Human Wrongs

A few years ago I went to Strasbourg, home of the famous European Court of Human Rights. After admiring the building itself, I noticed a disabled man camping on the other side of the tracks that take visitors to the tram stop named, rather piously, ‘Droits De L’Homme’. He had a huge display in several languages, setting out the appalling injustice that the Court had dealt him by not upholding his case. There were several such men, who would no doubt have treated a ECHR victory as total vindication, but the loss was evidence only of the Court’s bias and corruption. I immediately thought of the notorious FOI applicant and progenitor of vexatious caselaw Alan Dransfield, and wondered if one day, he would be one of the poor souls, earnestly telling his sorry tale to tourists. This is unlikely of course, because Dransfield would spend his time shouting at every passer-by that they were a dickhead.

Nevertheless, the website ‘Amazon News Media’ chose to celebrate International Human Rights Day last month (10th December, diary fans) by publishing an open letter from Dransfield to the Justice Secretary Elizabeth Truss. Fans of Dransfield’s work will be pleased to see a number of familiar themes in the letter. Dransfield claims that the Information Commissioner’s Office is guilty of fraud and theft of public funds. There is ‘tangible evidence‘ that they, along with multiple public authorities, are involved in a conspiracy to pervert the course of justice:

The evidence of complicity between the ICO and Public Authorities seeking to avoid obligations under FOI by consistent misuse and abuse of Section 14/1 vexatious exemption is overwhelming

Dransfield doesn’t specify what the overwhelming / tangible evidence is, beyond asserting that he lost his case at the Court of Appeal, so QED: the fix is in. The letter makes a series of allegations about the ICO and demands that the Commissioner is sacked and replaced by himself. The allegations are a mixture of falsehood (he says that they don’t publish their register of interests when they do) and opinion (he claims it is a breach of an unspecified EU Trade law that the ICO usually uses 11KBW for legal services, ignoring the fact that they are the leading information law chambers in the UK). The only verifiable claim is the conflict of interest in having a council leader act as a manager of a team that deals with complaints about councils and political parties. Dransfield only knows about this because I did an FOI request about it and wrote about it here (inevitably, Dransfield spells his name wrong and the mistake slipped through Amazon News Media’s presumably robust fact checking procedures).

If you’re not familiar with it, the scale of the Dransfield conspiracy is breathtaking – construction companies including Balfour Beatty, multiple councils, the Health and Safety Executive, Dransfield’s MP Ben Bradshaw, the previous and current Information Commissioners and many of their staff, West Ham United, the Olympic Delivery Authority and various other Olympic bodies, former secretary of state Chris Grayling, myself, the Upper Tribunal, the Court of Appeal, the Supreme Court and the House of Lords, all working tirelessly to cover up the construction of a network of unsafe buildings and bridges across the UK. Only Dransfield has the insight to see the conspiracy in all its Byzantine complexity, and the entire UK legal system is ranged against him to stop his crusade.

There is, of course, another perspective, but Amazon News Media have seemingly backed Dransfield with gusto. The accompanying editorial hails “Mr Dransfield’s long experience as a social watchdog” and complains of his “extensive scapegoating” but demonstrates a slender grasp on the facts. For example, it claims that vexatiousness was planted at the second, Upper Tier Tribunal, rather than being a feature of the original refusal dealt with by the ICO. Moreover, like Dransfield, Amazon News Media make big play of the fact that it was the ICO who appealed to the Upper Tribunal and Court of Appeal, describing it as an “abuse” of the system. When Dransfield went to the First Tier Tribunal, he was appealing the ICO’s decision, not Devon’s original refusal. If the ICO disagrees with the FTT, it is they (and not Devon) who must take forward the appeal. The appeal process is not open only to the applicant – public authorities and applicants can challenge the Commissioner, but the Commissioner is entitled to challenge decisions that they think are wrong. This is how the system is designed, and Dransfield chose to use that system. Complaining about the result of a process you initiated is acting like the men outside the ECHR.

