I’m going to say it again. I really like Christopher Graham. Anyone would have looked dynamic after Richard “BACKLOG” Thomas, but I believe he’s trying to make a difference in his role. I’m not sure we’d get on personally, but that’s definitely more about me than him. I have absolutely no doubt that he means business. And what’s more, blogger’s hyperbole aside, I don’t really think that everyone who works at the ICO is an idiot. In fact, when I think of all the people at the ICO who I definitely think are idiots, I could count them on the fingers of one hand, if we count thumbs as fingers and I was Anne Boleyn.
But in writing to the Financial Times to refute the claim that the ICO is a toothless regulator, Mr Graham said this: “The record shows that the Information Commissioner’s Office regularly makes difficult decisions that challenge Whitehall”. He pointed out that he has issued a number of Decision Notices against the Cabinet Office and most importantly, he is a regulator with powers of prosecution. This isn’t fooling anyone. Even FOI Man Paul Gibbons is having his doubts about the Commissioner’s rigour, and he’s so nice he didn’t lose his temper when I suggested he change his name to Paul Chimpanzees. What’s really strange about Graham’s response – apart from what Paul accurately identified as his eccentrically clear aim at the messenger – is what’s missing. Although I think the quality of ICO FOI casework has generally gone down, I don’t deny that on a good day, Wilmslow is capable of stepping up and making the right calls on individual decisions. What Mr Graham has to answer is whether his office is capable of taking enforcement action; not to deal with individual complaints, but with the wider approach of a Government department that sees FOI as an inconvenience.
However, in case we need evidence that action might be necessary, let’s consider the decision notices issued to the Cabinet Office in 2013 by the ICO, to bask in the heat of their effectiveness:
The Cabinet Office are revealed to have failed to respond to a previous ICO Decision Notice (that thing that is supposed to be Contempt of Court). They fail to do an internal review in the ICO’s recommended timescale. They claim to the ICO to have disclosed a contract to the applicant, but repeatedly fail to confirm that this has actually happened. They then use the applicant’s complaint to the ICO as an excuse not to disclose anything else. They claim that a disclosure will harm Capita’s commercial interests, even though they haven’t actually asked Capita what they think about the disclosure. The ICO tells the Cabinet Office that “it is essential that the Cabinet Office ensures that there is no repetition of these issues in relation to future requests”. This is the last time in 2013 that the ICO use the word ‘essential’ in this context. It’s January.
The Cabinet Office carefully interpret a request about contacts with Common Purpose so that information they have already disclosed to another applicant is not disclosed. They refuse the request as vexatious (the ICO overturns this).
The Cabinet Office fails to do an internal review in the ICO’s recommended timescale. It claims that the Statistics and Registration Service Act 2007 provides a prohibition on disclosure. It doesn’t. They try to use s22 (information published in the future) but are “unclear and inconsistent” with the ICO about when and by whom the requested information will be published. The Decision Notice states that the ICO normally offers one opportunity to explain the application of an exemption, but in this case, the Cabinet Office has failed to give a satisfactory answer at the third time of asking. One can only wonder why they get special treatment.
The Cabinet Office applies an exemption without specifying which information is covered by the exemption in question. The applicant requests an internal review on 19th January 2012, and the Cabinet Office responds three months later. The ICO no longer uses the word ‘essential’ when discussing how important it is that the Cabinet Office not do this again.
The request in question is made on 1st March 2012. The Cabinet Office respond on 10th May 2012.
An applicant asking about training provided to David Cameron before his appearance at Leveson receives no information because he uses the phrase ‘coaching’ instead of ‘legal assistance’. At first, the Cabinet Office states it holds no information. At internal review, it claims that it holds information, but will publish the information in the future, citing a statement made by Jeremy Hunt about the publication of what turns out to be something else. When the ICO investigates, the Cabinet Office changes its mind again and decides it holds no information. It states that an objective reading of the request to say that the use of the phrase ‘coaching’ can only refer to a specific type of information. However, when the ICO points out that the applicant has asked for information about coaching “or” ‘preparation, the Cabinet Office reverts to a subjective reading of the request, claiming that the applicant uses ‘coaching’ and ‘preparation’ interchangeably, even thought this makes no sense in terms of what the applicant actually asked for.
