Posted on October 28th, 2011 1 comment
What is in the public interest has always been something of a thorny issue, especially when it comes to its use in Freedom of Information.
Personally I say thank the Lords (because apparently it was the House of Lords which decided to put the public interest test into FoI) that we have this weapon to set about the Qualified exemptions.
At the moment I’m involved in two disputes over information at opposite ends of the spectrum, but both hinge on the public interest test.
The first involves the Cabinet Office and its refusal to reveal documents written by our ex Prime Minister Tony Blair that were sent to George Bush.
These notes are central to the Iraq inquiry, whose head Sir John Chilcot asked to make the documents public, and when this was refused said the decision was “disappointing”.
The crux of these documents is whether they confirm the belief among many people that Tony Blair gave his word to the US President that British troops would join the war, before Parliament voted on the issue.
You can see the history of this request at WhatDoTheyKnow [here], and I’ve blogged about this in the past [here]. The information has been denied me on the basis S.35 (formulation of Government policy), S.36 (prejudice to the effective conduct of public affairs) and S.27 (international relations).
Were our troops sent to war just because Blair had “promised”? Could there be a clearer public interest? The case is now in the hands of the Information Commissioner.
At the other end of the scale some of you may have been watching #EducatingEssex, a horrific fly-on-the-wall documentary about a school in Harlow.
I watch the show goggle-eyed at the way the show profiteers from seeing children taken into care, getting involved in scrapes with the police, getting pregnant, abusing teachers.
We are at the end of the series next week and ironically we have seen precious little educating of the Essex populous.
As a journalist I have to tread incredibly carefully if I do a story that identifies a child, particularly if it is something to do with their schooling – but this programme seems to have side-swerved the regulations in exchange for children grabbing their five minutes of fame. Responsible journalism? I think not.
So I wanted to know how much the documentary company paid the school for the privilege of being allowed into the school.
Surprise, surprise, they will not tell me. You can see the full response to my questions [Passmores1]. But they have applied the S.43 (commercial interests) exemption, and yes you’ve guessed it the public interest is not to disclose the amount.
Amazing that the public interest is in knowing which of his students are pregnant at 15, which of them get taken into care, which of them run away from home – but not how much the school got paid for selling off the pupils’ private lives for the amusement of viewers.
I’ve appealed this back to the headmaster Vic Goddard – a man who on the show seems to insist in empathising with errant schoolchildren by calling them “mate”. I suspect this case will run and run.
NOTE: Apologies for being away for so long.
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 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 December 11th, 2009 No comments
Somebody once said (and apologies to whoever dreamed up the analogy) that the use of the Government’s Freedom of Information veto was a little like losing one’s virginity.
They reasoned that the first time was a big deal preceded by a “will they, won’t they” debate.
But after they take the plunge every subsequent application of the veto is increasingly less significant than the first – under you end up spraying your vetos around like confetti.
Jack Straw has gone from virgin to slapper in the space of a year.
We watched him apparently agonise over the Iraq cabinet minutes for months as the case dragged through the Commissioner and then the Tribunal.
Eventually he issued his veto with a commentary that indicated this was an important decision, and a power that would only be used in special circumstances, blah, blah, blah.
Now what happens! He slaps out his veto before the case even gets to the Tribunal – to follow my slutty analogy, it’s the equivalent of not even waiting to get a room.
And what is the subject matter in question upon which the whole fabric of Government depends – some obscure minutes about the subject of devolution (which has now happened if you hadn’t noticed) that are 12 years old already.
No wonder the Information Commissioner Office was moved to issue a statement saying the Christopher Graham was: “concerned that the government may routinely use the veto whenever he orders the disclosure of the minutes of Cabinet proceedings, irrespective of the subject matter or age of the information.”
What would a visitor from outer space make of the Government’s application of its own Freedom of Information Act? On the day the Act helped to reveal a back bench MP spent £2 on a hamburger maker, that same legislation was used to deny us access to the decision making process behind one of the most momentous constitutional changes the country has seen.
They say you get the Government you deserve?
For those who would like a more erudite treaty on the Government’s veto I suggest you visit Martin Rosenbaum’s excellent blog [link] on the topic.