I put a comment on the Amazon News Media blog, pointing out that I had made 100s* of FOI requests without ever being refused as vexatious (the issue of Alex Ganotis’ role at the ICO just being one of many), pointing out that Dransfield’s hostility and abusive character is probably part of the problem. An unnamed representative of the organisation dismissed this – apparently, when Dransfield called the Information Commissioner Elizabeth Denham a ‘useless cow’ on Twitter, this was just “colourful language [that] perhaps reflects the insult of having your name unreasonably scape-goated for half a decade“. So perhaps the insult is Denham’s fault for not giving Dransfield the face-to-face meeting he’s been demanding since July. It’s an odd perspective, because Dransfield has been calling me a prick and a dickhead for disagreeing with him ever since this mess started.

I can’t work out who runs the Amazon News Media site – it describes itself as “an evidence-based website practising freelance written and video journalism“, but the website, Twitter account and Facebook page are all somewhat anonymous. The site itself is registered to a David Hodgson in New Zealand, but the nameless person who runs the Twitter account told me that it is based in Swansea. Whoever they are,

UPDATE: I know who they are. I’ve read all 59 pages of the judgement.

They have made a fatal error in their analysis of Dransfield’s case. The editorial states that Dransfield enjoys “superior knowledge of lighting protection systems, and Health and Safety regulations” – the problem is that this is irrelevant to the case. S14 of FOI has no public interest test – it’s not about the information, but the process.

The Information Commissioner, the two Tribunals and the Court of Appeal are not supposed to decide whether Dransfield is right about the unsafe buildings. For the record, I think the conspiracy is a complete fantasy, and Dransfield’s requests are the result of a grudge against his former employer, Balfour Beatty. None of Dransfield’s blood-curdling predictions about fatal lightning strikes have come true, and I am not aware of anyone in the UK Health and Safety sector who backs his theories (I’m famously an arsehole and lots of people agree with me about Data Protection despite this impediment).

None of this matters. The question in play is not one about Health and Safety. The question is whether Dransfield’s torrent of requests, complaints and other correspondence were an abuse of the FOI system. Dransfield had every opportunity to put his case before four independent bodies – one of them agreed with him, and the others did not. It’s not impossible for Dransfield to be right about the buildings (as unlikely as this may seem) and yet, because of his hostility, his stubbornness and the sheer weight of his requests, they tip into vexatiousness.

Ironically, despite Dransfield’s antipathy towards the ICO (and his misogyny towards the new Commissioner), his demand that the ICO sort out the vexatious issue is completely wide of the mark. Even if Denham accepted that he was right, she is powerless to reverse the Dransfield decision. If Wilmslow executed a volte face tomorrow, the Court of Appeal decision would still stand. Public authorities could use the CoA judgement against the ICO in the Tribunals who would be bound by it. Only the courts can change the decision – it is out of the Commissioner’s hands. It’s tempting to believe that Dransfield knows this, and he directs his rage toward the ICO solely because he enjoys it, rather than knowing it will change the outcome.

In the end, Amazon News Media grew tired of my interventions and refused to publish my final comment unless I edited out all of the mansplaining, repetition and “snark”. Instead of being censored, you can – if you wish – read the comments on ANM, and then, by way of a conclusion to all this, I reproduce the comment that they found so objectionable.

You can twist what I have said in any direction that suits you. The decisions that the ICO makes are, obviously, about the public interest (where that applies, and with some exemptions, it doesn’t). Sometimes they get those decisions wrong, sometimes they get them right. When a decision has been tested at several levels, and then looked at subsequently by differently constituted tribunals, you have two choices. Either you can believe that there is an enormous conspiracy to subvert the FOI Act, or you can look at the particular case and decide that maybe the system got it right. There is no inner truth here – you believe what you want to believe based on your own prejudices.

