Not now, Brian, we’re busy

Imagine that you are employed by a mobile phone network. Somebody working for a claims management firm approaches you, offering a large sum of money to steal the customer database, especially the mobile numbers. They want to send PPI claim text messages to all of the people on the list. You download the customer data, sell it, and pocket the proceeds. Having got it, you decide to sell the list to a rival mobile company. You put the information on a disc, and flog it on eBay. The people who send the PPI texts could receive a Civil Monetary Penalty of up to £500,000 as they do not have consent. But even if you are caught and prosecuted, the worst that can happen is to the thief is a maximum £5000 fine. The offence is not recordable, so you will not end up with a criminal record. The chances of being caught are slim, but the deterrent is even smaller.

Imagine if the government had long ago realised that the fines were not enough, and had taken the trouble to amend the law to punish white-collar data thieves with up to two years in jail. But around the time the law was being changed, the Prime Minister of the day met with representatives of a special interest group. Despite the fact that the new punishment was not intended to affect this group and detailed measures had been taken to protect them, the lobbyists were not satisfied, and they demanded that the prison sentence be held back. Even though the chances of their industry being affected by the change were very small, they could not accept even the slightest possibility that any one of their number could even face the possibility of a night in a cell.

If anyone else had held the country to ransom and prevented changes to a law that were entirely in the public interest, the press would be up in arms, pointing the finger with relish. If unions, lawyers, doctors or social workers – indeed, any regulated profession or group – expected crimes to have puny, worthless punishments just in case one of their own was imperilled, the Daily Mail would shout their condemnation from the highest rooftop.

And yet, we have to swallow special pleading from journalists in the name of press freedom, and live with a rampant black market in personal data as a consequence. The Information Commissioner is obviously desperate to tackle it, but the results in court are often ludicrous. The man who received stolen medical data from his girlfriend to use for personal injury claims was fined £1050. He memorably boasted after the verdict We’re going to Bella Italia after this and I’m having a fillet steak. A bank worker stole information from her employer about the victim of a sex attack committed by her husband. Her punishment was an £800 fine. Whatever you think about the publication of the BNP member address list, a fine of £200 for endangering life (and probably risking mass misidentification) is almost satire.

This is what any journalist who attacks the data theft prison sentence expects us all to tolerate for their safety. Gone is ‘publish and be damned’, to be replaced with ‘publish and be insulated from the consequences’. A number of Parliamentary committees have called for the sentence to be enabled, and the Information Commissioner himself is excoriating about a system where the punishments for data theft are so derisory. In the recent past, the constant refrain from Government has been wait for Leveson. We cannot pre-empt Leveson.

And now, Leveson has spoken, and regardless of what you think about the doomed suggestion of statutory underpinning and regulation, the data theft issue is very simple. Leveson argues for the prison sentence to be made live. When passed, the Data Protection Act contained a public interest defence for those accused of stealing data or procuring stolen data. When the last Labour Government recognised the failure of the current system and sought to introduce the prison sentence, they also amended the DPA further, making clear that all a journalist needs is a ‘reasonable belief’ that they are acting in the public interest to escape prosecution. Even though the prison sentence was not brought into force, this additional defence was.

At this point, before saying something contentious, the sensible writer includes a few sentences about how important they think press freedom and journalistic endeavour are. The secret hope of every blogger is probably that their sublime writing will catch the eye of a sympathetic editor and they will be catapulted from the amateur sphere and be given a weekly column, or at least a spot of freelance at the Guardian. Biting that hand that hasn’t even picked up the food is surely blogger suicide. But I can’t be arsed. I honestly don’t want to live in a country where journalists get locked up for doing good work, but I think I live in a country where newspapers can get mixed up in axe murders with impunity, so I doubt that Fleet Street will crumble if I fail to invoke the spirit of Voltaire before suggesting something that hacks might see as a check on their activities. They have David Cameron, Michael Gove and Boris Johnson and that’s all they need.

