Regulating the FOIA into obscurity?

This is a guest post from the redoubtable John Slater, whose tireless efforts to hold DWP to account are a lesson in how FOI should be used. John has had real success in wrestling information out of a stubborn and secretive system, but the post describes the hurdles in the way of the applicant, and the shameful way in which the ICO makes things worse. It’s not a quick read but there’s a lot to say. I think anyone with an interest in how the benefits system operates, or how healthy the FOI system is at the moment should give it the time it deserves. I’m very grateful to John for writing it and letting me host it.

I suspect that most people reading this have experience of submitting a request for information (“RFI”) under the FOIA and all the frustrations that can come with it. Some people may have complained to the office of the Information Commissioner (“ICO”) while others may have just given up when their RFI was refused. I suspect that a smaller number of people, who had the time, appealed ICO decisions to the First-Tier and Upper Tribunals.

Via my involvement with the FOIA I have been dealing with the ICO for approximately 6 years. My interaction has ranged from normal FOIA complaints through to appeals to the First-Tier and Upper Tribunals.

Setting aside the minor issues one typically experiences with any large organization I have to say that my experience of dealing with the ICO has been very positive. Even when a decision notice (“DN”) went against me I could understand why and how that decision was reached. In respect of appeals to the First-Tier and Upper Tribunals I have nothing but praise for the people involved, even when I was appealing an ICO decision.

However, approximately 18 months ago things started to change for the worse. The time taken to respond to complaints seems to be inexorably increasing and the quality of the case work is deteriorating. I’ll use 3 of my current complaints to illustrate the problems that I and others are experiencing on a regular basis.

Case 1 – Universal Credit Programme Board Information Packs

In July 2017 I asked the DWP for the 3 most recent packs of information that were given to the Universal Credit (“UC”) Programme Board members at each monthly meeting. Given how controversial UC is and the history of the DWP being less than honest about it, this seemed to be a good route to try to find out what the senior people responsible for UC actually know and what they are doing about it.

For those not familiar with programme management terminology the programme board consists of senior people who are accountable and responsible for the UC programme, defining the direction of the programme and establishing frameworks to achieve its objectives. So apart from Neil Couling (senior responsible owner) and the secretary of state they are about as senior as it gets. The membership of the programme board can be found here:

Unsurprisingly the DWP refused my RFI on 16 August 2017 citing S.36. However it explained that it needed an extension to carry out the public interest test (“PIT”). On 14 September 2017 the DWP did exactly the same thing. This is a tactic that the DWP uses regularly and often issues monthly PIT extensions until the ICO becomes involved.

I complained to the ICO on 14 September 2017. On 22 November a DN was issued giving the DWP 35 calendar days to issue its response. On 3 January 2018 the DWP finally confirmed that it was engaging S.36 and that the public interest did not favour disclosure (I’ve yet to see a public interest test from the DWP that does favour disclosure). I submitted a revised complaint to the ICO on 9 January 2018 challenging S.36 and the public interest decision.

Despite the 5 month delay by the DWP the ICO bizarrely told me that I still had to exhaust the DWP internal review procedure before my complaint could be investigated. I had submitted 4 internal review requests (“IRR”) during the 5 months that the DWP treated the FOIA with such contempt. I know from previous experience that the DWP would use the same PIT ‘trick’ to delay answering my IRR. I explained this to the ICO and asserted that it has the authority to proceed without me having to submit another IRR. On 30 January the ICO accepted my complaint. I know about this from experience but I assume most people would have followed the ICO instruction and been stuck in another loop of 5 months until the DWP was told to issue its response to the IRR.

On 26 April my case was assigned to a case officer, just 3 months short of a year since I submitted my request to the DWP. Despite the DWP clearly citing S.36 the ICO allowed the DWP to get away with numerous delaying tactics and nothing happened for many months. Despite chasing the ICO on a number of occasions there appeared to be no progress. My patience ran out in October 2018 and I complained to the ICO about this and two other cases. On the face of it this appeared to have got things moving.

However, on 18 October 2018 I was told by the ICO that an information notice had been served on the DWP to obtain copies of the information I had requested. The DWP has 30 days to respond to these notices.

Whilst I’m not surprised by this (in fact I even suggested this was the case in my complaint) I struggle to understand how any organisation can investigate a complaint for almost 6 months without having a copy of the requested information. I can only hope that the DN I have been seeking for so long will appear at some point in 2018!