What I said above is that Mr Dransfield’s letter, your publication of it and your conspiracy theories about the legal system will have no practical effect. Truss will not intervene because it isn’t her place to intervene in legal cases. The European Court of Human Rights will not intervene, because Mr Dransfield has been refused leave to appeal there. These are facts – you can put a political / paranoid spin on them if you like, but the spin doesn’t change the facts. If you want to stop vexatious decisions being made under Dransfield, someone needs to take a case all the way to the Court of Appeal and get Dransfield overturned. Alternatively, the FOI Act will have to be amended in Parliament. Given that you think the entire legal system is corrupt, I assume you’re not much keener on MPs. Which makes all of the above a monumental waste of time. But at least it gives you and Dransfield something to do.

* ANM refuse to believe that I have made 100s of FOI requests without proof. Given that they are willing to turn an abusive blowhard into a Human Rights champion without any justification, I am content to say that I have, and if they or you don’t believe me, I don’t care.

** It has been suggested to me that in my comment above, I said that the Court of Appeal can overturn Dransfield, whereas the suggestion is that actually, only the Supreme Court can do it i.e. the court *above* the Court of Appeal. If this is right (and I suspect that it is), the difficulty of reversing Dransfield is greater.

Caesar’s Wife

In May 2016, the Labour member for Heatons North, Alex Ganotis, became Leader of Stockport Council, having been a councillor for some years. A month or so later, I read a story mentioning him in the Manchester Evening News, and his name rang a bell. Alex Ganotis is also a Group Manager at the Information Commissioner’s Office – I know this because he has signed hundreds of FOI Decision Notices on behalf of the Commissioner.

I made an FOI request to the ICO to find out more about Mr Ganotis’ role – in particular, I wanted to know how likely it was that a professional politician might be involved in complaints to the ICO involving political parties or local government. If Mr Ganotis worked on financial services or health, for example, he would need to maintain a high degree of professionalism and neutrality, but there would be no immediate conflict of interest. So I asked the ICO what team he manages. The answer:

Mr Ganotis manages a team of staff who deal with complaints and concerns about councils and political parties

I had to read this several times before I could take it in.

The ICO’s Policy on party political activities is helpfully published on its website. It makes reassuring reading:

The ICO is an independent body and it is important for it to be free from party political bias, and to be clearly seen and acknowledged as being free from such bias……. It is of paramount importance that the ICO is acknowledged as being free from party political bias and influence. The work that we do can often be of a politically sensitive nature and any substantiated allegations of bias would have serious repercussions for the future of the ICO.

The policy sets out a process through which an ICO employee can gain approval for party political activities. I asked when Ganotis went through this process, and the ICO revealed that he was approved in October 2008, which means that his dual ICO / councillor role went on for nearly eight years before he became Leader – he did not seek re-approval when he became Leader, so it seems that the ICO has not reassessed his role now he is a council leader, nor has he asked for this to happen.

I asked for recorded information about the approval process for his role. The ICO has nothing. I asked for any recorded information about measures taken to ensure, in the Policy’s words, that ‘potential for conflicts of interest’ have been minimised with regard to Mr Ganotis’ role. Nothing is held. The ICO added “Mr Ganotis’ line manager and his peers are responsible for assigning decision notices and make a judgement on a case-by-case basis as to what he is assigned, taking into account whether individual cases could pose a potential conflict of interest.” There are no formal arrangements, no written criteria or parameters, nothing to measure or audit against. The ICO enthusiastically fines organisations hundreds of thousands of pounds for failing to maintain properly documented processes, but in the case of having a professional politician managing a team that deals with hundreds of complaints about political parties and councils, the ICO itself sees no need for rigour. Trust whoever decided that this is OK, Wilmslow says, because we have nothing else to offer.