Besides, I come to exempt journalists, not to bury them. I think that the only solution to the data theft problem is to remove journalists from the equation. Lord Justice Leveson proposes significant amendments to the S32 exemption from DPA, which currently allows those processing personal data for journalistic, artistic and literary purposes to escape virtually all of the Data Protection principles as long as this is ‘necessary’. I think Sir Brian’s ideas don’t address the bigger picture, and should be binned. The press will never support any infringement of their liberties, whatever the justification, and some papers will monster anyone who supports such a plan. Meanwhile, the possibility of a prison sentence is likely to have a much better deterrent effect on office workers, nurses and cops tempted to steal or suborn others to steal personal data than a paltry fine and no record. If newspapers feel that they face this threat too, scaremongering about investigative journalists (rather than phone hackers and dumpster divers) ending up behind bars for speaking truth to power (rather than figuratively or actually smelling celebrity knickers) will continue its harmful knock-on effect.

S28 of the Data Protection Act gives those using personal data for the purposes of national security a total exemption from its requirements. Rather than continue to have the debate on data theft railroaded by a sideshow that is becoming increasingly sanctimonious, let’s extend that approach to journalists. Give them a ‘get out of jail free card’ and stop our personal data from being plundered everywhere else.

A pair of Charlies

The establishment wagons are circling – after Simon Jenkins’ kneejerk salvo against FOI in the Guardian, now Charles Moore, the Godfather of traditionalist opinion, coughs up a deplorable rant in the Telegraph that makes Jenkins look positively forward-thinking.

The most obvious thing is that Moore doesn’t know what he’s talking about. He admits this himself – asserting that the current records of government will be empty for fear of FOI exposure, he says “Obviously, I have seen the files of the 1980s and not those of the present, post-FoI era, so I cannot speak with authority”. A couple of paragraphs later, Charles gets tired of this problem, so he inverts it, complaining that as a consequence of technology, “huge amounts of information are kept”. He claims that FOI “gave no thought” to email. Email is included, Charles, and there are even cost limits on requests to prevent unlimited and pointless trawls of them. A lack of evidence or a consistent chain of thought is thankfully no barrier to Moore’s unique insights, as he notes that “FOI provides an exemption for journalistic endeavour”, even though it doesn’t.

Moore’s bad manners in pontificating on a subject he hasn’t bothered to research ought to void his opinions (admittedly this might be a pot / kettle moment), but even when you take him on, all you find is a straightforward defence of the status quo, except the one he wants to defend is circa 1985. The scant record keeping he can’t prove is happening but nevertheless attributes to FOI is Moore’s explanation for the ill-thought-out nature of current government. This is like the tabloid journalists who want to use Jimmy Savile as a stick with which to beat Leveson – interfere with our work, and we won’t be able to expose these monsters, even though Savile’s monstrous behaviour went entirely unexposed. Moore’s antipathy to FOI is based on the premise that before 2005, government was entirely free of both “dishonesty and intrigue” and muddy, unrecorded thinking, and only now that FOI is infecting the process is the great machine of government beginning to malfunction.

I think it is objectively fair to say that dishonesty and incompetence are not entirely new concepts to the British ruling elite, unless Moore thinks that the Suez Crisis, Profumo, the Mau Mau cover-ups, the sinking of the Belgrano, Hillsborough, the Poll Tax, the Iraq Supergun and the Cones Hotline are all examples of honest government and strategic thinking at their most sublime. But even if I’m wrong, Moore’s evidence for the ill-considered nature of current decision-making is “this week, energy pricing”. But the energy cock-up doesn’t support his case  – the problem with Cameron’s policy announcement is that he announced it without telling other ministers or finishing it off. It’s not FOI that’s the problem here, it’s a rattled PM shooting his mouth off.

I am in a worse position than Moore to comment on what’s really happening in Central Government because I don’t have privileged access to civil servants – he can assert that “officials tell me that the striking thing about modern government files is that they do not really exist”, and I’m sure he’s not just making that up for effect. Most of my clients are outside Central Government, so I don’t know the truth of it. Axe-grinders like Gus O’Donnell and Jack Straw and establishment apologists like Moore tell us that FOI is leaving behind only scorched earth – nothing is written down, everything is deleted.