Remember: I am receiving legal assistance, you are being prepared, he is being coached.
The Cabinet Office refuse to answer a request because an email is not a document [Discuss]. They imply that you cannot request information unless you already know what it is, but at the risk of a Top Shop / Rihanna situation as regards the FT and Chris Cook, I’ll stop there.
The Cabinet Office claim that no information is held based on a restrictive interpretation of the request. You’ll never guess what happens then. The internal review is completed outside the ICO’s recommended timescale.
The internal review is completed outside the ICO’s recommended timescale. I know, me too.
The Cabinet Office maintain a position of holding no information in relation to the applicant’s request until the ICO investigates. Guess what they find then?
The Cabinet Office claim that telling the public how many times a committee on better regulation has met would affect ministerial collective responsibility. The ICO states that their arguments about the harm caused by disclosure are made as if the applicant has asked for other information.
The Cabinet Office claim that they cannot find the requested information within the FOI timescales, but on internal review decide that the request is not valid.
The Cabinet Office claim that ongoing investigations into the conduct of Jimmy Savile will be harmed because those involved will be less candid if information about why Savile received honours is released, an argument that the ICO regards as ‘highly speculative’. I agree that the use of the word ‘horseshit’ would probably have been unbecoming.
The applicant makes their request on 9th July 2012. The Cabinet Office responds on 27th September 2012. The applicant requests an internal review on the same day. The Cabinet Office respond on 26th November 2012.
The request is made on 28th November 2012. No response has been received by 21st January 2013. The ICO intervenes on March 6th 2013, and the Cabinet Office then ask the applicant for clarification, which he provides the same day. The Cabinet Office fail to answer and the Decision Notice is necessary simply to oblige them to do so.
The Cabinet Office fail to give a valid response to an FOI request, and the Decision Notice is necessary to oblige them to provide an internal review.
Decision FS50498628 (22nd July 2013)
A Decision Notice is necessary to oblige the Cabinet Office to respond to this FOI request.
Decision FS5050001 (24th July, just over a week before Christopher Graham writes to the FT)
The applicant makes their request in September 2012, and only after being prompted on 8th March 2013 does the Cabinet Office promise on 10th April 2013 to reply by 8th May 2013. On 10th of June 2013, the ICO tells the Cabinet Office to respond by July 8th (nearly a year after the request was originally made). The Cabinet Office tell the ICO on the 17th July – less than three weeks before Christopher Graham’s stout defence of the ICO’s approach on the FT’s letter’s page – that they cannot possibly respond without the appropriate clearance. Which, I hope you’ll agree, is like slapping your buttocks heartily as you moon the policeman who is trying to arrest you.
I have no doubt that the ICO will continue to make variable FOI Decisions, many good, some appalling. But the FOI Act will remain unenforced, because someone in the Commissioner’s Office is apparently afraid of the Cabinet Office and is apparently obliging the boss to pretend that the Decision Notices as described above are going to to do the trick. They haven’t and they won’t. The Cabinet Office would fight tooth and nail to protect disclosures about the Schleswig-Holstein Question. They have learned nothing from FOI’s introduction. Moreover, every public authority, every quango, every council, every NHS Trust, every police force, every college, every last one of them from Walberswick Council up is entitled to point to the Cabinet Office and say, if you didn’t do them, you’re not going to do us. So why should anyone take the ICO seriously on FOI?
Chris Graham’s letter to the FT characterised the ICO as an FOI watchdog unafraid to bark when it needed to. The finest manager I have ever had (much love and respect to you, Kevin) once characterised the ICO as being the kind of hound who could at worst give you a nasty suck. These days, I’m not even sure Wilmslow could run to a love bite.
FOI is dead; long live the Cabinet Office.