The delay has been so long that I have actually submitted another request for more current programme board packs. At the time of writing the DWP hasn’t provided a response within 20 days so that’s another complaint that I need to send to the ICO!

Case 2 – Aggregation of various RFIs

Between 4 February and 23 April 2018 the DWP aggregated 9 of my requests for information claiming that they were for the “same or similar” information. Well, what it actually said was:

We consider each of the seven requests to be of a similar nature as they all relate to either decision making or performance delivery of disability assessments on behalf of the Department for Work and Pensions.  In particular, all of the requests would be allocated to the same team for response as it falls within their specialised area. 

Under Section 12 of the FOI Act the Department is not therefore obliged to comply with your request and we will not be processing it further.

This seems to suggest that the DWP believes the requested information is the same or similar because they relate to activities it carries out and the teams that do them. This is a crude attempt to rely on the discredited concept of ‘overarching themes’ that was attempted in Benson v IC and the Governing Body of Buckinghamshire New University (EA20110016).  At [29] the Tribunal stated:

Whilst the Tribunal understood the Commissioner’s analysis the Tribunal felt that it was not compelling and relied on concepts that were not actually within the legislation – e.g. ‘overarching theme’. The Tribunal felt that any consequent uncertainty should, on balance, be resolved in the Appellant’s favour.

On 30 March I submitted a complaint to the ICO. My complaint involves 9 requests and deals with an important area of the FOIA, where there is very little precedent. A reasonable person might conclude that the ICO would be keen to act swiftly. On 27 April 2018 my complaint was assigned to a case officer so things were looking good. It is now coming towards the end of October and I have not had a single piece of correspondence from the ICO.

The requests that have been aggregated cover management information about how the DWP runs large controversial contracts that assess the eligibility for employment support allowance and personal independence payment (“PIP”). A previous RFI uncovered numerous problems with the quality of medical reports being produced for PIP assessments. This might explain why the DWP is so keen not to let me have the current information but not why there has been no progress by the ICO.

Case 3 – Datasets & Type of Data Held for Various Benefits About Claimants

On 26 February 2018 I asked the DWP to disclose the datasets and type of data it holds about various social security benefits. I am not asking for the actual data just the type of data and the “groups” or “sets” of data that it holds.

On 17 April 2018 the DWP refused my request citing S.31 (it eventually confirmed it meant section 31(1)(a))  and  S.24. After a further IRR the DWP reconfirmed its position and I complained to the ICO on 15 July. Some 3 months later on 11 October I was finally told that my case had been assigned to a case officer. Does this now mean I wait for a further 6 months before anything actually happens?


I know the ICO is very busy, partially due to the new Data Protection legislation, but the problems that I and others are experiencing can’t just be explained by “being busy”. Based on my previous experience of dealing with them I also don’t believe it is the fault of the case officers. These problems are due to serious organisational failings within the ICO. There doesn’t seem to be the type of business processes / workflow that one would expect to see in an organisation of this size. The line management oversight of case officers appears to be absent. Based on my own experience it seems to be that the line managers focus solely on protecting case officers while actually making matters worse for them as their workloads probably grow faster than they can cope with.

The ICO should have a small set of metrics about how it is dealing with cases. Surely line managers should be looking at cases where nothing has actually happened for 6 months and do something about it? The idea of management by exception has been around for a long time and yet I’m left with the impression that there are no exceptions set within the ICO and senior management have no impartial way of knowing what is actually going on at the case level.

People might wonder why this matters and that in these times of constrained budgets we should expect cases to take longer. I can’t accept this as one of the key drivers for the FOIA is that we get a chance to hold public authorities to account for their actions. For that to happen we need access to information while it is still relatively current.

It is generally known that there are certain large government departments that have very poor history in respect of FOIA. If someone requests information that these departments suspect will be embarrassing they will deliberately play the system to delay disclosure. From personal experience it’s all far too easy to do:

  1. Ignore the request completely until the ICO tells the department to respond (3+ months).
  2. Use the public interest test with impunity to introduce a 5 to 6 month delay before the requester can complain to the ICO about the exemption cited.
  3. 3 months before a case officer is assigned.
  4. At least 3 to 6 months before a DN is issued.

Total possible delay = 14 to 18 months.

The department can then appeal the DN to the First-Tier Tribunal (“FTT”), even if there is little chance of success. I’ve had 2 cases recently that have been appealed and then withdrawn just before the FTT hearing was due to take place. This added another 6 month delay let alone the cost to the public purse. If the DWP had actually gone through with the appeals and lost then that delay would probably be closer to 9 to 12 months.