I apologise for saying this again, but as the Justice Committee found, firstly we only have their word for it – no real evidence of this process exists beyond the moaning of yesterday’s men and the bleatings of their few allies in the media. But more importantly, even if it was true, this is not an argument for abolishing FOI. This is an argument for better politicians, for braver politicians. Moore’s case for secrecy is set out clearly enough. Government and the civil service need to operate with the security of knowing that their information will be kept secret for decades.

Without such security, there can be no honesty. It is simple: if you fear your private communication will be laid before the world, you will write it quite differently, or not at all.”

The electorate has to be infantilised, patronised, kept in the dark – we’re not mature enough to know how decisions are made, not even after the deciding is done. According to Charles Moore, the people who pay for the process aren’t entitled to see how it works. Only much later (when everyone affected might be dead) should a historian be allowed access, and then present this to the smaller number of people who read the history books. Rather than being entitled to ask what the current government is doing now, Moore says that we should only be allowed to buy his book about what went on thirty years after it makes any difference. We need history, but we also need contemporaneous accountability, investigation and a bit of well-aimed mischief to keep our rulers on their toes. If David Cameron stops keeping proper records to hide what he and his associates have done, we can judge him on that. I’m optimistic enough to think that a new generation of politicians can emerge who are willing to live with the uncertainty and discomfort that FOI inevitably brings. The ICO’s unacceptable FOI backlogs delayed the dawn of this new era, and the pain is perhaps sharper for the fact that the false start between 2005 and 2009 lulled Whitehall into thinking that FOI wasn’t as difficult as it turns to be and always should have been. As Jon Baines pointed out on Twitter, Moore’s own paper shows evidence that a different perspective may already be growing.

Moore says I’m a “prig” for wanting a more equal arrangement than that, but his approach is hardly respectable. As a columnist, Moore is relying on his opinions rather than research and facts, and he attacks tools that his own colleagues use with almost excessive enthusiasm. There’s one Telegraph journalist in particular that I can always use as shorthand for “hack that makes shedloads of FOIs”. But more importantly, Moore is also a relic of an age of deference where people in authority could be trusted to make decisions in secret, their thinking only revealed decades later. The world has moved on; George Osborne can’t even escape live-tweeted scrutiny on the Pendolino, and Moore’s inflexible, establishment approach makes him seem like an appalling old waxwork.

And with that seamless link, my last thought is about the events that occasioned Moore’s whinge – the use of the veto to prevent disclosure of Prince Charles’ letters to government departments. Again, the irony of Moore’s position on FOI is underlined by the fact that he chooses to attack the legislation using a vehicle that shows how government retains the upper hand. FOI Man has nailed the FOI issues, and Joan Smith of the Guardian has skewered the Prince, so I have little to add, except to say that Moore’s parting shot is ridiculous: “proper process is dying, and the courtiers are back in charge”. What FOI has shown us here is that Moore’s idea of the proper process (deference and secrecy) takes precedence. How can the couriers be in charge, when the law is changed to keep the Prince’s interference secret no matter what the public interest might be, and the heir to the throne’s constitutional neutrality is preserved only by the fig leaf of the process?

Revenge of the Nincompoop

With his charm, TOWIE tan and beaming smile, ageing smoothie Tony Blair increasingly resembles Lewis Archer, the character Nigel Havers played in Coronation Street. Ingratiating, suave but clearly with a huge amount of dodgy business in his past, Blair sidles up to us, offering a wonderful future. Unfortunately, like his fictional cousin, Blair’s past hangs around him like a fart in a lift, and we know that he’ll let us down again. As he jets into the UK to “re-engage”, his statement to the Justice Committee on FOI, a parsimonious 570 words (HT @alistair_sloan), hardly persuades me to fall in love with him again.

I’m sure the Justice Committee were genuinely offended that Blair did not do them the courtesy of appearing before them, and his no-show was disrespectful to Parliament (even his old colleague Jack Straw acknowledged this on the Today Programme). The Justice Committee’s work on FOI has been thoughtful, thorough and ultimately very sensible – every time I watched the proceedings, I was impressed by how positive many of the Committee members were about FOI. Blair’s refusal to participate was a disgrace, and they should have empty-chaired him. Nevertheless, giving the old fox a kicking also gave the media a handy peg on which to hang their coverage of the Committee’s report. And who am I to rise above the sideshow? I’ve picked out some of my favourite moments from Blair’s musings, but all I have to show for it is bile.