Those of you who fancy a bit of 80s nostalgia click below for Madonna’s take on events – I should warn people it ends with her writhing curiously around on the floor.
Posted on December 6th, 2009 No comments
The following article which I reproduce from the Economist makes interesting reading………
STRETCHING the law on the disclosure of public documents has been a competitive sport among civil servants ever since the Freedom of Information (FoI) Act was passed in 2000. It requires public bodies to reveal information on request, but provides 23 get-outs, designed to protect secrets that ought to stay under wraps because they threaten national security, personal privacy and so on. The rules are often interpreted in a creative way.
Now The Economist has discovered a contender for the most inventive interpretation to date. After thinking about it for nearly two years and trying out various exemptions, the Home Office has refused to release a confidential assessment of its anti-drugs strategy requested by Transform, a pressure group. The reason is that next March the National Audit Office (NAO), a public-spending watchdog, is due to publish a report of its own on local efforts to combat drugs. The Home Office says that to have two reports about drugs out at the same time might confuse the public, and for this reason it is going to keep its report under wraps.
This is believed to be the first time that a public body has openly refused to release information in order to manage the news better. The department argues that releasing its internal analysis now “risks misinterpretation of the findings of the [NAO] report”, because its own analysis is from 2007 and predates the NAO’s findings. The argument uses section 36 of the FOI act, which provides a broad exemption for information that could “prejudice the effective conduct of public affairs”.
The information commissioner, who polices the FOI act, declined to comment because the case was still open. But his predecessor, Richard Thomas, who stepped down in June, questioned the novel defence. “Certainly my office was always quite sceptical of anything which said publishing information is going to confuse the public. If that’s the case, normally you need to put out some extra material alongside it to provide adequate explanation. It’s not a reason for withholding something.”
Sir Alan Beith, the chairman of the parliamentary Justice Committee, which oversees the FOI act, was sharply critical of the Home Office’s excuse. “That’s really scraping the barrel. On those grounds you would have to ban the various hospital reports that are coming out at the moment [see previous story] because the public are confused about that too. It’s not an argument for censorship, it’s an argument for an even more open and clear debate.” The Home Office was making “a quite ridiculous attempt to hide from freedom of information,” he said.
The legality of the decision is also in doubt, after the department admitted that its refusal to release the document had not been approved by a minister, as is required by law. A Home Office spokeswoman called it an “administrative error”. Retrospective ministerial authorisation was being sought as The Economist went to press.
Legally or not, the Home Office will be able to hang on to its report for now because the FOI act takes so long to enforce. The commissioner’s office is said to be ready to order the release of the report now. If it does, the Home Office has 28 days to launch an appeal, which could take a year. In the meantime, drugs policy will continue to be shaped—or not—by research that the public paid for but may not see.
Posted on November 12th, 2009 No comments
One of my first complaints to the Information Commissioner this year appears to have been resolved in my favour – the result of which turned up a jem of a story about Benny Hill.
Way back in January I asked the Royal Mail for the minutes of its Stamp Advisory Committee. This is a body that meets a few times every year to decided the designs for our stamps.
I wanted to see the minutes to see what designs had been blocked and why. The Royal Mail turned my application down saying to the information was exempt under S.36 (Prejudice to the effective conduct of public affairs). I appealled and surprise, surprise I was turned down again.
My appeal was lodged with the Commissioner, and although I haven’t heard anything for about six months, last week I got an envelope through the door (it amuses me how the Royal Mail still prefer to post out some of their responses as if e-mail was never invented). In it were the minutes I had asked for, although there were still a few redactions.
It would appear that this is the way a large number of appeals will be settled these days. The Commissioner’s office looks at the case and then tells the public authority to sort its act out. The matter is then sorted out informally without the need for a Decision Notice.
When I did get to see the minutes it was noted that a set of stamps to celebrate 50 years of ITV was being planned but that Benny Hill was not going to feature in the set. The key item in the minutes that had not been redacted was that it was felt Benny Hill’s jokes were “in direct opposition to the company’s policies on harassment in the work place”.
I’ve embedded a classic clip from Benny Hill as well as the article as it appeared in the Daily Mail.
Posted on September 11th, 2009 No comments
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.
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] .
