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.

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.

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

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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?

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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.

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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.

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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.