The Commissioner naturally tends towards curtailing the exemptions and especially where there is any sense of public anxiety faces a great temptation to stretch the ambit of the law.

This is bollocks. While Chris Graham is clearly presiding over a more assertive and truculent Information Commissioner’s Office, Blair’s views on FOI were set while Richard Thomas ran the shop. Blair’s experience of FOI would therefore have been in the backlog days, when information was only disclosed after years of dithering (i.e. long after the sensitivity had passed), and when the Tribunal made many of the bold decisions (the BBC Governors minutes for example) and rarely overturned the ICO’s disclosure orders. In other words, it was the judicial process that forced information out. Blair is a lawyer by profession, so shouldn’t he respect the legal process a bit more?

So the original idea was to make available the facts behind the decisions, not the confidential policy debate around those decisions.

The Act does not reflect this original idea, and what Blair fails to acknowledge is the FOI Act reflects the will of a Parliament dominated by his party and his people. Blair wants to create the impression that a fast one has been pulled, that the original intention has been perverted by the implementation. Labour’s first stab at FOI (the one sponsored by David Clark) went further than the Bill that was originally presented, and it is not the implementation of the Act that has created the problem Blair identifies. Section 35 is a blanket exemption for government policy making, but it has a public interest test. Section 36 is a wide exemption for discussions, advice and views, but it is loaded with hurdles. Nobody made Blair push this forward – he had been Prime Minister for 3 years by the time FOI was being debated and so he must have understood what effect the legislation was going t0 have. Blair was clearly unwilling to be straight with the public by either pulling the bill or forcing his MPs to vote through more restrictive provisions.

In reality, publication now goes way beyond that with the public interest tests giving a big impulsion in the direction of publication.

In other words, Blair sets himself and his version of politics against the public interest. I still can’t quite believe he said this. It’s worse than his self-flagellation in his autobiography, because he’s explicitly saying that the convenience of politicians is more important than the public interest.

Thus, the absolutely necessary committing to writing of often complex political and technical issues, is undermined. Of course, this is a subjective judgement. But I suspect it is one shared by most senior politicians

Only Tony could stress the value of ‘openness’ in a bid to defend secrecy. Blair failed to properly reform the House of Lords, bottled changing the electoral system, and looking at one of the few positive constitutional changes he achieved, he prefers secrecy and spin. Look at his choice of words: these are “complex political and technical issues” and “most senior politicians” feel the way he does, as he was no doubt saying to Kofi Annan and the Sultan of Brunei over the fish course at Davos. However he wants to be perceived, Blair’s statement comes across as elitist, conservative and imperious – FOI is a grubby and unwelcome intrusion that trespasses on the VIPs who run the world, and he resents the metaphorical presence of the hoi polloi at the top table. In reality, I suspect that what Blair really fears is that the Vaseline-lensed image of himself as International Man of Statesmanship will be undermined if we get confirmation of how he (and many other politicians) actually do their business.

But the truth is that, if people know that what they are saying is going to be published, they will be less frank and open in how they express themselves. If you believe, as I do, that such frankness and openness is essential to the proper conduct of decision-making, then again the impact of publication or even the threat of it, is counter-productive. 



Blair’s view of the civil service in particular and politics in general is damning. He describes a bunch of people who would rather keep inadequate records of major decisions, keep incomplete risk assessments, or withhold the best options for fear of what the public might make of them. Either he’s right, and the people running the country have a contemptuous view of the public, or he’s wrong. If Blair’s narrative is more about himself than the system, he clearly has a lot of things about the way he does business that he does not want us to know. Given his current role as jet-setting eminence grise for rich nations with ambivalent human rights records, one can only wonder what he got up to in office.

The purpose of the legislation was of course not to open such frank discussion to public view. It was to allow issues to be better debated; to permit people to access information about themselves held by Government; and to encourage the system to be more accountable.