This means that “playing the system” allows disreputable government departments to delay disclosure of embarrassing information by at least 2 years. Any media interest in the information can then be met with the claim that it is now ‘historical’ and things are better now.

A good example of this is the Project Assessment Review Reports (“PARs”) for the Universal Credit programme. I asked the DWP for these in April 2016 (see URL below):

Using the delaying tactics described above and making the ICO issue an information notice to compel the DWP to release the PARs to them, they weren’t disclosed until March 2018. That’s a 2 year delay.

The ICO needs to sort out the internal delays that these government departments seem to be relying on. They also need to make sure there are meaningful consequences for public authorities that “play the system”. Writing strongly worded DNs telling public authorities off for abusing the system is meaningless. The ICO was highly critical of the DWP in its DN for the PARs case. A link to the DN is given below and the criticisms start at [62].

The criticism has had absolutely no impact on the DWP.  It still regularly doesn’t reply in time and still produces “boilerplate” responses that have little bearing on the case in question.

As a result of the new GDPR and Facebook the Information Commissioner regularly seems to be in the media and was recently named as the most influential person in data-driven business in the updated DataIQ 100 list. I hear talk of the Commissioner being able to issue huge fines for data breaches and serving enforcement notices on organisations that are not complying with the FOIA.

The original white paper “your right to know” stated at [1.1]:

Unnecessary secrecy in Government leads to arrogance in government and defective decision-making. The perception of excess secrecy has become a corrosive influence in the decline of public confidence. Moreover, the climate of public opinion has changed; people expect much greater openness and accountability from government than they used to.”

If public authorities continue to be allowed to easily introduce delays of 2 years before disclosure then the regulator of the FOIA is failing in her role.  Before the FOIA we only had the thirty-year rule (now moving to the twenty-year rule) controlling when information was released to the public.

I suggest that we are rapidly approaching the situation where by default we have the “two-year rule” for information government departments do not want released. Unless the Commissioner does something about it that will slowly increase to the “three-year rule” and then the “four-year rule”. From my perspective its time the Commissioner stopped boasting about all the powers she has and started using them.


Just before Easter, the leader of Essex County Council David Finch gave his thoughts on FOI. He was careful to temper his comments with the usual ‘some of my best friends are FOI applicants’ line (“I would never deny it was a valuable tool”). But the thrust of his remarks was that FOI was a drain on resources. The £238,000 estimated cost of dealing with FOI could be spent on “frontline services for children, the elderly or on highway maintenance”. I’ve said many times that I’ve never worked for an organisation that had as many people working on FOI as it did on PR, and I doubt Essex is any different. I don’t think anyone should comment on the cost of FOI without mentioning how much their organisation spend on public relations, communications, or town-twinning.

The only likely outcome of such complaints is more FOI requests. For starters, I bet someone asks how Essex worked out the £238,000 figure. Meanwhile, there isn’t a single FOI applicant who will read the story and think ‘I was going to make an FOI request, but now that I understand the burden it causes, I will take up Ikebana instead’. FOI applicants come in all shapes and sizes – politicians, campaigners, journalists, ex-employees with axes to grind, and yes, honest-to-God concerned citizens too. Nobody thinks their own request is a waste of time, so all the requests that would ever have been made will all still be made. As the Cabinet Office’s transparency agenda proves, publication is most often about what an organisation wants the public to know, not what the public want to know.

The sensible writer of a blog on this topic would now build to a stirring crescendo on how important FOI is holding the powerful to account, and list all of the marvellous things it has done. I believe that this is an accurate picture. In the round, £238,000 (if that is the figure) spent on FOI by one of the largest Councils in the United Kingdom is money well spent. I also think that Mr Finch would be wiser not to put his head above the parapet, given all the What Do They Know hobbyists might notice him. A council I know experienced a significant upsurge in FOI requests after their leader made similar comments in the past. However, much as it is an unpopular opinion, I don’t think we should sanctify FOI applicants by pretending that Mr Finch doesn’t have a point. Examples of how FOI can be a time-wasting and annoying waste of money abound – I’ve picked three I’ve noticed in the last seven days.

Doing the rounds on Twitter as someone’s favourite current FOI is this gem from What Do They Know?, requesting the number of times tripe has appeared on BBC cookery programmes. It will probably not take the BBC’s FOI team very long to explain to Ms French that the derogation in FOI means that any data held for the purposes of journalism, art or literature is exempt from disclosure. Given that they told me last year that information connected with ‘The Call Centre’ was similarly exempt, the use of stomach lining on ‘Saturday Kitchen’ and ‘The Great British Bake-Off’ will doubtless remain unscrutinised. But even if this moronic request was answered, it would tell us nothing other than that tastes have changed. It adds nothing.

