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.

Don’t ask, don’t tell

As a secretive committee of slightly unappetising characters attempts to cut the FOI Act down to size, the voices ranged in favour of the legislation is bewilderingly wide, from The Sun to Reprieve. Relatively few people have put their head above the parapet to put the case for less FOI, but one brave example is Paul Greatrix, the Registrar of the University of Nottingham. Admittedly, Mr Greatrix doesn’t have much to say beyond a list of requests that he feels were inappropriate, along with the inevitable reference to Tony Blair’s regrets about introducing FOI in the first place, but nevertheless, it’s a rare and so notable experience to see someone properly giving FOI a kicking.

I feel some sympathy for the secrecy brigade, as Blair is one of the few well-known names willing to repudiate FOI in public. When the only people you can pray in aid are Jack Straw, David ‘furring the arteries’ Cameron and the nameless Foreign Office civil servant who thought that FOI was ‘sand in the machinery’, it’s not easy to find an acceptable champion to rally behind. For myself, if the best you’ve got is a shop-soiled ex-PM who earns his living advising various unpleasant dictatorships, you might be better looking for some hard evidence instead of celebrity endorsements.

It gets worse. Greatrix invites the reader to sympathise with his frustration at a list of requests which “makes you question the benefits of this particular piece of legislation”. There are a few niche ones: I can’t imagine that the answer to ‘Number of ice cleats bought over 3 years and number of accidents due to icy/snowy conditions’ echoed resoundingly through the East Midlands. The number of registered library users is equally unlikely to rival to MPs’ expenses or the NHS Risk Register in terms of its significance.

However, every other request on his list is a matter of some legitimate interest, and many of them would be of genuine concern to students, staff and the wider public. Greatrix cites a litany of spending choices that he does not want people to ask about: electrical work, art for university buildings, Christmas parties, garments (who for and why?), and buffets and “banquets”. There is a debate about whether Universities should be subject to FOI given that they are not wholly funded by the public sector, but as successive governments have increased the amount paid by students for their university education, the idea that what that money is spent on should be off limits is ridiculous. I’m not suggesting that universities shouldn’t buy art or have Christmas parties – but why would it be inappropriate to ask how much was spent on them, or on gowns for senior staff?

The role of a university registrar normally involves the management of student records, so the list of shame also includes an applicant who had the temerity to ask about the University’s compliance with Data Protection subject access timescales. Needless to say, Mr Greatrix also objects to people asking about the number of FOI requests received, and whether they were dealt with on time as well.

Universities are supposed to be places of study and research where ideas are explored and tested, so there is a double irony in the fact that people apparently shouldn’t ask which websites have been blocked by the University – ‘don’t ask us about the things we don’t want you to look at’ doesn’t  sound like a way of encouraging the kind of debate for which universities are supposedly famous, but maybe I’m just old fashioned. He also seems to against revealing the costs of catering to religious groups of several different kinds through the provision of prayer rooms and chaplaincy. As an atheist, I am amazed that legitimate questions about how religious groups are treated are supposedly off limits.

Perhaps most surprising of all, essential information about the relationship between the university and students is – according to Mr Greatrix – not fit for disclosure: examples include drug testing of students before exams, legal action taken against student protestors and astonishingly, the number of examination scripts lost over 5 years plus resolutions and compensation. It is here that I can wholeheartedly agree with one aspect of the piece: I do not think that people should be using FOI to get access to this information because I think the University should be obliged to publish it.

Remarkably, Greatrix even wants to keep the number of deaths on University property a secret. I’m not suggesting that there should be deaths league table for universities, but then again, I’m not going into tens of thousands of pounds worth of debt to attend one.

Many FOI officers will look enviously at the final flourish of Greatrix’s piece – the hilariously low numbers of requests that his university receives and which have prompted his complaint (a positively satirical 52 in 2005, rising to the adorable less-than-one-per-day that was received in 2014). The other remarkable feature of the article is that most of the cited requests are for hard facts that will either exist (and so could be found and disclosed) or which will be spread across the institution in bits, and so a competent FOI officer would probably be entitled to refuse as breaching the cost limit. I don’t believe that a single request would be subject to an exemption. None of them represent the real difficulty of FOI – the trawl for emails, notes and frank internal discussions that (although I think should be released) are clearly more of a challenge.

Of course, I will probably be dismissed as being part of the “vested interest” or FOI ‘salariat’ for being rude enough to earn about 10% of my living (and falling) from FOI courses. I’m happy to be pushed to the sidelines when every national and local newspaper is united in FOI’s support. In the meantime, and not for the first time, I would like to draw Mr Greatrix’s attention to the famous Streisand Effect, whereby trying to keep something secret makes it better known. FOI has an equivalent phenomenon, in that those who complain most loudly about answering FOI requests tend to get nothing but more FOI requests. I will not be troubling the University with any questions, but I would be surprised if others do not pick up the gauntlet.

