Help!

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.

For your information the question I asked was an update to a Parliamentary Written Answer about drug-addicted babies [Drug dependent babies] and [Drug dependent mothers]

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.

Naked Brooke Shields – Shameless attempt to increase my hits!

Inappropriate motorbiking gear. The naked Brooke Shields' picture was replaced by the Tate Modern with this one.

Hollywood starlet Brooke Shields naked – if the start to this post doesn’t shoot me up the google rankings nothing will.

The full frontal image of Miss Shields standing in the bath naked, her face turned provocatively to the camera, has one deeply unsettling quality to it – the Ms Shields in the picture is only ten-years-old.

For centuries rich people and ‘clever’ people, and sometimes rich and ‘clever’ people have tried to justify pornography as art. When they do we have the makings of a controversy.  

That’s what happened at the Tate Modern when it put on display its image of a naked ten-year-old Brooke Shields.

The Tate, which has previously paid thousands of pounds for paintings constructed with elephant dung, took advice from lawyers about whether it should allow the Shields image to go on display.

One presumes that armed with this advice the photograph went on display only to be taken down when the Metropolitan Police visited the exhibition and warned it could be breaking obscenity laws.

Let me now nail my colours to the mast. I have seen the photo and after a momentary gaze at it you know that regardless of any laws it is just wrong.

When you then find out that, according to the Guardian, the image appeared in Playboy magazine with the full knowledge of Ms Shield’s mother it does nothing to quell any doubts you might have about the picture.

If somebody took a picture of a child like that and went to Boots to have them developed, you would expected the shop assistant to get straight on the phone to the police and the photographer arrested and jailed.

In all this preamble you may be wondering why this is appearing on my blog, which is ostensibly about Freedom of Information.

Well I asked for the legal advice supplied to the gallery by Withers LLP [link] on the assumption that they must have thought it was ok for the photograph to be displayed or it would never have gone on show.

Why do I think I should see the advice from the lawyers and break the sanctity of the S.42 (Legal Professional Privilege) exemption? Well as I see it there are two possible scenarios.

Firstly the lawyers told the Tate Modern not to put the picture on display but the gallery went ahead with it, risking prosecution knowing the image was potentially obscene. In which case there is a clear public interest in knowing that the state funding museum is run by people prepared to wilfully break our obscenity laws.

Secondly the lawyers told the Tate Modern the image was fine to display and shouldn’t bring any attention from the police. If this is the case then there is a clear public interest in knowing exactly what this erroneous advice was, as it was paid for with taxpayers money.

Of course there is a third possibility in that the advice from the lawyers was inconclusive (which would not really a big surprise). In which case I still say there is a clear public interest in establishing what the advice was, when it is taxpayers money being spent on it.

As an aside I don’t really think it takes swanky city lawyers to pontificate on whether this image should have been shown in the gallery or not – if you look at it you know it’s wrong and I challenge anybody to say different.

Well my request for the information was turned down by the Tate Modern. I appealed to the Information Commissioner, who also ruled against me [decision notice].

I then appealed to the Tribunal, but my appeal was out of time by a few days. The Tribunal allowed my appeal but the Information Commissioner appealed against me appealing out of time (confused!). The Tribunal then came down on my side and as we stand at the moment I am taking the Commissioner to a Tribunal over the matter.

WARNING: For those of you who want to see the image the head of Ms Shields, which cannot be considered indecent is on the Guardian site’s story of the controversy [here]. There is a website called iconic images which has the full picture which can be viewed (but don’t then come moaning to me) that you have been upset, revolted etc. It can be seen by clicking [here].

Olympics forced to reveal bonus details

Bonus payments. Nice if you get them.

I know I have been away for too long. I have ignored those of you with empty lives like me who hanker for any snippet of FoI related news or gossip.

Well now I’m back, I promise. This blog will get bigger and better. I was given a coffee-maker for Christmas and if I have to consume a double espresso at midnight to write this blog – then that’s what I’ll do.

Apart from the normal asking questions, getting answers, writing news stories I am becoming all too familiar with the workings of the Information Tribunal.

I’ll start today off with my experience of bringing my own appeal against the Information Commissioner and the Olympic Delivery Authority.

This case has rumbled on for months and a date was eventually set for November 10. On the day in question I arrived in London with all my papers but realised I was lacking one essential item – a remembrance poppy.

The horror of being the only person in the room without a poppy so consumed me that I began approaching strangers in the street asking to buy their one – and was refused. Eventually I got one from the Nationwide Building Society and was ready for legal war.

The key to the case was that I wanted to know how much the executive of the Olympic Delivery Authority (ODA) could have been paid as a maximum bonus, and what performance criteria determine those payments.

I’ve written about this case before [here and here] so I will not go over it in too much detail for those of you who are already familiar with it.

In summary I represented myself, the ODA had Mr Pitt-Payne QC of Panopticon fame and the Information Commissioner had barrister Joanne Clements. They brought along about 10 paper shufflers and I took my mum and dad, who I think are curious as to how their son makes a living.

I crossed swords with Sir Roy McNulty and then the ODA’s Aussie chief executive David Higgins (I should have mentioned the cricket).