Mr Ganotis is a Group Manager, answering to a Head of Department, but the ICO’s response makes clear that the former Information Commissioner himself, Richard Thomas, approved of the arrangement: “the Commissioner at that time was made aware of his standing and subsequent election“. When I wrote this blog originally, I assumed it was Christopher Graham who was Commissioner, but he did not take over until 2009. ICO trivia fans may remember that Graham was himself once a councillor (for the Liberal Party) and a twice-unsuccessful parliamentary candidate – one wonders if he knew about Ganotis’ status, and if he did not, why nobody told him.

Anyone who has political beliefs or leanings and works in local or central government knows the awkward but vital requirement to set those beliefs aside and act neutrally in the public interest. As a Labour voter in every election since 1992, I have done it myself. It is not easy, but you don’t need to be a saint to achieve it. I cast no doubt on Mr Ganotis’ personal integrity, or ability to do the same. But anyone who thinks that’s the point just needs to Google the title of this blog.

Mr Ganotis has signed hundreds of FOI decision notices on behalf of the Information Commissioner, exercising the Commissioner’s statutory powers. Those notices include  councils across the UK, and government departments run by ministers who, in his other role, Mr Ganotis publicly opposes, and he has been doing so for years. The ICO disclosed to me a spreadsheet of the cases that Ganotis’ team has dealt with since January 2014 (records before that are routinely destroyed). A quick glance at the organisations concerned give a flavour of the issues that pass across the team’s desk in just one month. In July 2016, I can see the Labour Party (8 times), Momentum, Saving Labour, and Progress. It is hard to imagine any team would be more steeped in politics and arguments about political activity than this one, and the (former) Information Commissioner decided that a professional politician was the right person to manage it.

Over the past few years, the Labour Party has carried out its obnoxious and unfair purge, struggled with allegations of member data misuse on all sides (Corbyn, Momentum and Owen Smith), and demonstrated the traditional party blindness to PECR. I have myself blogged sorrowfully but repeatedly about Labour’s Data Protection and privacy woes for several years. In all of that time, only David Lammy’s doomed automated calls have faced any enforcement action (and he wasn’t even an official Labour candidate in the election concerned). To be clear, I have no evidence of any influence being brought to bear on this. But, as the ICO’s own policy states explicitly, “the organisation does seek to ensure that the potential for conflicts of interest is minimised as is the possibility of the ICO being accused of being politically biased“. In this, Mr Ganotis, his line manager and the former Commissioner have failed, and failed spectacularly. How can anyone in politics have confidence in the ICO’s decisions?

Any FOI decision notice involving a council or a government department signed by Mr Ganotis could be tainted, and there are hundreds of them. The ICO’s failure to take action against the Labour Party for a consistently terrible approach to Data Protection and privacy issues is no longer just over-caution, but potentially something far more objectionable. Every case Mr Ganotis has been involved in could be perfect, but the ICO cannot guarantee this with a straight face; their own policy recognises the problem of perception, but their practice is blind to it. They could have moved Ganotis at any point since 2008 to another job of equal standing, and the problem would have evaporated. He is still in place.

That Mr Ganotis could not see that continuing to manage a team responsible for complaints about political parties and councils was incompatible with his role first as councillor and then as Council Leader raises a question about his judgement. That the ICO’s management was either unwilling or incapable of identifying and remedying the potential conflict of interest is a matter of serious public concern.

I have spent a decade and a half criticising, satirising and annoying the ICO in the hope that for no other reason than to spite me, they will become a more effective, more enthusiastic regulator of Data Protection. But this is too much. This is a genuine failure of governance. It could pollute a host of formal decisions (and indecisions) stretching back for years. It has to be dealt with.

I don’t understand how Mr Ganotis could ever sensibly manage the team responsible for political parties and enjoy the confidence of the public. Richard Thomas and Chris Graham should have stopped it, and I hope that the new Commissioner will ask questions about how her managers and Human Resources team could allow such a shocking situation to occur. But if all this isn’t put right, if this bizarre conflict of interest continues acknowledged but unaddressed, we should all look very closely at every decision that emerges from Wilmslow with a more sceptical eye than even I thought possible.

