Signifying nothing

I was an FOI / DP officer in local government for the first five years of FOI’s operation, and like everyone else in the field, I got used to spotting trends – certain topics would come up again and again, certain requests would follow certain events. Of course, I also got used to certain names – journalists from the Mirror, the Telegraph, and the Sunday Times, and activists / staffers from the opposition political parties. Reading an old article by the Bureau of Investigative Journalism about Michael Gove’s special advisers this morning, I was struck by how many names I recognised from those requests.

There is nothing remotely sinister about this. In opposition, the research departments of both the Conservatives and the Liberal Democrats (as well as some campaigning MPs and their researchers) made enthusiastic use of FOI, and so they should have. This is one of the things that FOI is designed for – to allow access to unpublished information so that authority can be questioned and challenged. The political motive is irrelevant. When the two coalition parties eventually find themselves in opposition again, they will use FOI to the same ends. Presumably, in those places where they are in local government opposition, they still do. Anyone who complains about this is naïve to the point of stupidity – oppositions oppose, and they will hunt out useful and inconvenient stories wherever they can find them.

I point this out not to criticise Gove’s minions for their use of FOI – I commend them for it. My point is to suggest that the Education Secretary’s current attitude to FOI and the way his circle have apparently tried to circumvent it is hypocritical and counter-intuitive. The evolutionary end of Gove’s three-year war with transparency and accountability is the public letter he wrote this week to the Information Commissioner, throwing in the towel over his attempts to allow religious and other groups to apply to run free schools in secret. Gove’s petulant missive was big on claim: “We are aware of personal attacks on individuals who simply want to improve educational standards and choice locally” and “We have been told of instances where teachers have lost their jobs simply by virtue of their association with a Free School application”. But it was short on detail. A few years ago, Gove managed to get massive headlines about unfair adoption practices based on a story that turned out to be an anecdote passed on by a third party which no-one in his department had checked. The language here is interesting – ‘We are aware’ and ‘We have been told’ are careful phrases perhaps intended to give Mr. Gove plausible deniability if his claims can be proved to be scaremongering bollocks.

If Gove wanted to make a public interest argument against disclosure of free school applicants, real evidence of personal attacks and what sound like potential illegal sackings of teachers would be gold. The thrust of Gove’s letter is that a legal and legitimate policy is being undermined by unfair and possibly illegal activities that will be exacerbated by the disclosure of the applicants. I have no evidence that Gove and his advisers have invented or exaggerated the mischief, but if these cases are real, it is very hard to understand why he is ducking the opportunity to present evidence of them to the Tribunal. It is even harder to understand why there is not currently a huge public effort to get the sacked teachers reinstated, and their tormentors punished. After all, it is not illegal to be involved in a free school, so why would Gove tolerate such appalling treatment and what is he doing to stop it, other than whining about nasty Chris Graham?

In a calorific interview with Jan Moir in the Daily Mail, Gove described himself as a Marmite politician. The one time I tried Marmite, I vomited so hard and for so long that I burst blood vessels in my nose, so I think I know what he means. But it does nothing for those who are not his acolytes that he tries to suggest that an independent public servant is somehow opposing or assisting those who oppose government policy merely by doing his job. We already know that whatever Gove used private email for, he didn’t have a sufficiently solid case to test its legitimacy at the Tribunal. We know that his Department has a sufficiently poor record on responding to FOI requests that they’re being subjected to monitoring again by the ICO. There are plenty of issues where Gove and transparency seem to have an unfamiliar relationship: sales of school playing fields, headteacher’s salaries, and his own policies to name three. Even Gove’s online cheerleaders won’t use their real names (whoever actually runs the  @toryeducation Twitter account, they are oddly ashamed of being associated with it in public).

The important thing about Gove’s letter is that shows that posturing and insults are no substitute for the rigour that FOI refusals require. The argument that the public have a right to know who wants to run schools in England is a solid and obvious one to make, and if Gove and his adjutants don’t have anything sufficiently concrete to counter it, then they have to accept defeat and move on.  The letter simply shows that Gove has nothing else – on this issue at least – but bluster. It doesn’t matter what his letter says or what bad faith it attributes to others. On the matter of FOI principle, the Secretary of State has come up empty.

The other important thing to note about Gove’s battles with FOI is the legacy he has left for those who follow him. As I said at the start, the same people that are allegedly trying to get around FOI originally found it valuable. By relentlessly exposing the Information Commissioner’s lack of appetite for taking on recalcitrant Government departments, Gove has taught the Labour Party a valuable lesson for the next time they are in power. The Information Commissioner will not take enforcement action against Gove’s department despite endless justification. I believe that the DfE are unable or unwilling to comply with a legal demand to get their FOI house in order, and issuing an Enforcement Notice would inevitably result in a confrontation the ICO does not have the stomach for. Chris Graham is the most effective Information Commissioner so far and he is a very smart communicator but  his office seems to struggle with properly enforcing FOI and Gove has proved it. One day, the coalition’s successors will lose an election (they didn’t win the last one), and once again, they will want to use FOI for wholly legitimate campaigning activities. However much Labour might now be trying to argue the case for FOI, they brought it in and then their Leader spurned it. Gove’s disdain for FOI may end up pulling up the ladder the next time his party needs it.

