A very long engagement

Tim Kelsey’s appearance on the Today programme was not illuminating. No compromise, no acknowledgement that the process has been badly handled, and the plan to slip leaflets about the process in with the pizza menus was on the advice of ‘competent marketing agencies’ (the sound you just heard was the launch of an FOI request about who they were and what they said). It must be nice to make such a fantastic hash of your job, and be capable of thinking you’re still a winner.

From the perspective of someone who is uncomfortable with the care.data process, I would have been happy had he promised a proper, personally addressed opt-out (which is better than what we have now). I would have been even happier had he promised consent. I wouldn’t say for certain that a fair version of care.data is impossible but I don’t think one will ever be offered. I doubt NHS England wants to spend the money on sending personally addressed letters to everyone, and they don’t respect their fellow citizens enough to choose consent, so I’m actually happy that Kelsey is sticking to his guns. Because we’re not going to get a fair, democratic version of the system, I’d rather he keep infantilising the public. This tactic has already led to two delays –  a third try at the same patronising “engagement” will surely kill the scheme off forever.

However, one thing struck me about the interview. Justin Webb asked Kelsey the straight question of whether a letter would be sent to every affected citizen. Kelsey said that all options were on the table, but was keen to plug his ‘Get hip with the 21st Century’ bluster about direct mail not being the right way to communicate. We’re using the Vulcan Mind Meld, Grandad. On the basis that Twitter has hardly been a roaring success for the care.data campaign (look at the #caredata hashtag if you don’t believe me), I wondered whether there might be more to Kelsey’s statement than panicked airtime filling. If so, what else is he planning, because I think the expensive letter option is the only game in town?

It’s entirely possible that NHS England has no plans to contact citizens directly at all. I predict posters, the reappearance of the NHS smurfs in the cheapest conceivable TV ad breaks, or adverts on radio stations I don’t listen to because I am old. But let’s assume that Kelsey and NHS England are thinking about some kind of direct contact. What are the options?


Writing to every citizen directly would be more or less legal in Data Protection terms.  Assuming that NHS England has a reliable source for every person (not every address) in England, I believe that contacting everyone would be lawful and fair, even if they loaded the correspondence with propaganda. This is partly because Data Protection has its limitations, but also because there’s nothing in the DPA to say that you can’t contact people unless you have their permission, even if the correspondence is marketing. Unless NHS England sends everyone a bald postcard that says ‘we’re taking your data for research, here’s your opt-out’, it’s highly likely that the correspondence would be marketing. The ICO’s definition of marketing is far wider than simply the offer for sale of goods and services, but the DPA does not prevent an organisation from sending unsolicited marketing by post unless the person has used their Section 11 data protection right to opt-out.

Legally, I think that’s NHS England’s only option for direct contact.  It is inconceivable that if they are going to pay to contact us all, NHS England would just provide a bald statement of the facts. They would (and you might think they are entitled to) provide the reasons why care.data is a good thing. I believe this fits solidly into the ICO’s definition of ‘promotion of ideals’, which makes post their only legal option.


Automated calls are universally loathed as a form of marketing, so I’m certain that a scheme as cack-handedly managed as this one will hover over the option of making them. Automated calls are much cheaper than live calls, but to make them, you have to step wholly outside Data Protection. The Privacy and Electronic Communications (EC Directive) Regulations 2003 (usually rendered as PECR, which you pronounce ‘pecker’ in order to get cheap laughs) state in regulation 19 that an automated marketing call can only be made if the subscriber (i.e. bill-payer) has “notified the caller” that they consent to receiving the call. That means explicit, opt-in consent for automated calls from NHS England. Nothing implied or inferred – they need active specific consent for automated marketing calls, or they can’t make them.

EMAILS (and as it happens TEXT MESSAGES)

The business sector did a smart lobbying job way back when PECR was drafted, so it is legally possible to send unsolicited business-to-business marketing emails, because PECR treats corporate subscribers (effectively organisations and their email addresses) differently from individual subscribers (i.e. an email account of any kind used solely for personal, home and recreational purposes). But for those individual subscribers i.e. you at home as a regular person, Regulation 22 has bad news for Kelsey’s 21st century engagement. The same rules apply – an active opt-in is the only option. The ‘Interpretation’ section of PECR makes clear that a text message is the same as an email, so the same rules apply – active opt-in. Even if NHS England can get hold of email addresses or mobile numbers (or exhort GPs to use the information they have), it is legally impossible to send messages about care.data unless they have active consent, or the messages are not marketing. And they will be marketing.


I assume that live calls won’t be an option because they would be prohibitively expensive. However, just in case anyone is wondering, NHS England would have to screen all calls against the Telephone Preference Service list under PECR Regulation 21, ruling out millions of people (or making calls to them illegal).

Of course, these rules are routinely abused by Green Deal and PPI pests. The ICO’s efforts have been rather dismissively rebuffed by the First Tier Tribunal, so we await the Upper Tier to see whether the existing PECR rules can be properly enforced. But the difficulty of enforcing PECR does not grant NHS England permission to adopt the tactics of the snivelling spam-monger. PECR does not have public interest get-outs or exemptions. It applies to communications about care.data made by electronic means because they will inevitably be a promotion of NHS England’s ideals.

Of course, I may be way off. It’s entirely possible that the plan is for more soothing reassurance. It’s equally possible that care.data is dead, and nobody is willing to admit it yet. Given their stewardship of this so far, I doubt NHS England are above claiming that any contact would not be marketing, and going on a spam frenzy. The ICO – permanently on the back foot over care.data – would need to slap that down. But the Royal College for General Practitioners have demanded direct contact with patients, and it’s clear that their intervention (along with the BMA) has been decisive. Whatever options are on the table, NHS England does not have the legal consent necessary to contact patients by electronic means, even if they can get the data to do it. It would be illegal.

Time to warm up the franking machine.

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?