Wanted

Many of today’s newspapers report (once again) that police forces are refusing to name wanted suspects because of Data Protection and Human Rights. It’s tempting to assume that by now, everyone knows that the Data Protection Act does not prevent the disclosure of wanted suspects’ names and photos, so when another newspaper makes an FOI request for the most wanted, the inevitably craven and risk-averse responses don’t really need to be debunked. Surely we all know that the cops either don’t want to get into nuanced conversations about the operational reasons not to name the suspects, they are too cowardly to use Data Protection to justify disclosure, or they just plain don’t understand the process? Is it really worth pointing out why the decision is so knuckle-headed?

Admittedly, without seeing all of the responses, I can’t be certain how bad they really are – all we have are selected quotes. I must also acknowledge that my judgement is clouded by having recently made FOI requests to a number of police forces, an experience that makes me assume that everything these forces have done is wrong. Nevertheless, it doesn’t look good – Humberside Police apparently told the Daily Mail that it wasn’t in the public interest to disclose sensitive personal data, despite the DP exemption in FOI not having a public interest test. Meanwhile, Leicestershire Police claimed a suspected murderer and rapist, could not be named because it went against the ‘principles of fairness’, while Staffordshire said its response was “processed in line with individuals’ rights”, which means either that Staffordshire have received a valid Section 10 notice from each of the suspects in question, or they don’t know what they are talking about. 18 other forces are cited by the Mail as having claimed that Data Protection prevents disclosure.

The only force who appear to have a leg to stand on are Nottinghamshire, who used Section 30(1) of FOI. S30 applies to investigations, so presumably Nottinghamshire are arguing that if they haven’t already named the suspects, it isn’t in the public interest to release them in response to an FOI. I can’t say for certain if this decision is correct, but the use of S30 suggests that Nottinghamshire’s decision is based on operational reasons related to their ongoing investigation. On that basis alone, they deserve the benefit of the doubt in a way that any force using S40 does not.

Rather than spend another 500 words calling police FOI and DP decision makers an assortment of rude names (which was my original plan for this blog), permit me to explain exactly why the use of Data Protection is always nonsense in these situations.

HOW DOES SECTION 40 WORK?

Section 40 of FOI defers entirely to the Data Protection Act when the request is for personal data about someone else. Essentially, if a disclosure of personal data would breach any of the Data Protection principles, if it would breach a valid Section 10 notice issued by the data subject, or if it would be exempt from subject access (i.e. the subject would not receive it themselves if they asked for it). In practice, the Information Commissioner considers that if the disclosure will not breach the first Data Protection principle, S40 is not a barrier. The forces must be arguing that disclosure of the wanted suspect’s data breaches the first principle.

HOW DOES THE FIRST PRINCIPLE WORK?

The first principle says that the processing of data – here, the disclosure – must be FAIR, LAWFUL, and ACCORDING TO A SET OF CONDITIONS.

FAIR

Fair means what it says in the dictionary, and it also means that the data subject must be informed of how their data will be used. The ICO is fond of the notion of ‘reasonable expectations’ – you don’t need to tell people how their data will be used if it’s obvious. This would plainly apply in these circumstances; a suspect cannot expect that their data will be suppressed while they are being hunted. In any case, S29 of Data Protection removes the requirement to use data fairly in any situation where doing so would prejudice the apprehension or prosecution of offenders. Therefore, if disclosure of the suspects’ identities would assist in their capture, fairness is no barrier.If disclosure will prejudice attempts to recover them, the FOI S30 exemption used by Nottinghamshire is the right exemption. The problem that would motivate the police is the effect on their investigation rather than the personal data issue.