The price of everything

Just as the switch of FOI ownership from the Ministry of Justice to the Cabinet Office happened on a quiet Friday, the government’s latest salvo in its war on Freedom of Information is similarly unheralded. The Ministry of Justice has quietly announced a consultation into changes to fees for appeals to the Information Tribunal. They are summarised (and I first heard about them) in this post on the Panopticon blog. Put simply, it will cost £100 to apply for an appeal, and £500 to get an oral hearing.

Fees for appeals favour organisations. They are biased against the public interest. They are an idea dreamed up by scoundrels with something to hide. They should – they must – be opposed by anyone who believes in holding government to account. The ICO makes bad decisions, and applicants need somewhere else to go. For every misconceived appeal, there are dozen good ones.

There is a strong case to be made against this; Christopher Knight has made a good start, and I imagine other bloggers will pile in soon enough. I might well return to the subject myself. But earlier today, I rather quixotically tweeted that I would pay the £100 for 5 other people’s appeals every year if the measure went ahead. Much of what I say on Twitter is an exaggerated, overhyped version of my true self. However, on reflection, I realised that I meant it and I should do something to prevent myself from backing out. I don’t want this measure to go ahead but if it does, here is something I can do. I make significantly less money out of FOI training than some people think I do, both as a proportion and as a total, but nevertheless, I’ve made my living out of FOI and DP for 15 years, and I should put something back in.

Therefore, I make this personal commitment. Assuming that the fee to appeal is £100, I will pay for five appeals every year. Hopefully others will join me in this, and we can set up some kind of process to handle it, with reasonable criteria. Don’t get me wrong: this should not be necessary. FOI applicants without £100 to spare should not have to resort to charity. But we must not have a situation where poor decisions can only be overturned by the well-off. If this malignant gesture is not seen off, I want to put my money literally where my mouth is and defend the public’s ability to ask awkward questions. I’m not committing to backing oral hearings, especially on my own, as I’m sceptical about how much good they do and I’m not made of money. I can help five people or one with the same money; it’s not a complicated calculation.

I tweeted my criteria earlier, and though I may want to finesse them slightly, this is where I am at. I will fund the £100 application fee of five appeals as long as:

1) the applicant plainly cannot afford the £100 (I’m not talking about means-testing, just anyone who can make a good case)

2) the request is plainly in the public interest (i.e. not just banging on about a subject that only interests them)

3) the applicant is not a dickhead (innocent face)

Admittedly, this rules out a few high-profile applicants from the get-go (HI THERE!), but this is precisely why access to the Tribunal should not be governed by the whims of dilettantes such as myself.

In conclusion, therefore, I want to ask anyone who reads this blog to do two things. Firstly, as Christopher Knight’s blog as already asked everyone to, please respond to the consultation. Make a forceful argument about why this should not happen.

Secondly, if the changes go through, ask yourself if you have the money to spare to sponsor FOI appeals for those who do not. I am not so well-to-do than I won’t notice that absence of £500 in my bank account, but it’s a price I am willing to pay. Are you in a similar position? Will you help me to set up and run some kind of application process? This might sounds defeatist, but I would like the Ministry of Justice to know that if they pull this off, embarrassing appeals will still go forward. Government decisions will still be overturned. FOI will still work its awkward, inconvenient, disruptive magic.

If at any point, you decide you’re interested, let me know.

Hunting the snark

There isn’t any legal requirement to publish a clear public link, explaining how to make an FOI request, but it is obviously in the interests of both applicants and the organisation. The applicant knows where to go, and the organisation directs requests into the hands of those best placed to answer them properly. If there is any organisation that could be relied on to showcase its transparency, it would surely be the Information Commissioner’s Office. So how hard is it to find their FOI email address?

Start with the front page. Have a look. Go on.

Did you find it? I can find two ways to get to the ICO FOI page, and both of them take four steps. If you’re lucky, you guess that the link is in ‘About the ICO’ at the top of the page.

Page 1 copy 2

Then you choose ‘Our Information’, because it’s really obvious, right?

Page 2 alt

Now you’re on a roll. On the next page, they actually mention requesting information. They don’t actually say ‘Make an FOI request to us’, but really, is it good taste to say ‘FOI’ in mixed company?

Page 3 copy

Yes, it’s on the far side of the page, but I’m here. I can see it. I can almost taste it. Except even when I click on ‘Request information from us’, I have to read THE WHOLE BASTARD PAGE TO GET THE EMAIL ADDRESS.