Also this week, the Manchester Evening News published the shocking revelation that Manchester City Council have spent £190,000 on iPads for staff, figures obtained using FOI. Any story that contains the phrase “Jonathan Isaby, chief executive of the Taxpayers’ Alliance, said:” is obviously nonsense, but even for a mechanical ‘organisation spends money on a thing’ story, it’s almost aggressively lacking in insight. There is no indication that the MEN asked why the iPads were deemed necessary, or whether they were more or less secure or efficient than cheaper options.

Manchester may be frittering our money away on luxury gadgets, or it might have taken a rational decision based on the security and utility of iPads compared to other devices – a dumb FOI request, requesting no context or background, doesn’t tell us which. The story quotes the appropriate elected Member (who says, of course, that the deployment of iPads is an unalloyed triumph), but for all I know, he’s making it up while playing Angry Birds. The point is, neither does the MEN. Their FOI request obtained the least illuminating piece of the jigsaw: the thing was bought. So what? Indeed, the only interesting element is the claim that the Council has ‘gifted’ the iPads to staff. That would be a great story if it was true, but it’s just a misleading alternative to the more accurate word ‘issued’.

I have no doubt the MEN will be focussed on something else very soon (they may even find some space to consider the resignation of David Moyes from Manchester United, a subject the paper has oddly neglected). Another recent What Do They Know request is plainly the opposite – a deeply personal request, obviously the work of a motivated and passionate person. It is, nevertheless, a complete waste of time. The applicant is Andi Ali, a former HMRC employee, who makes very serious allegations about the reasons why he was sacked, which you are welcome to find for yourself.

The request is as follows:

The Information Commissioner’s Office have 100 per cent record in finding in favor of the Civil Service Commission who fund your department via the Ministry of Justice. Under the freedom of information act, can you tell me what other departments or organisations you have a 100 per cent record of finding in favor off, or is just the department who pay your wages you never find against.

Even if the ICO has never found against the Civil Service Commission (an independent public body that is not part of the Ministry of Justice), that proves nothing without analysing each case in detail. But Ali wants to know whether there is any other organisation where this is the case. There is no time limit on the request, and no specific sector. He wants the ICO to look at the outcome of every case or complaint connected with every organisation it has ever dealt with and then identify the outcome of every single case to see whether any organisation has the aforementioned 100% record.

It’s possible that the ICO has the ability to structure every complaint it has ever received in this way within the 18 hour finding / extracting and collating limit, though I think it unlikely. But even if they could, even if there are organisations that the ICO has never found to have breached the DPA, FOI, EIR or PECR, that is even more meaningless than the CSC total. Many organisations will have had a single complaint with the ICO which was not upheld. There may be no adverse decisions because the organisation is compliant. There may be no adverse decisions because the ICO made a mistake. The implication is that the ICO is biased, but by itself, without context that the ICO is some cases legally prevented from disclosing, the information is meaningless. I wonder if Mr Ali – who has already lost a vexatious case at the Tribunal – is really concerned about that. His 84 other WDTK requests make me wonder whether he’s using FOI as a stick to beat organisations with, and the fact that the answer will likely be ‘No’ is irrelevant to his campaign. I guarantee he will ask for an internal review if he doesn’t get his answer, and will establish nothing new if he does.

Councils sometimes waste money. Whistleblowers are often badly treated. Tripe is perhaps unfairly neglected in favour of other more telegenic offal. The problem is, as a result of these three FOI requests, we don’t know anything more about these three issues. Nothing has been achieved. We still don’t know whether Manchester should have bought the iPads. Mr Ali will prove nothing about his treatment, or of the treatment of whistleblowers. We won’t find out anything meaningful about the ingredient choices of BBC light entertainment.

The National Trust currently has an exhibition at its Dunham Massey estate commemorating the outbreak of World War 1 and the country house’s role as a hospital during the conflict. Part of it is the display of propaganda posters from the period, and one lists a series of extravagant activities that will not help the war effort – the use of petrol for leisure purposes, employing people as servants who could be more usefully employed on defending our shores and so on. Before anyone makes an FOI request under a Government that sees FOI as something that furs up the arteries, they should think: is this FOI request necessary? This Government needs excuses to curtail FOI. They need reasons to tighten the finding time limit, to introduce a fee for making requests.