Process

Before I begin, let’s consider the great David Cameron Transparency Diet:

BEFORE

“It is our ambition to become one of the most transparent governments in the world.”

AFTER

We spend, or the system seems to spend, an age dealing with freedom of information requests which are all about processes and actually what the public or the country want to know is how much money are you spending, is that money being spent well and what are the results.”

One of the many nails in the coffin of my interest in party politics is the way in which all politicians rail against questions about ‘process’, and the way the last few governments have sought to pick and choose what they consider to be acceptable for transparency. The question they don’t have the courage or courtesy to answer is always about the way that they behave when not in front of the cameras. They want to pretend that their business is always high-minded, principled, decent – they don’t want us to see the shoddy, incompetent or mean-spirited moments, even though every organisation and process created by humankind contains a measure of all three.

This is the reason that I think politicians don’t like Freedom of Information. Because they can publish all the tractor production figures that they care to, but FOI not only allows people to ask not only for the inconvenient facts and figures that may have been buried, it also allows us to ask how things happened. It allows us to ask how things work, how they are achieved. It’s the process that interests me, because it tells me about the people who govern me. The internet tells me that I am wrong to think that Otto Von Bismarck said “Laws, like sausages, cease to inspire respect in proportion as we know how they are made”, but whoever said it, I think that’s the problem. Politicians need to believe that they are respected and respectable, and what scares them is being obliged to show their workings out. From big issues like the NHS Risk Register to eye-catching ephemera like how Cameron signs off suck-up texts to Rebecca Brooks, how things get done is just as important as what those things are.

To give you a tiny but perhaps instructive example: in February, the Secretary of State for Education Michael Gove gave a speech about adoption. Gove was himself adopted, and I do not doubt his sincerity in wanting to see the adoption process work more effectively. The thrust of Gove’s speech appears to be the need to protect vulnerable children from unfit parents, and the desirability of removing artificial barriers to adoption like the ethnicity of the prospective adopters. However, Gove added some texture with eye-catching examples of how adoption currently works, including the remarkable claim that prospective adopters had in one case been refused adoption unless they bought a kettle with a shorter electrical flex.

The media swallowed Gove’s anecdote uncritically – indeed, the Mail and Telegraph embellished it with a ‘ban’ that wasn’t mentioned in the speech. Of course, Gove is a former journalist, and I don’t think it’s cynical to suggest that the kettle-flex story was his way of getting a headline for what might otherwise have been a worthy but overlooked speech.

I’ve met many people who work on adoption and a relative was on an adoption panel for a long time – based on my experience, I couldn’t believe that such ludicrous criteria would be used to prevent people from adopting a child. And in any case, any adopter with any commitment would be down to Argos demanded the shortest kettle flex known to man rather than whinging to anyone else. The story was so lame, I assumed that Gove and his advisers had made it up. So I decided to make an FOI request to the Department for Education asking for the name of the council who refused the adoption, and whether any other criteria were used to refuse the adoption, on the assumption that this silly fiction would be exposed.

I was wrong: http://www.whatdotheyknow.com/request/kettles. I wouldn’t trust Gove on the basis that he seems to be a slippery customer, but the civil servant responding to my request has confirmed that the Department does know the name of the council concerned, and the word of a civil servant is good enough for me.

The DfE’s account is therefore that Gove asked his Adoption Czar Martin Narey for some examples to illustrate his speech, and the kettle flex example was one of them. So  a couple that have adopted five children are told that they could not adopt another until they change their kettle (or actually, the power lead on their kettle). This is such a big deal to them that rather than buying the new kettle lead and getting on with their life, they tell their story to a Government Adoption Adviser as an example of the iniquities of the adoption system. He thinks it is such a big deal that he cites it to the Education Secretary. And nobody thinks to check it out. Nobody wants to know the Council’s side of the story. There is no evidence that anybody in the DfE contacted the Council to check the accuracy of the story. Despite the fact that it’s significant enough to be used as a headline-grabber in a Cabinet Minister’s speech, the Department have a line of “not intervening” in individual cases, so they won’t actually do anything about it. So if the couple concerned invented or embellished the story, nobody found out, and yet if the story is true, nobody acted on it. They didn’t even write to the Council to tell them to buck their ideas up.

