Bad planning

A couple of weeks ago, the journalist Heather Brooke tweeted the following in respect of myself and another person:

Really, you two are starting to sound a little like trolls. Do I lurk on your feed & make continuous snide remarks? No

She doesn’t quite call me a snide, lurking troll but we’re close. If “innocent face”  is enough to get Lord MacAlpine going, then associating me with trolls (example: Frank Zimmerman, the man who threatened Louise Mensch and her kids ) is surely murky territory. Could I argue that Brooke’s comments tend to lower me in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally? Brooke is the hero of the MPs expenses case, the respected journalist and authority on FOI, the esteemed tutor of the next generation of journalists. I am just a tawdry freelancing consultant. Isn’t it possible that people might well give her comments credence because of her status as a respectable public figure?

So can I sue her for libel?

Of course not, it wasn’t libel. Brooke has a low opinion of me and these weekly mentions on my blog will probably only make it worse, but she is entitled to say I’m a troll. She can say worse things and has every right to. She said it’s a shame I’m not a journalist, so maybe she already has. Brooke expressed a negative opinion about the fact that I fired critical responses to some of her tweets in quick succession. The question of whether I was simply disagreeing with her (my version) or deliberately misunderstanding her point (her version) depends on your perspective – you’re obviously free to see it her way, and given our respective respectability, you probably will. I don’t agree with her accusation, but my objection doesn’t make it libel. She didn’t accuse me of training the BNP, teaching people in how to breach the DPA and get away with it, or bribing officials to get training contracts. I haven’t done these things, and I would sue anyone who said that I did. Free speech protects our legitimate opinions even if they offend other people. However, it shouldn’t allow us to say anything, especially if anything is an unfounded accusation of a crime.

All this is by way of introduction to a doubtless unwelcome and unpopular contribution to the depressing resolution of the libel battle between the redoubtable blogger Jacqui Thompson and Mark James, Chief Executive of Carmarthenshire Council . Doubtless I will be accused of backing Team Goliath for not simply foaming at the mouth in outrage, but I cannot say my reaction is the same as most of the comments I have seen.

Much of the background to the case is like a riposte to my own defences of public sector workers. The idea that councils might fund or back libel actions for their staff in any circumstances is a disgrace. Public money is for public services, and if an officer is libelled and cannot afford to defend their reputation, they must blame our legal system or cruel fate. If Carmarthenshire’s Chief Executive accepted public funds to defend his personal reputation – even though this might have been entirely legal – he should pay the money back, as he can afford his own defence.

Moreover, all senior council officers must have a thick skin. I once dealt with a senior officer who did not want his salary disclosed because of fears his children would be bullied in the playground. He earned more than £100,000 per annum, and he was talking bollocks. Every front-line officer gets abuse from time to time and they just plough on, letting it wash over them. If you are not prepared to be called crap, incompetent, idiotic, stupid, moronic, selfish, or cowardly, whether it’s fair or unfair, you are not fit for management in local (or central) government, the Police, NHS, Fire or the rest of the public sector. Suck it up; it’s part of the job.

The most eye-catching element of the case is still troubling. Public meetings should be public places. Any restriction on filming, recording, tweeting or reporting of proceedings held in public by any person for any reason is an affront to democracy. I would include the courts in this (with necessary protections for witnesses and victims). No part of the UK, and no UK institution no matter how large or small should seek to restrict access to public proceedings, no matter what the circumstances. Any organisation that attempts to restrict coverage of public meetings – whether by professional journalists or by amateur bloggers – must be prevented from doing so. Any amount of blather from Eric Pickles disguises the fact that he has done nothing formal to protect those wanting to film or report council and other similar proceedings.

And finally, calling the police because a person is filming a public meeting and refusing to stop is ridiculous. From a purely tactical perspective in the Carmarthenshire case, it was disastrous. The people who called the police have forever ensured that this case will always be the innocent ‘armchair auditor’ against the overweening, something-to-hide establishment. Mark James won his case, but in the court of public opinion, he and his council will forever be associated with the image of an ordinary taxpayer being led away simply for wanting to report the truth, and they deserve nothing else for their poor judgement in making that image happen.