LAWFUL

Lawful means that police forces cannot breach *other* laws by the processing of personal data. This could be why Human Rights were cited by some of the forces. If disclosure of the personal data would breach a suspect’s Article 8 rights to privacy, the disclosure would be unlawful, and so DP would be a barrier. But this is nonsense. The right to privacy is not an absolute right, and can be interfered with in a variety of circumstances, including where it is necessary in the interests of national security, public safety, for the prevention of disorder or crime. You can, if you like, argue that naming the suspects interferes with their privacy (I don’t think it does) but even if it does, if publication of the names will assist in their capture, the interference would clearly be necessary to protect public safety or prevent crime. It’s lawful, unless the police argue that disclosure will impair their investigation. If they thought that, they would use Section 30 of FOI.

CONDITIONS

The data in question is sensitive personal data, as it relates to the alleged commission of crime. This means that each force has to meet two conditions in order to disclose: once from Schedule 2  and one from Schedule 3.

Schedule 2 is easy – we can pick from 5 (the processing is necessary for the administration of justice or the processing is necessary for the exercise of public functions in the public interest) or 6 (the processing is necessary for legitimate interests that do not cause unwarranted prejudice to the rights and freedoms or interests of the subject). The first two might be preferable to the balancing exercise required by the third, but if you really think that disclosing the name of a wanted man causes unwarranted prejudice to their rights, you are a moron.

Schedule 3(7)(1)(a) gives us administration of justice again while 3(7)(1)(b) gives us exercise of functions conferred on any person. The DPA was amended in 2000, which also allows any disclosure of sensitive data necessary to prevent or detect an unlawful act.

The only problem here would be if the force believed that disclosure would prejudice their ability to catch the wanted suspects. For the third time, if this is the case, Data Protection is not what they are worried about. They may have good operational reasons not to want to disclose, but they are choosing instead to hide behind Data Protection, which has the dual problem of making them look like politically correct idiots, and damaging the reputation of Data Protection which, as I have demonstrated, can easily be used to justify the disclosure. It took me 30 minutes to write this, and I would happily use it as a justification to disclose personal data; the only reason not to would be an operational reason, and FOI provides much better exemptions to protect the integrity and effectiveness of police investigations.

The only possible explanation I can think of for why the police cling to this idea that DP is a barrier to disclosure is that someone is feeding them terrible advice and guidance about how DP really works, and nobody is willing to stick their necks out and question it. This paints a terrible picture of the information rights culture in policing, and someone needs lay down the law as a matter of urgency.

 

A Company of Wolves

In November 2015, the Managing Director of Wolverhampton Council, Mr Keith Ireland, gave his considered verdict on Freedom of Information:

The vast majority of requests come from media across the country, be that the BBC, local media, or media in general. They come from people who are out to create trouble for councils and students who are too lazy to do their own research. Others come from big companies who can’t be bothered to look up the data and want to know when contracts are on for re-evaluation. It is a really costly exercise. The original principal (sic) of FOI is not what is happening in reality.

Although the council has previously estimated that it cost them £199,200 to process last year’s FOI requests, Mr Ireland told his council’s scrutiny committee that the cost was more like £500,000.

Mr Ireland is no stranger to the expensive burdens of running a modern local authority or FOI requests designed to make trouble for councils. In July 2011, while he was acting as an interim Big Cheese at Northumberland Council, an FOI request made by a local councillor revealed that his services had cost the council £131,600 in six months, a rate of £1175 per day. It’s possible that the consultancy firm Gatenby Sanderson (currently recruiting the new Information Commissioner) might have trousered some of that money, but Mr Ireland was apparently not pleased by the revelation, sending a “scathing email” to the councillor in question.

Mr Ireland is clearly keen for a debate on the costs of council activities, so I decided to dust off a favourite old FOI request – how much money does Wolverhampton spend on FOI staff, and how much does it spend on PR? FOI and PR are a good match – both are concerned with delivering information to journalists and the wider public, both are delivered by a small core of dedicated staff, but involve a huge variety of council officers on occasion, including senior officers. There are two main differences: FOI is statutory and PR is not, and while many happily participate in PR (here’s Mr Ireland involved in a completely pointless photo-op marking his appointment at Wolverhampton), they resent FOI.

