers. He notes the role as being one where both pressure and workload are high, and deliberation is speedy and potentially less guarded as a result. However DCMS appears to be advancing what amounts to a special case for special advisers……when in fact there is no such blanket ban.”
On the general topic of e-mails the Commissioner also made an interesting point rejecting any claims that the electronic medium should somehow be treated differently to traditional letters.
The Commissioner said: “the Commissioner has difficulty in accepting the argument advanced by DCMS that emails should be regarded as an informal medium, to which, by implication, lesser standards apply. Information contained in an email does not have any less value or standing than that contained in other media. Emails are used routinely to form part of the official record. Those using this medium to record information should at all times be aware that an email can form part of an official record.”
The conclusion of the case was that the public interest favoured disclosure of the e-mails, which the Commissioner says are “indeed frank”.
He said it was a finely balanced case but “given the position of football in British culture and the high profile position of Chelsea FC, there is a strong public interest in transparency and openness in promoting a better understanding both of the Government’s stance of foreign ownership and how that was arrived at.”
The DCMS was also given a public telling-off for taking more than 150 working days to conclude the applicant’s request for an internal review.
I couldn’t help myself either but below are some of Malcolm Tucker’s finest foul-mouthed tirades. The journalist in me can only hope that life imitates art and these e-mails say something quite unpleasant at the prospect of the Russians running our football teams.
If you are offended, upset, disturbed or feel midly unpleasant when listening to people swear do NOT click on the link below.
Posted on February 4th, 2010 3 comments
I’ve been in business as DataNews for more than a year now and have had a number of cases filter through the office of the Information Commissioner.
Some I’ve won and a couple I have lost, but up until Christmas there was not a case that I was prepared to go to the barricades for and pursue through to the Information Tribunal.
Well, I have now lodged an appeal with the new Tribunal office in relation to a complaint I made about the way my FoI request was dealt with by the Olympic Delivery Authority (ODA).
The ODA is the organisation tasked with spending £9billion of public money building the site for the 2012 Olympics in Stratford, north-east London.
I should say at this point that I am NOT anti-sport or anti-Olympics and have no grudge against the ODA, indeed I grew up a javelin’s throw away from the site of the 2012 games.
What gets my goat in this particular case is the privacy that is afforded to some of the country’s highest paid public servants.
David Higgins, the Aussie Chief Executive of the ODA, has cost the organisation more than £1million in salary and bonus payments in just the last two years.
His basic salary in 07/08 was £373k plus a tasty £205k bonus and in 08/09 it was £384k + £209k bonus.
What I wanted to know was the criteria for paying Mr Higgins these huge bonus payments – especially given their huge size and the fact that the ODA cannot be accurately assessed as being a success or not until the opening ceremony of the Games.
My request asked for the criteria on which his bonus payment was assessed, whether he qualified for 100% of his potential bonus payment and if he didn’t qualify for the whole lot which areas he was deemed as coming up short in. My argument is that this is no longer personal information, as it might well be for an employee further down the food chain.
In the rarefied atmosphere of the ODA boardroom we the public deserve and have the right to know what he is being paid a bonus for and more importantly what he is NOT being paid a bonus for.
The Commissioner looked at the arguments and ruled against me saying that the information I wanted was still subject to a S.40 (Personal Information) exemption as to supply me with the figures would be a breach of the Data Protection Act.
I also asked for similar data in relation to Godric Smith, a former resident of Prime Minister Blair’s press office and now the £192,000 + £33 bonus Head of Communications for the ODA. My request for his bonus criteria were also refused on the same basis, although Mr Smith wrote the Commissioner a letter stating how the release of his bonus details would “cause unwarranted interference”.
So, I have now embarked upon a battle to see if I can overturn the Commissioner’s decision and the ODA secrecy wishes at the Tribunal.
I think this is a key point because if these sort of details cannot be extracted from people in positions like Higgins and Smith then we might as well wave the white flag and go home.
For some reason the Commissioner has not (I can’t find it) put the decision notice on the website so at the moment I cannot provide people with a link to the document. When it does go up there I’ll post it up. It is Ref: FS50259954
Also I’ll be putting in a request to the Commissioner asking for a copy of Godric Smith’s letter. See the link [here].
As I will probably be up against somebody from 11KBW being paid thousands to keep the information secret I’d be grateful for any help or advice.
NOTE: Apologies for not updating the site much over Christmas/New Year. Pressure of work. But I hope to get back into the swing of things again now.