But free speech is not dead. The arrest of Jacqui Thompson for filming a public meeting is a free speech issue, and I entirely agree with her stand on that. However, this libel case was launched by Thompson and not the council. Ultimately it is about accusations of corruption versus claims of intimidation. If you haven’t read the full judgement and are going off the headlines, you should read it objectively now before you pontificate (I didn’t and I deleted tweets as a result). If you really can’t bear it, this detailed story in the Western Mail (HT: @NewsatTwm on Twitter) is very strong.

The daft arrest isn’t the decisive issue. Thompson sued Mark James, the Chief Executive, because he published a letter accusing her and her family of conducting a campaign of harassment and intimidation against council officers. James counter-sued for comments that Thompson made on her blog about perjury, dishonesty and corruption. If Thompson could justify her allegations of corruption, the comments on her blog and her actions in the Council chamber would be vindicated, and James’ comments about the campaign would probably be libellous. However, without anything concrete to back up the corruption claims, the position is reversed. If Thompson made serious and repeated accusations without evidence, she has libelled James and potentially others. No matter how outrageous the arrest was, it does not prove that anyone is guilty of corruption, or justify statements that cannot be verified. Thompson’s libel action against James is not made one tiny bit stronger by the unfairness of her arrest, and it was not an opportunity for her to be recompensed for the unfairness of that arrest. No amount of capsule sermonising from Nick Cohen changes this.

Even the sympathetic Broken Barnet coverage of the case acknowledged that Thompson “has perhaps made errors of judgement in some of the comments made in some of her posts” . But isn’t it more than that? In 2006, Thompson accused James and a planning officer of corruption and was sued by the latter for libel. She lost, and had to retract her comments and apologise in court – paragraphs 6 and 7 of the judgment – as well as agreeing to pay £7500 in costs (costs she later argued should be borne by the Council, a suggestion that I think is outrageous). Thompson made no attempt to prove that any of her allegations of corruption were true and defended herself solely on “honest comment”. Every decision and comment I have found on this defence include a variation on this quote: the comment “must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”. You cannot accuse someone of corruption without something concrete to back it up.

So consider paragraph 299 from the current judgement:

Mrs Thompson did not, when sued by Mr Bowen, attempt to prove that the allegation of corruption she made against him was true. She has never attempted to prove in court that Mr Bowen was corrupt. A defamatory publication for which there is no defence is unlawful. She accepts that she cannot prove that. She accepted during the trial that the HMCS letter bearing the Council’s stamps does not prove that the Council made any payment in respect of Mr Bowen’s libel action, and does not prove that he or Mr James, or anyone else lied or committed perjury.

At this point, I’m out. I can’t support Thompson if this is true. Corruption isn’t just a label you apply to those who you disagree with. Even if the corruption seems painfully obvious to you through experience of beating your head against a brick wall of bureaucratic numbskullery, impenetrable decisions, and people who just seem to have it in for you. Even with all that, corruption is not a loose or metaphorical word. Accusing someone of corruption is accusing them of a crime – taking or accepting bribes, committing acts of misconduct in public office, or perpetrating fraud. This is corruption. Unhappy FOI and Data Protection applicants, bloggers, letter writers and Local Government Ombudsman complainants throw around words like corruption and conspiracy as if all they need to justify their use is a deeply held conviction. Whatever the outcome of Jacqui Thompson’s libel case had been, flinging these words around is an abuse of free speech at best. The outcome of the case shows that the courts agree.

If accused of a crime, you are innocent until proven guilty. Evidence is weighed and sifted, and an objective decision made by a court. Journalists and bloggers can play a vital role in digging up evidence of crimes, in bringing them to public attention, and forcing the hand of the police and the CPS, but ultimately, it is the courts and not the commentators who make the decision of guilt. Without evidence, your strongest conviction is worth nothing and if you cannot keep it to yourself, you risk the wrong end of a libel suit. And now we see what that’s like.

