Posted on January 17th, 2012 No comments
You can’t fail to have noticed that the issue of maritime safety has shot up the news agenda recently.
The apparently cack-handed way the ship was driven into the rocks and its subsequent sinking give a whole new meaning to the term “European bail-out”. Women, children and nationals from countries without a AAA rating abandon ship first.
But the subject brings me back to an interesting squabble I’ve managed to get myself into with the Department of Transport.
At the back end of last year I asked the following question: “Please could you provide me with a copy of all the SAFA Ramp Inspection Reports you hold dated from 1.1.10 to the present date where any Class 3 (major influence on safety) action has been recorded.”
For those of you not familiar with the plane inspection regime my understanding is that official can swoop on aircraft at any time and then fill in a form about its airworthiness.
As you can see from my question I just want the ones where there has been a Class 3 finding on the basis that if the experts say it has a problem which is a major influence on safety, that is in the public interest.
But my request has been turned down. See the letter here. plane…………. The Department of Transport relied on S.27 (International Relations) and S.30 and S.31. All of which as we know are subject to the public interest test. Yet it is thought that the knowledge of which planes have major safety defects is best kept from us.
This would be an interesting enough case on its own if it were not for the fact that I believe the Department of Transport then took aim at their own feet and fired off a volley of shots.
While trawling the internet I found a spreadsheet that had been provided to an MP that gave details of all inspections that had been carried out by an agency of the Department of Transport on ships.
I then asked a follow up question saying could I have all the detailed report sheets on those ships which when inspected were deemed the most dangerous, and were banned from setting sail until the defects were corrected.
On this occasion there were no fears that the reports might adversely affect our relationships with foreign nations or that it would bring the whole inspection regime collapsing around our ears. Here are two of the reports I was provided with of ships that were too dangerous to be allowed to leave port in October last year.
By the incredible power of the internet you can even now see where both ships are. When I last looked Adinath One was near Malta and Ocean Bridge was somehwere off the coast of West Africa. But the main thing, I suppose is that they are both on the sea rather than under it.
Anyhow, I’m looking forward to seeing how the Department of Transport can justify treating plane safety one way and ship safety completely differently. I’ll keep you posted.
Posted on 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 November 26th, 2009 No comments
The Information Tribunal has overturned a decision of the Commissioner and criticised the ICO’s initial assessment of the case.
The appeal relates to a case about a previously secret document held by Transport for London, which staff could refer to when considering whether to waive a Congestion Charge penalty fare.
Initially the Information Commissioner ruled the document should remain secret stating it was subject to the S.31 (Law Enforcement) exemption.
However, this decision was overturned at the Tribunal at which the judgement stated: “…the Commissioner’s analysis of the position was unfortunately insufficiently rigorous”.
The legal aspect of this case revolved around the age old subject of “prejudice” and “evidence” in relation to S.31.
The Commissioner accepted Transport for London’s case that the release of the document was likely to prejudice its enforcement functions – in that there were details in the booklet that people looking to evade the charge might be able to use to their benefit.
But the Tribunal were not convinced by the argument and stated: “Does the evidence establish the existence of such a risk?”
When the Tribunal assessed the evidence it said: “Indeed our impression was that disclosure of the document to the public might positively assist (rather than prejudice) the whole process by making it clear to some would-be evaders that certain representations would have no prospect of success.”
Indeed the Tribunal were so clear there was no “evidence” that they ruled the exemption was not even engaged and so didn’t go on to consider the public interest test.
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 4th, 2009 No comments
A row over terrorism and airport parking tickets has had to be settled by the Information Commissioner.
The Metropolitan Police force refused to reveal if it held records on the number of cars ticketed or towed away from a road at Heathrow Airport.
The police claimed that to reveal if it held the information could be useful to terrorists. But the Information Commissioner has now ruled against the Met and has told the force it has to say if it holds the records.
It is still open to the Met to try to refuse revealing the information – but now it has to at least admit if it holds the data – and can no longer refuse to confirm or deny whether it holds it.
In the ruling the Met claimed it was free to neither confirm or deny it held the information because of S.31 (Law Enforcement).
The decision notice said: “the public authority stated its stance related to the pattern of enforcement that it believed would be revealed through confirmation or denial.
“It believed that any site where it was revealed that police monitoring was not regular would become a more attractive site to terrorists planning attacks using vehicles.
“The argument of the public authority is that the pattern of police monitoring and traffic enforcement that would be revealed through this and other future, similar requests would provide information that would assist in the planning of terrorist attacks.”
Giving his decision the Information Commissioner said: “The Commissioner does not accept that confirmation or denial in response to this request would reveal information about police monitoring or enforcement that would be prejudicial in the way that the public authority has suggested.
“Neither does the Commissioner accept that differing confirmation or denial responses to a number of similar requests made about other areas close to airports would reveal any differences in the policing of these areas. This means that the Commissioner also does not accept that confirmation or denial would provide information of use to terrorists.”