It’s impressive that in such a meagre communication, Blair still has time to drop clangers that show he’s not really thinking about the substance of the issue, just whining about how it’s all so unfair. FOI provides greater access to personal data on the margins, but that is not its purpose and nobody could have thought it was, given that the Data Protection and Access to Health Records legislation had already ‘permitted’ (thanks Mr Tony Sir, so kind of you) this access in 1984, 1989 and 1998. If Blair really doesn’t know what his FOI Act did, he’s even more of a nincompoop than he claims to be. But wasn’t his statement to a Parliamentary Committee investigating what he considers to be his biggest career mistake important enough for one of his henchmen to fact-check it first?

Long term it will just result in a different way of conducting the business of Government.

Blair’s verdict on what this different way entails is less record keeping, worse decision-making. The problem is, that’s not a damning verdict on FOI or the people who use it to ask questions. It’s how he sees himself and the people he’s worked with, and how he thinks they react to increased scrutiny. Blair’s view is a relentlessly depressing critique of the political class he wants to protect. As another FOI reverse-ferret merchant said, he was the future once, and now he’s just a spokesman for political self-interest. I agree passionately with the above sentiment – FOI will result in a different way of doing business, but it doesn’t have to be the unrecorded, back-covering future that Blair cynically predicts. If politicians (some of whom I am perfectly prepared to believe are not bastards) grow up with FOI, they might actually make better, more informed decisions in the knowledge that journalists and troublemakers will catch them when they don’t. David Cameron has shown himself to be in the Blair mould, but that doesn’t constrain those who come after him.

In the meantime, one can only hope Blair stops pestering us and is eventually run out of the street, leaving only a trail of self-justification and Ambre Solaire.

Walk the walk

Chris Graham gave an impressive interview to the Guardian which is published today. It’s nice to see the Information Commissioner standing up for the principles of transparency and Freedom of Information in the face of what everyone can see is an establishment backlash. As the article says:

There are some very powerful voices saying it [the act] has all been a horrible mistake. Specifically, Tony Blair, Gus O’Donnell [the former head of the civil service] and the prime minister himself,” he said before adding the name of Simon Jenkins, the former Times editor and Guardian columnist.

To that list, we can also add Francis Maude, who imagines that he can make FOI redundant, and various slippery ministers who have allegedly been using private emails to get around legitimate scrutiny of their activities. Graham makes a compelling case, arguing that those who talk down FOI set the tone for everyone else. It cannot be a coincidence that the Cabinet Office’s record on FOI is dismal, given that it was until recently run by O’Donnell. The former Cabinet Secretary’s public antipathy towards FOI reared its head only when he decided to retire, but it’s probably a safe assumption that he wasn’t privately cheerleading for it before that.

Graham also skewered Maude’s patronising line on transparency, by arguing that “Sometimes the full story is in the background papers and minutes of meetings rather than just raw data.

Graham’s analysis is right. People don’t always pay attention to the people at the top (just look at what happened to poor Bob Diamond, an honest man undone by a tiny number of unruly minions), but if they are given any excuse to be lazy, or to misbehave by the example set higher up, they’ll do it (just look at what happened…). I know of an organisation where the head of IT complains that having to remember a password to activate their Blackberry is too onerous and makes them look daft. The person responsible for Data Security might as well quit for all the good their efforts will do. If David Cameron was the politician he claimed to be – the one who offered ‘the most open and transparent government ever‘ – then his approach to FOI would be very different. No-one would have believed Cameron if he pretended he was a big fan of the legislation, but a respectable politician would acknowledge it as an inconvenient but necessary part of an accountable democracy. Instead he whinges about FOI furring up the arteries of government while the Cabinet Office holds secret information on plans to charge for FOI requests that they at first claim does not exist.

Graham’s aplomb at dealing with the media draws a sharp and creditable contrast with his hesitant predecessor. Occasionally, there is misjudgement (as I said before, “wake up and smell the CMP” was an awful headline and whoever came up with it should be made to sit a corner for a while). Nevertheless, the Commissioner is saying the right things and anyone who supports FOI should be happy that he isn’t congratulating himself for not taking on the big targets, which is what Richard Thomas did at Leveson.