Well the upshot of the whole thing is that I think if we continue with the Olympic theme I can award myself a bronze or silver medal. Gold I’m afraid I can’t lay claim to as the Tribunal decision was that the objectives that underpin the bonus payment should remain secret.

However, my appeal was upheld as it was stated that the ODA and the Commissioner should have allowed me to know what the maximum bonus was that the executives could have been paid.

My argument is that bonus payments are pretty meaningless to the general public unless we can know how much of their bonus they were awarded. A chief executive who gets a bonus of £50,000 might be doing a good job, but if he could have got £500,000 if his performance had been better, I’d say he was pretty poor.

Anyhow, expect questions on executives’ bonus payments in the near future. There is a link [here] to the decision of the Tribunal and [here] to a revised question for the ODA.

Next week more of my Tribunal skirmishes with the BBC, the Royal Mail and the Tate Modern over a nude picture of Brooke Shields.

Olympic Tribunal: Latest

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.

Awaiting a Tribunal with Godric

Godric Smith. Paid £225,000 last year. Should we know how good a job he is doing as Communications boss at the ODA?

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.

Busy autumn ahead for Information Tribunal

A look at the cases in the pipeline for the Information Tribunal shows it is going to be a busy autumn for the court this year.

Hopefully the rulings should put some markers in the sand about what is and is not allowed to be exempted from disclosure under the Act.

The full list of cases has just been updated and can be found [here], but I’ve highlighted a few that I think are potentially the most interesting.

Royal Mail

What is the Post Office's management consultancy bill?

Royal Mail – 10^th/11^th Sept – Here the Information Commissioner ruled the amount spent on management consultants by the Post Office over the last five years should be disclosed despite protestations that the statistics should be covered by S.43 (Commercial Interests). Interesting as I can’t think many FoI officers would agree with the Royal Mail’s position on this one. The Commissioner decision was that the information was not covered by S.43 and didn’t even go on to examine the public interest test IF the exemption had been in play. [FS 50178376]

Department for Business, Enterprise and Regulatory Reform (BERR)

Protestors at the EDO factory

 

 

Department for Business, Enterprise and Regulatory Reform (BERR) – 22^nd/23^rd Sept – This could be a lively hearing in that it relates to the export licences granted to a company called EDO MBM Technology Ltd. This Brighton-based Aerospace Engineering Company, has been the subject of a campaign by local pressure groups who alleged that it had supplied Israel with military aircraft components. There have been a number of demonstrations and protests at the firm’s headquarters. This appeal relates to an attempt by an applicant to get hold of the export licences granted to EDO. The Commissioner agreed with BERR’s ruling on the matter that the information was covered by S.41 (Information Provided in Confidence). [FS 50180838]

Department for Culture, Media and Sport

Department for Culture, Media and Sport – 9^th/10^th Nov – This relates to internal Government memos on its casino policy, which changed a number of times. Here the Information Commissioner rejected arguments that documents should not be disclosed because the were covered by S.35 (Formulation of Government Policy) and S.43 (Commercial Interests). [FS 50160256]

Civil Aviation Authority (CAA)

The CAA has responsibility for ensuring air safety in the UK

Civil Aviation Authority (CAA) – 22^nd/23^rd October – I have written about this case before [Flight of Fancy shot down by ICO] where the CAA is refusing to issue safety reports on a cargo airline. It has claimed a S.31 (law enforcement) exemption but the Information Commissioner kicked that argument into touch saying the CAA had not shown how releasing such documents would prejudice its affairs. [FS 50168527]

Higher Education Funding Council for England (HEFCE)

The student accommodation didn't quite look like the brochure pictures

Higher Education Funding Council for England (HEFCE) – 16^th November – In this case the HEFCE doesn’t want to disclose the database it holds on the make-up and quality of university buildings. It claims the information is covered by a S.41 (Information Provided in Confidence) exemption, but the Commissioner ruled against the authority. Again I have blogged on this case in the past [Uni database to be opened to public scrutiny] and noted the Commissioner ruled the information was not covered by the exemption as there would be no ‘detriment’ to the universities who supplied it. [FS 50188864]

University of Central Lancashire

A student preparing herself for the Homeopathy practical?

University of Central Lancashire – 3^rd/4^th and 5^th of November – Pack your healing crystals and make sure you sleep on lay lines as this one is all about the ‘science’ of homeopathy. This case was brought by real scientist David Colquhoun, professor of pharmacology at University College London, who wanted all the papers relating to its homeopathy course. The university refused claiming the info was covered by S.36 (Prejudice to effective conduct of Public Affairs), S41 (Information Provided in Confidence) S.43 (Commercial Interests) and 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. The Information Commissioner again rejected the University’s arguments and ordered the documents to be disclosed. The university has refused to back down and will now take its arguments to the druids’ court, sorry I mean the Tribunal. This is an interesting case in that it is at the focus of very public battles between so-called scientists and those that have been dubbed ‘bad-scientists’ in that they hold pseudo scientific beliefs. These arguments are now being hammered out in the libel courts and here at the Information Tribunal, which many would argue is not the proper use of these institutions. Again I have written on this topic before at [Details of “Bad Science” BSc to be revealed]. The Information Commissioner’s decision on the case can be found here [FS 50140374]

Abortion data Tribunal begins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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