NOTE: This is an interesting decision in that it has many similarities to the on-going rows about site specific speed camera data. In the case of speed cameras public authorities never, to my knowledge, opted for the ‘neither confirm or deny’ strategy but instead focused on S.31 and S.38 (health and safety).
But the arguments used by the police in this case are very similar in that to give out specific data for one location could lead to assumptions being made about other locations. So that if you work out where resources are being deployed in strength you can work out where the weaknesses in the system are.
However, it would appear that the applicant for this information will be faced with a long haul for the information. I imagine the Met will now exempt the information under S.31 and if the applicant can be bothered it will take its place again in the Commissioner’s queue of unresolved cases.
I have written about ‘neither confirm or deny’ previously. [Are you free to say nothing?]
You can see the decision notice here. [link]
Posted on July 28th, 2009 No comments
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 – 10th/11th 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)
Department for Business, Enterprise and Regulatory Reform (BERR) – 22nd/23rd 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 – 9th/10th 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)
Civil Aviation Authority (CAA) – 22nd/23rd 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)
Higher Education Funding Council for England (HEFCE) – 16th 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
University of Central Lancashire – 3rd/4th and 5th 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]Decisions BERR, CAA, department of culture media and sport, EDO, HEFCE, homeopathy, information tribunal, royal mail, S.21 (Available by another means), S.31 (Law Enforcement), s.35 (Formulation of Government policy), S.36 (Prejudice to effective conduct of Public Affairs), S.41 (Information Provided in Confidence), s.43 (Commercial Interests), university of Central Lancashire
Posted on July 13th, 2009 1 comment
The saga of the so-called meta-request goes on….and on…. and on.
In January 2007 I asked a question of the Home Office about the way it had been treating my requests as I had evidence that it dealt with mine differently from the general public. This is a breach of its responsibilities under the Freedom of Information Act in that it should be “applicant blind” when it deals with requests.
My request was refused, I appealed and the appeal was thrown out as the information was deemed to be covered by Section 36 (Prejudice to the effect conduct of public affairs).
I took the case to the Information Commissioner who ruled in my favour and then the Home Office appealed against that decision, linked up with the Ministry of Justice, and took the case to the Information Tribunal.
At the Tribunal the Government tried to argue that meta-requests – the process where somebody asks questions about the way their question has been handled – were in some way an abuse of process.
This argument was rejected by the Tribunal and I sat at home waiting for the 1,250page bundle of documents to arrive in the post.
But that wasn’t the end of the matter and the Government appealed the decision to the High Court where a hearing took place earlier this year.
That decision has now been announced and again it was ruled that meta-requests are NOT an abuse of process and should be dealt with like any other Freedom of Information application.
However, there is one big BUT. The High Court has allowed the Home Office the opportunity to go through the material to see if any other exemptions apply to it. For good measure it is now claimed that although S.36 does not apply to it the Tribunal will have to rule if section 31 (law enforcement), section 35 (formulation of government policy), section 40 (personal information), section 42 (legal professional privilege), and section 43 (commercial interests).
So to summarise, two and a half years after I asked the question the Home Office has now been forced to do what it should have done all along – look at the question and see if it could and should answer it. Because of it’s ineptitude it has wasted hundreds of hours and thousands of pounds, essentially because it thought it shouldn’t have to answer my question.
Posted on July 9th, 2009 No comments
The Metropolitan Police Service (MPS) have been given a public rebuke from the Information Commissioner’s Office for taking 100 days to carry out an internal review relating to a request concerning Cherie Blair.
The applicant had asked for information the MPS held on an incident when the former Prime Minister’s wife turned up at Heathrow without her passport and then contacted No.10 to get the document couriered to the airport. (link)
Initially the MPS had refused the request for information claiming it was covered by S.24 (National Security), S.31 (Law enforcement) and S.38 (Health and Safety).
But after the Information Commissioner got involved the MPS admitted that the limited information it did hold – a short press statement – was not covered by the exemptions.
However, the Commissioner explored the case and found the complainant had asked the MPS for an internal review on 16 March 2006 and had to wait more than five months, until 21 August 2006 for the MPS to confirm its refusal.
In the decision notice the MPS is taken to task for:
- Belatedly finding information that should have been disclosed,
- Only undertaking a thorough search for information after the intervention of the Commissioner,
- Taking 90 days to issue its initial refusal notice,
- Incorrectly stating that the information was covered by three exemptions, and failing to state which subsections of the exemptions it thought were applicable,
- Taking over a 100 days to carry out an internal review which upheld its own incorrect view, which was later retracted after the intervention of the Commissioner.
The Information Commissioner said in his decision notice that the MPS breached Section 1, Section 10 and Section 17 of the Act.
He said: “The Commissioner remains concerned that it took over 100 working days for an internal review to be completed.”