Local newspaper journalism is dying; like most people, I believe that the internet including many enthusiastic bloggers will end up replacing it entirely. But Thompson Vs James must not be misrepresented as a threat to this. In her statement on the case, Thompson said this: “I believe this judgement has dire consequences for others who publicly scrutinise and criticise their local authority, including the press”.  I completely disagree with her. Nobody should feel that this case prevents them from scrutinising, criticising, mocking, or commenting on public affairs in the strongest possible terms. Get out there. Show why the decisions are shoddy, find the links between politicians and dodgy business, seek out the fraudsters, the hucksters and the bigots where they exist and show them for what they are.

But – and it’s a big but – do not accuse someone of criminal activity without something concrete. I don’t want to live in a society where allegations of criminality are made without being substantiated – that’s not free speech, it’s a witch-hunt. Nothing about this case puts the decision-makers and politicians in Carmarthenshire County Council in anything but a dire light, but I’m not paranoid enough to believe that Thompson was stitched up by the Establishment. She made accusations she couldn’t ultimately substantiate – even if they were true, she couldn’t prove it to the satisfaction of a judge. If she appeals and proves her claims to be true, refuting the idea that her campaign was illegitimate, I’ll be in a long queue to congratulate her. But she cannot win her appeal on the basis that the daft arrest was daft, or illiberal, or wrong. It was all of those things, but two wrongs do not make a right.

And if you want to call me an arsehole (guilty), a vile corporate stooge, a council apologist, a scumbag enemy of free speech, a self-hating blogger or even a wannabe journalist (not guilty), the comments section is below.

The Cabinet Office & FOI, A Retrospective, 2010-2011

As you know, FOI is under threat from a disparate coalition of interest groups, all of whom profess strong support for the idea of FOI and transparency in principle, but who object strongly when it applies to them. As I have already blogged, it’s the FOI equivalent of saying ‘I’m not racist but..” With friends like ACPO – who ask in their Justice Committee evidence for an absolute exemption for all investigations data, a charge for every FOI and vast restrictions on the time taken per request – FOI doesn’t need enemies.

However, the real cuckoo in the nest might be closer to the centre, with a more seductive and plausible message that could still plunge a stiletto into FOI’s back. Led by the Coalition’s answer to George Sanders, Francis Maude, the Cabinet Office wears what looks like a bulletproof vest when it comes to openness. Why, they’re the champions of Transparency, the sponsors of Open Data. One could mistake the Cabinet Office for a shining beacon of openness in the murky fog of secretive government. George Francis Maude promises a quantum leap in transparency and goes around the world promoting openness. He must be OK: in some of these photos, he’s rocking that smart jacket / jeans combo that says, I’m here for business, but a party’s definitely not out of the question.

But here’s the problem. Maude’s top-down Transparency (always capital T) is geared towards an open-source, re-use model which is intrinsically positive, but totally separate from the accountability / scrutiny aim of FOI. Transparency agenda is skewed heavily towards a technocentric, app-designing, economic model. It will probably create jobs. This is great and puts the previous government to shame. Public bodies who bleat about the commercial reuse of their data forget that the private sector pays its taxes and funds their activities. But this Transparency has little to do with the kind of transparency that FOI offers. Real (small t) transparency is about letting everyone come in and scrutinise what is going on. FOI should not be mediated, except by sensible harm thresholds like the public interest test and an even-handed regulator. If you see one of those, let me know. Maude is keen to order disclosure, but this is still the exercise of power by the elite. If you want to know something that the Coalition doesn’t want you to know or simply hasn’t thought of, Maude’s Transparency will not help.