So this is the process. Gove uses a daft example that apparently hasn’t been checked out to get a headline that is irrelevant to the good points he was actually making. In doing so, he allows an impression to be created that the adoption process is haphazard and stupid, which is disrespectful to all the people who work on it. The story could be completely untrue, or completely partial. There could have been a dozen good reasons why this couple didn’t get an adoption approved, and this may have been the smallest of them. And by not contacting the council, there is no possibility of any such inconvenient fact coming to light.

So what Gove probably should have said was ‘I’ve been told this story but I haven’t checked it out so I don’t know if it’s true’.  I don’t think he would have got the same headlines.

This isn’t Watergate. I should have a better example (I’m working on one). The worst that can be said about Gove’s Kettle-Flex Shocker is that he is apparently not the kind of man who looks at a yarn like this and says “Really?”. If he had demanded that the story be stood up, I think that there would be some evidence of that in terms of emails, or letters, or something else. But nevertheless, the reason why I think the request was worth it, and why I think FOI causes some politicians disquiet is the fact that it gives the kind of healthy scepticism of which Gove seems bereft somewhere to go. We can get under the skin of things and ask awkward questions. Someone I trained last week said that her approach to email was to write every one in the expectation that it would end up on the front page of the paper. If politicians have nothing to hide from process questions, they have nothing to fear.

The Joy Of Text

Einstein said he couldn’t predict what weapons the third world war would be fought with, but the fourth war would play out with sticks and stones.  The direction of the FOI arms race is equally hard to predict. Tony Blair’s era in power gave us ‘sofa government’, a term coined to describe the informal, un-minuted approach to decision-making that he supposedly preferred. More recently, Lord McNally has scared us with the “post-it-note culture’, with vital information recorded in the most temporary of media, to be screwed up and dumped as soon as the decision is made. Given Government Ministers’ propensity for putting stuff in the wrong bin, perhaps 3M will produce Post-It pads made of rice paper, so the offending article can be swallowed and FOI thwarted for ever more. But after sofas and post-its, have we now got ‘Txt Gvmnt’?
In the wake of the DfE private email kerfuffle (I’ve downgraded it from a hoo-ha), I read a story about Boris Johnson using both private emails and text messages to get around FOI. It had never occurred to me that a text message would be covered by FOI. Had I ever thought about it, I would have said they were, but the scrappy and informal medium I always use as an example of how far FOI goes is the Post-It. I was therefore intrigued to find out whether Boris had been sending interesting secret texts, and whether anyone would try some sleight of hand to say that they weren’t covered. I nearly didn’t ask on the basis that Boris and the GLA are local government, and I generally operate a ‘don’t shit where you eat’ approach to my FOI requests. But if Boris was trying to keep things out of sight, the possibilities were endless and if nothing else, here was the opportunity to see how the Mayor renders ‘cripes’ and ‘spiffing’ in text speak. So I asked for the following;
the content of any text message sent or received on official business between 1September 2011 and the present day (24 September) and still retained as at the time of this request by any of the following individuals:
  • the Mayor of London, Boris Johnson
  • Any of the deputy mayors
  • Guto Harri, Director of External Affairs
I should confess that I didn’t realise Harri had left the BBC until I saw his name on the Mayor’s website and I threw him in on a whim. I hope the aftermath book he will inevitably write is as good as fellow ex-BBC turned spinner Lance Price’s was. If Boris is anything like the Boris of the popular imagination, it may be a bit more Hogarthian.
They turned me down on cost grounds. It’s difficult for me to say that I am disappointed with the reply because firstly, it contains one of the features of an FOI response that I always used to enjoy when deploying it, i.e. the Show-Stopping Estimated Cost of Response. In this case, the SSECoR was a whopping £2,550.  My rule of thumb when trying to make this technique convincing was always to aim for a grand and while I am slightly sceptical about the idea that it would require the claimed 3-4 minutes per text to cut and paste all the messages, I accept that it would be a horrendous task, well over the cost limit.
Which leads me on to the second thing about the response that didn’t disappoint. The admirable estimate was based on the fact that “there are approximately 1,530 messages relating to GLA business sent and received by the people specified in this period (based on an average of 81 text messages per working day and 20 text messages on each Saturday and Sunday)”. My request covered six people, so the number is nowhere near as daft as it sounded to me when I first read it. I know someone who can send 81 text messages in an hour (many of them admittedly the electronic equivalent of finger painting). But nevertheless, that’s a lot of correspondence between important people doing important jobs – remember, my request explicitly asked only for texts sent for official business, so anything about lunch arrangements or ping pong would have been excluded from the calculations. Texts sent and deleted before my request was made would also be out of the game. I’m clearly very naive, because I didn’t anticipate there being enough messages for my request to fail on cost grounds. 