This is what I asked for:

For the most recent financial year for which figures are available, the total number of staff working on public relations and communications, and the total salaries paid to those staff. I do not want to request a breakdown of the figures per member of staff.

For the most recent financial year for which figures are available, the total number of staff working on freedom of information, and the total salaries paid to those staff. I do not want to request a breakdown of the figures per member of staff.

You can pick apart the way that I phrased it, but one thing you cannot deny: the two questions are the same. However you interpret the first question, you must interpret the second one in the same way. FOI and PR are not done simply by those who have FOI or PR / communications in their job title. All sorts of people get roped into both activities – the Leader of the Council will even stand outside the Council offices to shake Mr Ireland’s hand. So even if you read that question and think “I have to tell this guy about all the extra work FOI involves, even though it’s not what he’s asked for”, you’d surely have to think the same for the PR question.

There are two possible answers; either Wolverhampton gives me the total salaries of the PR staff and the FOI staff, or they assume that I want to know the total cost of both activities, given that I have asked for both activities in exactly the same way. It would be really weird if they gave me the total salaries for the PR people, but made an assumption based on absolutely nothing in my request that I wanted the total cost of FOI compliance.

But that is what they did.

The PR answer was:

For the period 2014/2015 there were nine people working on public relations and communications with a combined annual salary of £431,062.

But the FOI answer was

The total estimated cost of responding to Freedom of Information (FOI) requests in 2014/15 was £490,000. This comprises an element of process management and administration and is based on six people working on FOI requests for a percentage of their time. This figure also comprises an assessment of respondent time across the organisation based upon the number of requests received last year (1245) broken down into categories of complexity; but does not include any costs associated with Councillors or Strategic Directors.” Several paragraphs follow about how they cannot be any more specific about the total costs for all the process management and administration I didn’t ask about. The effect, needless to say, was to ensure that the FOI figure was higher than the PR figure, and perhaps coincidentally, it was remarkably close to the £500,000 figure brandished by Mr Ireland.

Needless to say, I asked for an internal review, pointing out that they hadn’t answered my question, and asking why it was that they had approached my two identical questions in two completely different ways. I didn’t expect them to say “We deliberately massaged the figures so that you wouldn’t be able to say that our Managing Director moans about FOI while spending double on PR”, though that would have been fabulous. Instead, I was told that the Council assumed my “focus” was on the “total cost of overall compliance with the provisions of the Act“. The reviewer said that “the actual answer to your query based upon your most recent email” was £242,280, a little under half the figure for the PR staff. The implication that somehow they only realised what my original request meant when I explained it to them bears no scrutiny at all.

If I had wanted the total cost of overall compliance with FOI, I would have asked for, I don’t know, the total cost of overall compliance with FOI. I asked about staff “working on freedom of information” – even if an estimate of the total costs of all the people who might get involved in FOI was available (an estimate I wouldn’t handle with gloves on), it was plainly not what I had asked for. If there had been any doubt about what I wanted, they could have asked for clarification at the outset, something which the reviewer begrudgingly acknowledged when I emailed them again.

There are various arsehole things I could do at this point – complain to the ICO, do a meta-request to see all of the correspondence that led to this,  dig deeper into how the additional £247,720 was calculated, or even ask how much it cost to stage this surreal crossover of weather warnings and football mascots – but I have my answer, so I am done. As is usually the case, PR is given a higher priority in Mr Ireland’s council than FOI, so I don’t care what he says about FOI and neither should you. PR is what the organisation wants to tell you; FOI is what you want to know. FOI is the law. The only other thing that I can say is that he cares so much about the expense associated with FOI, maybe Mr Ireland should ensure that his Council answers reasonable questions first time round, rather than making people ask twice. Imagine the savings.