The problem for Graham is clearly not a lack of ambition or self-belief. In one sense, the problem of doing the job of championing transparency is that you have to do it in a world shrouded in bullshit and euphemism. I listened to less than an hour of of BBC Radio 4’s Today programme this morning, and as well as all the usual spin and lies, even the language was dishonest. After John Humphrys took someone to task for describing G4S as a ‘partner’ instead of a ‘contractor’, I started to hear the word everywhere, and never in a truthful context. Corporations bankrolling the Olympics were ‘partners’ rather than ‘advertisers’; TV companies screening Scottish Premiership Football were ‘partners’ rather than well, TV companies. Everyone wanted to wrap professional and commercial relationships in a blanket that implied a shared and personal endeavour, rather than each side being interested only in getting what they could out of the deal with minimum effort. The same circumlocutions infect politics and government, national and local. Doing the FOI job in these circumstances is like wading through custard.

However, one thing he can do is keep his own house in order. The Tribunal often has to criticise the ICO for their handling of FOI compliance – read paragraph 25 of this recent decision for a good example. The ICO ignores its own guidance on FOI by challenging an FOI applicant using an obvious pseudonym for no real reason, and then exemplifies the inherent flaw in that guidance by backing down the moment the fake-named applicant pushes back. More seriously, a certain blogger asked a sensible question about information notices and ended up finding out that the ICO doesn’t know how many information notices they have issued under FOI. As well as the clear implication that ICO staff are not following their own procedures (if they were, it would not exceed the FOI cost limit for the ICO to find all of the notices), there is a bigger point that whoever is corporately responsible for FOI strategy within the Office doesn’t have all of the information they need to do their job. How can they look for patterns of underlying problems (which multiple info notices would suggest) if they don’t even know how many they’ve issued?

I am, of course, assuming that someone is doing this, rather than everyone frenetically trying to keep the backlog on a leash. If they’re not, Graham’s words turn to ash in his mouth. Things are better than they were. Graham’s profile is bigger. The frenetic backlog bashing does at least mean that organisations cannot rely simply on the passage of time to escape accountability. I don’t imagine ministers slept easy in their beds when the ICO stood its ground on private email (and ministers should never sleep easy). For all of these things, Chris Graham deserves credit. But talk is cheap. Until the ICO can show that its own FOI and records management practice is exemplary, it cannot lecture anyone else. Until it shows that the most recalcitrant government departments will be brought to heel on FOI, every council and NHS trust will be justified in saying that they’re busy and under-resourced, and FOI is a burden they don’t need.

So two cheers for being a great advocate – the third is reserved for delivery.

Naming and shaming

Last week, David Cameron asserted that “we will not let any phoney concerns about human rights” prevent the publication of images that might help identify rioters. I didn’t hear anyone raising such concerns, but Cameron clearly felt that the privacy and human rights mob were waiting in the wings to take over where the looters had left off. This weekend, Theresa May compounded this by stating that she thought that reporting restrictions should be lifted more often, replacing the standard line of ‘a 17 year old who cannot be named for legal reasons’ with the real name of the disagreeable young hoodlum.

I’ll leave the debate on stigma and shame for Peter Hitchens. The important point for information law is simply that there is nothing in the Human Rights Act or Data Protection that stops law enforcement agencies from publishing pictures of perps in order to identify them, nothing to stop them sharing images with the media to achieve this, and nothing to stop members of the public sending their own images to the media or the police. Even if the publication interfered with the privacy of rioters (which I doubt), identification of offenders would surely be necessary in a democratic society for the purposes of preventing or detecting crime (Article 8’s condition for interfering with privacy). Meanwhile, Data Protection neatly uses the same wording to allow the sharing of data in an exemption, while the sharing of images to identify rioters would surely be a “legitimate interest” that wouldn’t cause unwarranted harm.
Cutting through the schedules and sections, the summary is that you don’t have to ignore Human Rights and Data Protection – they fall entirely into line behind the sensible use of images to identify and apprehend offenders. What I’d like to know is why Cameron felt the need to make this remark as part of his landmark speech in Downing Street. I’m sure the Prime Minister’s Human Rights Act is as well-thumbed as mine, so surely he knows that privacy law supports criminal investigations. Was this a little smash-and-grab against Human Rights, just because the opportunity was there, and he couldn’t resist it?
Sounds familiar.