UPDATE: The estimable tweeter @FOIMonkey, who understands the black arts of mobile technology, advises me that the estimate may not be entirely realistic (AKA “nonsense”), so I have put in an internal review on principle.


And there’s the payoff.  If you live in London, a fair amount of official correspondence about how your city is governed lives only on a phone, and may be being generated only with a thumb (OK, I can’t imagine Boris doing that insane teenage texting thing, but you never know). Have I finally reached the age where the way things work inevitably seems trivial? Will I start to use the phrase ‘new-fangled’? Or should we have concerns about the people who govern the so-called engine of our economy using their phones to run the place? What important information might reside in that most transitory of places? And are they using Twitter to run London as well? (NB, of course they bloody are)
Full credit to the FOI people at the Mayor’s Office, they didn’t flinch. I didn’t get my shocking Boris text revelations because I asked for too many of them and was legitimately refused, not because of any ‘texts aren’t covered by FOI’ nonsense.  But think on this; up and down the land, there are enough people with iPhones, Blackberrys and intermittent common sense to make the prospect of what FOI might do with text messages more than interesting.  All it will take is for someone to work out a better question than the one I asked.
And for my next experiment, Twitter or BBM?

FOI Officers wanted for short survey

I’m currently writing a book, for which I need to do some surveys and interviews later in the year. To that end, I’m testing out some survey software. Moreover, the story that Chris Cook broke in the FT about private emails in Government last week is still, to my mind, one of the most fascinating FOI issues of recent months. The idea that government departments could go up such an obvious dead end is remarkable.

So, in order to serve both objectives, I’ve set up two surveys, one for central government FOI officers, and one for local government FOI officers. If I get a decent response, I might do other sectors. There are four questions, and you are not asked for any personal information. All I will get is statistics, and I won’t be able to contact you. I will use the statistics for a blog post, and only if I get enough for the results to be worth airing. It’s not scientific, and I don’t expect to draw any explosive conclusions. I’m just interested in what other people’s views are on private email and FOI.

Please don’t fill in the survey if you’re not directly involved in responding to FOI requests but your comments and tweets are welcome if you have anything to say.

Nudge Nudge Wink Wink

I like Michael Gove: like Eric Pickles, he keeps happy 1980s memories of Spitting Image alive just by having a face that, even in repose, looks like a caricature. But Mr. Gove has, as described in Chris Cook’s story in the Financial Times, apparently presides over a wrong-headed approach to FOI that shows once again that politicians and their henchmen would do well to learn how the damn thing works, if only to get around it properly.
As you no doubt know, the FT (http://www.ft.com/home/uk and register yourself) reports a series of emails showing Gove and assorted Spads resorting to Gmail to get around the embrace of FOI requests. Slytherin House immediately loses ten points even if the Department’s retort that Gmail was used only for political emails is true. Truly political emails (about party political matters) would probably be outside the scope of FOI and could be sent on the DoE system anyway. It’s what the emails were about that matters, not where they were, a situation which works both ways.
I don’t know which is worse – the apparent inability to accept the discipline that an inherently mobile and insecure mode of communication like email requires, or the ignorance of how FOI actually works. One of the ways in which an organisation can easily snooker itself under FOI is to see the information it ‘holds’ as being the stuff in the corporate email system, the formal files, the official record. FOI is much more slippery than that. It covers the post-it note, the pile of papers at home, the work-related email sent from your personal account. And if an organisation responds to an FOI with ‘not held’, and someone knows that emails or other information exists even in a non corporate system, it’s possible that a criminal offence has been committed. 
Dorothy Parker said that love is like quicksilver in the hand. Leave the fingers open and it stays. Clutch it, and it darts away. Email can be the same – the more you try to keep it secret, the more the recipients know they’ve got something working having and worth leaking. Look at the nudge-nudge-wink-wink emails that the FT is getting such good material from today. People in Government need to understand that FOI exists and it gets everywhere. They should respond to this by more mature, better-informed decision-making, and correspondence framed in a professional manner that stands up scrutiny. 

But if that’s too much for them, can’t they at least get better at hiding their secrets? Ever keen to assist, I end on five suggestions for better FOI evasion:

1) Stop governing at all – Belgium hasn’t had a government for more than 460 days, and they’re still brewing the best beer in the world. You’ve got nothing to hide if you’re not doing anything.

2) Roald Dahl wrote a wonderful story in which a frozen leg of lamb was used as a murder weapon, then fed to the detective investigating the killing. So take a leaf out of his book – write all of your most incriminating thoughts in piped jam on toast. The recipient reads the message, then eats the toast. 

3) Mission Impossible style exploding tapes (remember to switch off the smoke alarms) 

4) Write all government communications in Esperanto (bona mateno to all Esperanto speakers!)

5) Mime – it’s the future