Transparency could be used as a Trojan Horse to justify curbs on FOI. You don’t need FOI, we’ll be told, because look at these shiny Transparency jewels we’ve decided to give you. This will be a fiction. The point of FOI is that you get to ask about what you want to know, not what The Nice Man Wants To Tell You

In June 2011, the Cabinet Office signed an undertaking for the Information Commissioner, promising to make improvements to its approach to FOI. So let’s ignore the siren lure of Transparency and look behind it to see how the  openness champions deal with FOI. I have read all of the Information Commissioner’s Decision Notices issued to the Cabinet Office in the past twelve months. It’s a roll call of shame that spits in the face of the fine folk who work on Open Data and Transparency. You can read the highlights at the end of this post, and I encourage you to use the reference numbers to find and read some of the decision notices in full here.

Most of these decision notices cover requests received before that undertaking was signed, but all cover the period of the Coalition, when Maude and others were trumpeting Transparency and Openness like it was going out of fashion. They might claim it’s all change since the undertaking, but these requests are an insight into what the Cabinet Officer were doing while the Ministers were hyping their Transparency agenda. How could this all happen on their watch if their commitment to openness is real?

In 2010-11 (as before), the Cabinet Office routinely extended the time taken to consider the public interest test, and frequently missed its own distended deadlines. Applicants who made entirely legitimate requests were refused because their requests were said to have no serious purpose or value (and the ICO overturned these refusals). On several occasions, the Information Commissioner’s Office was forced to order the Cabinet Office to make a decision, in cases that had been running for many months.

Two issues are particularly damning. There are several cases where the Cabinet Office issued a formal refusal for data that they had not searched for, and which ultimately turned out not to be held. In other words, they’re saying no rather than actually looking for the information. Worse still, in numerous cases, the ICO remarks that the Cabinet Office has advanced inadequate arguments for refusals that they then have to overturn. In some cases, the Cabinet Office fails to respond to the ICO altogether.