National insecurity

In all the furore over the announcement of the Government’s draft Investigatory Powers Bill, one detail caught my eye. The Daily Telegraph published an article by Peter Wanless, Chief Executive of the NSPCC. Mr Wanless was keen that whatever else, we did not forget about the children:

We have heard plenty from groups extolling privacy principles and spies unveiling foiled terrorist threats, but let’s also hear the voices of thousands of children placed in jeopardy while the trade in abusive images continues to flourish

I don’t doubt Mr Wanless’ sincerity in combating the menace of child abuse and exploitation, but I found this a bit odd. How exactly does an article like this come into being? Did Wanless contact the Telegraph, keen to offer his support for the proposed legislation? Was it the other way around, with the Telegraph searching for an appropriately unimpeachable source to back up Theresa May’s plans? Or was it box number three: is it the Home Office who brought the article about, contacting Wanless and asking him to contribute?

You may disagree, but I find the idea of the Home Office persuading charity bosses to back Government policy in the press – especially without acknowledging it in the article – a deeply unattractive proposition. To find out whether this was the explanation, I made an FOI request four weeks ago to the Home Office, asking for correspondence between the Home Office and Wanless on the subject of the new bill.

A day before the deadline, I received an interesting email from the Home Office’s FOI team:

Although the Act carries a presumption in favour of disclosure, it provides exemptions which may be used to withhold information in specified circumstances. Some of these exemptions, referred to as ‘qualified exemptions’, are subject to a public interest test. This test is used to balance the public interest in disclosure against the public interest in favour of withholding the information. The Act allows us to exceed the 20 working day response target where we need to consider the public interest test fully.”

So far, so not much of a problem: this is an entirely legal move. The deadline can be extended for this reason. The one mistake that organisations often make at this point is not quoting an exemption, as if the public interest test floats free. But this is not what they did:

The information which you have requested is being considered under the exemption in section 23 (1) of the Act, which relate to information supplied by, or relating to, the bodies dealing with security matters.

The first thing to say is that this response appears to confirm that the Home Office has been in correspondence with Mr Wanless about the bill, which is interesting enough in itself (no correspondence, no need for an exemption). However, there are two more interesting elements. On the one hand, the response suggests that the correspondence contains information provided by the security services. Given that Wanless’ article is effectively a PR exercise, this is remarkable, if not scandalous and appalling. On the other hand, Section 23 is not a qualified exemption; it is an absolute exemption and has no public interest test. Either the Home Office don’t understand FOI properly, or they are just spouting legally inaccurate bollocks to avoid responding to my request on time.

Ever keen to help, I emailed the Home Office to point out that Section 23 is an absolute exemption and to enquire whether they in fact meant Section 24 (which applies to national security issues more widely, and does have a public interest test). With remarkable speed, the Home Office replied. I was invited to disregard the original email, and provided with the following explanation:

We apologise for the delay in sending you a substantive response. We always aim to respond to requests within the statutory period under the Freedom of Information Act (FOIA). Unfortunately, due to pressing business and other Ministerial priorities, it is not always possible to do so, and in this instance, we regret that we have not been able to respond within the statutory period.

What to make of it? Is it still reasonable to assume that the Home Office did put Mr Wanless up to it? Am I the first person to receive the phoney Section 23 letter? If they are going to delay replying, doesn’t the Home Office care enough to at least pick an exemption with a PI test, or just go for the old Dransfield Vexatious routine? At the very least, I think it is reasonable to assume that the Home Office is not really considering the use of an exemption, and is merely stalling on what might be an embarrassing answer. If there was a genuine exemption at play, they would have corrected their mistake in the follow-up. If they really did think Section 23 applied, I would have got a refusal.

Whatever happens next, reader, I have a feeling it will be worth looking out for.