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 23rd, 2009 1 comment
Tucked away in the Annual report of the Office of the Surveillance Commissioners (OSC) was an interesting nugget for those of us with an interest in Freedom of Information – the quango’s boss Sir Christopher Rose issued an apology for misinterpreting FoI law – but he gave away a much more telling comment about how he intends to deal with the legislation in the future.
Much to annoyance of many people the OSC was not and it appears is in no danger of being brought under the FoI regime. However, its sole duty is to monitor the way public bodies use surveillance and bugging techniques and is responsible for ensuring that authorities allowed to use such powers are not overstepping the line.
The OSC’s staff has a constant monitoring process going on which ensures they regularly produce reports for authorities on the way they have been using surveillance techniques. These reports cannot be obtained under FoI from the OSC because it is NOT covered by FoI.
But what has clearly annoyed the OSC was that those devious people from the media were asking for copies of his reports from the organisations they were then sent to.
A petulant Sir Christopher wrote in his annual report last year:
During this reporting period there has been a significant increase in the number of Freedom of Information requests from the media. It is not usually an area on which I comment but I report my concern. I never disclose the contents of my reports to anyone other than the relevant Chief Constable or Chief Executive. But requests to the recipients of my reports have been aimed at acquiring my reports, my correspondence to and from Chief Officers and the action plans related to the recommendations that I make.
Responses by public authorities have been inconsistent and there is the perception that a decision by one authority to respond positively may lead the requestor to view negatively those which do not
disclose the information requested. When asked for guidance I have responded that it is in the public interest to demonstrate that covert surveillance conducted on behalf of the State is properly
regulated. This Annual Report is designed to provide that assurance. Seeking assurance of regulation is one thing, but attempting to acquire, under the auspices of freedom of information, operational details or knowledge of covert techniques is another. Redaction of these details from my reports could be misconstrued as secrecy or might adversely affect context and meaning.
I favour the advice provided by the Information Commissioner (Guidance Note 25). I regard myself as a ‘qualified person’ as defined by Section 36 of the Freedom of Information Act and it is my ‘reasonable opinion’ that for public authorities to disclose the contents of my reports would prejudice the effective conduct of public affairs. The risk of disclosure might tempt some individuals to withhold the full details of covert activities from me or my representatives; it might inhibit my ability to provide the evidence that is necessary to support my recommendations and it might inhibit the free and frank exchange of views and provision of advice that is currently the hallmark of the relationship which my Office enjoys with public authorities.
However this year he sounds a good deal more contrite:
Last year I commented on the impact of the Freedom of Information Act and the pressure on public authorities to disclose my reports. My intent was to address the difficulty of balancing transparency with the need to protect covert techniques and activity. They are not comfortable bedfellows. In order to provide evidence to support my recommendations, I frequently have to provide detail of
specific investigations or tactics. I protect my reports in accordance with the Government Protective Marking System. Without this evidence and protection, they would be of little value to the authority reported on. Redaction, however, can attract adverse comment. The OSC never discloses the content of its reports to third parties.
I misled myself regarding section 36 of the Freedom of Information Act. I am not capable of being a ‘qualified person’ within the meaning of that Act. I therefore confirm that the decision whether to disclose my reports, and if so in what form, rests with each public authority. I have promised to review the design of my reports to assist public authorities to meet their obligations.
What do we think does this last sentence means? Is he admitting that he is going to make sure less information of the kind he does not want disclosed is put in the reports because of the Freedom of Information legislation? Is this the first concrete example of the so-called ‘chilling effect’ where FoI laws actually work to create less openness because people are frightened and wary of disclosure?
On a final point on this matter it may be that between Sir Christopher’s comments in the 07/08 report and his climb-down in the 08/09 report, the decision by the Scottish Information Commissioner could have had some influence.
In a judgement against the Scottish Prison Service (SPS) the Scottish Information Commissioner ruled the report of the OSC should be made public subject to a few redactions in particularly sensitive sections.
The decision notice stated: “The Commissioner does not accept the arguments put forward by the SPS that a statutory body with a defined statutory task, such the OSC, would materially water down the content of reports on the basis that they might be made generally available to the public.”
It would appear the OSC may have decided he is going to do exactly that in future – should we expect a dilute future from the OSC?