The Cabinet Office has a lamentable track record on FOI – this could be explained in part by the outgoing Cabinet Secretary was outspoken in his criticism of the legislation and his belief that it should be restricted. However, the Cabinet Office appear not to have taken the Information Commissioner seriously either, which should be unthinkable. Nevertheless, by not taking formal enforcement action against the Cabinet Office, Chris Graham has gambled that asking them to sign an undertaking to comply with legal obligations will have the effect that dozens of formal decision notices issued since 2005 have not. He may have fettered his discretion on all future FOI enforcement – if he doesn’t enforce against this level of compliance, when will he ever do so? Who could possibly be worse? If he goes after a Parish Council with an enforcement notice, the circle will be complete – like DPA, the big fish swim away while the minnows get netted. But more importantly, if the Coalition try to argue that FOI is safe in their hands, that any changes are just to reflect the austere times we are all in together, that their Transparency is a worthwhile alternative, take a look at this list and decide what you think of that idea. We desperately need a more agile, more entrepreneurial approach to public sector data. But we also need the opportunity to ask awkward questions, and up to now, the Cabinet Office hasn’t even paid lip service to that principle.
  • FS50371317 (02/02/2012): the applicant asks for copies of unpublished photographs taken by named Cabinet Office photographer. Cabinet Office refuse on the basis of Section 36 (prejudice to the effective conduct of public affairs). The refusal is automatically invalid because the qualified person (who has to be a minister) was not involved. When the ICO investigated, they discovered that no such photographs were held, and S36 had been cited instead of actually searching for the picture.
  • FS50379301 (16/11/11): Applicant asking about minister’s meetings about setting up of statutory register of lobbyist asks for internal review on 8/11/10. The Cabinet Office do not respond until 20/4/11. ICO complains that Cabinet Office ignores repeated refusals to supply data to them so that it can consider complaint, and later remarks that no exceptional circumstances explain the delay in providing an internal review.
  • FS50348732 (03/11/11): In response to FOI requests about the refurbishment of Downing Street, Cabinet Office claims that information will be published in future. They then change the claim to no information held. The Information Commissioner finds that information is indeed held. “The Commissioner is particularly concerned that the response to the Information Notice appeared to contradict the previous response from the public authority that no searches had been necessary, suggesting that no searches had been carried out.”
  • FS50362049 (03/10/2011): Cabinet Office refuses to confirm or deny whether Government discussed the Nestle takeover of Rowntree in 1988 (which the ICO orders them to do).
  • FS50341963 (08/09/2011): The applicant’s asks for meeting records of a committee which hasn’t met, and the Cabinet Office fail to explain this. They use an exemption to refuse information that does not exist. The ICO comments: “The initial refusal notice provided to the complainant by the Cabinet Office was insufficient and unduly briefthe Commissioner would also note his disappointment that the Cabinet Office failed to avail itself of the opportunity, during the Commissioner’s investigation, to voluntarily disclose to the complainant the specified non-exempt information
  • FS50392356 (4/8/2011): The applicant asks about Andy Coulson’s legal fees on 20 December 2010. Request acknowledged, but no response received at the time of the decision notice (i.e. three months after the undertaking). ICO warns the Cabinet Office that the absence of a response would be referred to Enforcement. The Cabinet Office do not respond. The ICO issues a Decision Notice solely to order them to answer the request.
  • FS50366824 (19/07/2011): Applicant makes meta-request for correspondence about a previous request (re: compensation paid by Libya to IRA victims). Cabinet Office claims request lacks serious purpose or value. Internal review requested on 2/1/2011, but no response is received. The Cabinet Office fail to respond to the ICO, and do not provide evidence for why the request represents a serious burden. “The Commissioner is concerned that in this case the internal review has yet to be completed despite the public authority having taken over 160 working days thus far in which to complete the review, despite the publication of his guidance on the matter.”
  • FS50362370 (19/07/2011): Response to internal review was only received after intervention of the ICO. The applicant wants to know the make and model of printers used for comparison purposes in Sir Phillips Green’s study of government efficiency. Cabinet Office does not want to prejudice negotiations with or to identify supplier. This is the same cabinet office that wants all organisations to publish all spending over £500. Did someone say bullshit?
  • FS50347053 (20/06/2011): On the 28 February, 13 May and 23 May 2011 the Commissioner wrote to the public authority asking it to provide a detailed explanation of its refusal of the complainant’s request for information as amended and a copy of the withheld information. ICO ends up ordering Cabinet Office to disclose salaries of those who earn £150,000.
  • FS50368481 (23 May 2011): Requests are submitted on 24/07/10 and (in expanded form) 6 January 2011. There is no response, though the requests were acknowledged. ICO contacted Cabinet Office on 10 Feb 2011 asking for response in 10 days. This does not happen. ICO forced to issue decision notice solely to force Cabinet Office to answer the requests.
  • FS50354351 (21/03/2011): Request about weapons of mass destruction. The Cabinet Office extends public interest deadline twice, and twice fails to respond to an IC request to resolve the case.
  • FS50310716 (8/3/11) Request for Job descriptions for the employees who support the Government Chief Whip, his deputies and assistants and for funding allocations. ICO had to intervene to get an internal review completed.
  • FS50318536 (17/3/2011): Cabinet Office says they hold data but disclosure would prejudice international relations claimed extra 20 days, then went vexatious despite him having made, then said it should have refused to confirm or deny under Section 40. They held no information. “On 13 December 2010 the Commissioner wrote to the Cabinet Office asking it to provide its arguments in support of its application of section 14. Following several telephone calls from the Commissioner seeking the Cabinet Office’s response to his investigation, the public authority provided its response on 2 March 2011.”
  • FS50300732 (15/2/11): Applicant requests “unredacted minutes” and is sent a link to webpage featuring redacted minutes. Applicant asks for internal review in Nov 2009 and ICO has to intervene in May 2010 to force internal review, threatening to issue an information notice if the Cabinet Office does not respond. They take 150 days to respond, and ICO is forced to take them to task.“During the course of his investigation, the Commissioner has encountered considerable delay on account of the Cabinet Office’s reluctance to meet the timescales for response set out in his letters. Furthermore, the Commissioner has been met with resistance in his attempts to understand the Cabinet Office’s reasons for handling the request as it did and for invoking particular exemptions. The delays and resistance were such that the Commissioner was forced to issue an Information Notice in order to obtain details relevant to his investigation