Page 4 copy

BONUS SECTION. If your psychic powers deserted you, and you didn’t guess that it was in ‘About the ICO’, there’s another way in. It starts ‘Contact Us’ right at the bottom of the front page, then ‘Access information about us’, then the last two pages as before.

Page 1 copyPage 2 copyPage 3 copyPage 4 copy

I could have used What Do They Know, but that requires me to have specialist knowledge. It’s not a household name, not yet. What does that leave me with? Some FOI experts are a bit sniffy about the tweeted FOI request. I don’t agree with this on its own terms – many people increasingly see Twitter as an email alternative, and if an organisation chooses to open up the channel, they have to expect FOI requests. But if a public body makes it that hard to find their official email address for FOI requests, they only have themselves to blame. I tweeted the ICO last week to ask them a question which they failed to answer, which is how I came to be looking for their email address. Ironically, if they had just given me a quick tweeted response, they wouldn’t be dealing with the much more detailed request I ended up making.

Shame

In the flood of positive PR for Freedom of Information’s 10th anniversary, a piece appeared in the Manchester Evening News that shows a possible downside of the legislation. The MEN is my local paper and the main hospital in the story is the closest to my house, but I didn’t notice it – it was highlighted on Twitter by Dr Ben Goldacre and then to me by Sarah White.

The story concerns individuals who make multiple visits to A&E departments, and in particular, the revelation that one person went to A&E at Wythenshawe Hospital more than 100 times in an 11 month period in 2014. Several individuals – including a child – are mentioned, including the number of times they attended and the hospital in question, although the reasons for attendance are not revealed. The information was obtained using FOI.

An (unnamed) spokesperson says: ““Due to patient confidentiality, we would not comment on individual cases” but the problem is, they already have commented on individual cases by releasing data at an individual level. Goldacre’s concern – encapsulated in a comment he put on the story – is that by releasing the information and facilitating comments, these individuals are being exposed to unkind comments from strangers. As one of the other (unnamed) spokespersons observed, one of the likely reasons for multiple A&E attendances is mental health issues. Imagine being the person who went to Wythenshawe 116 times last year, and reading your story, reading comments about what you have done being ‘disgraceful’. Admittedly, the MEN’s handling of the story isn’t as hysterical as it would be in the Dailys Mail or Express, but how long will it take for them to pursue a similar story?

What happens if the parents of the kid mentioned in the story realise that it’s their family who are the “A&E frequent fliers“, draining the resources of “embattled” local hospitals? What happens if, as a result of the shame (which I suspect is the intended effect of this story), they don’t take their kid to A&E next time? What happens if the alcoholic, the self-harmer, the domestic violence victim, the anorexia sufferer – what happens if one of them knows or suspects that they are one of the frequent fliers, and then they don’t attend when they need to?

I live in the same postcode as Wythenshawe Hospital, I frequently drive and cycle past it, and several people that I know and love have been treated there. The ‘frequent flier’ could be one of my neighbours, someone who shops at the local supermarket; if I wasn’t so resolutely anti-social, I might even know them. It’s not likely that I would be able to identify them, but University Hospital of South Manchester NHS Trust (UHSM), the public authority that runs Wythenshawe and answered the FOI request, have consciously set those hares running to make a point about the over-reliance on A&E. That woman who always has an ambulance outside her house, that woman who is always down at A&E, I bet it’s her.

I am about to fall into the worst FOI trap, one I mention every time I run an FOI training course. It’s almost impossible to say that any request is an abuse of what FOI is intended for, because FOI is not intended for anything. It has no purpose clause, nothing to say what you’re supposed to use it for. If the Manchester Evening News want to try to use it to get a quick headline at the expense of vulnerable people, they’re absolutely entitled to do so but they shouldn’t get the information. And here I jump into the trap: FOI is not for this. FOI is not there to expose citizens, it is to expose the organisations that serve them. We need to know that A&E departments are run properly, that the managers responsible for them ensure that services are available so that people are not reliant on them when they should be elsewhere in the NHS system. However, exposing civilians to the glare of publicity is wrong and moreover, unnecessary.

I believe that the likelihood that the individuals cited in this story may be identifiable to their friends and neighbours, and as such, the release of their personal data is unfair – UHSM should have used Section 40 of the FOI Act to refuse to disclose this information on the basis that to do so would breach the Data Protection Act. I also believe – as Ben Goldacre said – that disclosure is likely to lead to adverse comment, and so Section 38 of FOI (which prevents disclosures that would endanger physical or mental health or safety) should also have been used to refuse. No matter how difficult and expensive some of these people might be, exposing them to shame and possible identification is a disgrace. It should not have happened.