If Mr Finch knew that every FOI request received by Essex Council was a serious, on-the-nose enquiry, I doubt he would feel entitled to complain. I think the cost of FOI should be swallowed without complaint by every public authority. It’s part of a healthy democracy. But equally, I think that vexatious, time-wasting, axe-grinding or space-filling requests should be resisted by public authorities wherever it’s legitimate to do so, and ideally, should not be made in the first place. I don’t believe that FOI should be changed or curtailed. But I think some FOI applicants should grow up.

Walk the walk

Chris Graham gave an impressive interview to the Guardian which is published today. It’s nice to see the Information Commissioner standing up for the principles of transparency and Freedom of Information in the face of what everyone can see is an establishment backlash. As the article says:

There are some very powerful voices saying it [the act] has all been a horrible mistake. Specifically, Tony Blair, Gus O’Donnell [the former head of the civil service] and the prime minister himself,” he said before adding the name of Simon Jenkins, the former Times editor and Guardian columnist.

To that list, we can also add Francis Maude, who imagines that he can make FOI redundant, and various slippery ministers who have allegedly been using private emails to get around legitimate scrutiny of their activities. Graham makes a compelling case, arguing that those who talk down FOI set the tone for everyone else. It cannot be a coincidence that the Cabinet Office’s record on FOI is dismal, given that it was until recently run by O’Donnell. The former Cabinet Secretary’s public antipathy towards FOI reared its head only when he decided to retire, but it’s probably a safe assumption that he wasn’t privately cheerleading for it before that.

Graham also skewered Maude’s patronising line on transparency, by arguing that “Sometimes the full story is in the background papers and minutes of meetings rather than just raw data.

Graham’s analysis is right. People don’t always pay attention to the people at the top (just look at what happened to poor Bob Diamond, an honest man undone by a tiny number of unruly minions), but if they are given any excuse to be lazy, or to misbehave by the example set higher up, they’ll do it (just look at what happened…). I know of an organisation where the head of IT complains that having to remember a password to activate their Blackberry is too onerous and makes them look daft. The person responsible for Data Security might as well quit for all the good their efforts will do. If David Cameron was the politician he claimed to be – the one who offered ‘the most open and transparent government ever‘ – then his approach to FOI would be very different. No-one would have believed Cameron if he pretended he was a big fan of the legislation, but a respectable politician would acknowledge it as an inconvenient but necessary part of an accountable democracy. Instead he whinges about FOI furring up the arteries of government while the Cabinet Office holds secret information on plans to charge for FOI requests that they at first claim does not exist.

Graham’s aplomb at dealing with the media draws a sharp and creditable contrast with his hesitant predecessor. Occasionally, there is misjudgement (as I said before, “wake up and smell the CMP” was an awful headline and whoever came up with it should be made to sit a corner for a while). Nevertheless, the Commissioner is saying the right things and anyone who supports FOI should be happy that he isn’t congratulating himself for not taking on the big targets, which is what Richard Thomas did at Leveson.

The problem for Graham is clearly not a lack of ambition or self-belief. In one sense, the problem of doing the job of championing transparency is that you have to do it in a world shrouded in bullshit and euphemism. I listened to less than an hour of of BBC Radio 4’s Today programme this morning, and as well as all the usual spin and lies, even the language was dishonest. After John Humphrys took someone to task for describing G4S as a ‘partner’ instead of a ‘contractor’, I started to hear the word everywhere, and never in a truthful context. Corporations bankrolling the Olympics were ‘partners’ rather than ‘advertisers’; TV companies screening Scottish Premiership Football were ‘partners’ rather than well, TV companies. Everyone wanted to wrap professional and commercial relationships in a blanket that implied a shared and personal endeavour, rather than each side being interested only in getting what they could out of the deal with minimum effort. The same circumlocutions infect politics and government, national and local. Doing the FOI job in these circumstances is like wading through custard.

However, one thing he can do is keep his own house in order. The Tribunal often has to criticise the ICO for their handling of FOI compliance – read paragraph 25 of this recent decision for a good example. The ICO ignores its own guidance on FOI by challenging an FOI applicant using an obvious pseudonym for no real reason, and then exemplifies the inherent flaw in that guidance by backing down the moment the fake-named applicant pushes back. More seriously, a certain blogger asked a sensible question about information notices and ended up finding out that the ICO doesn’t know how many information notices they have issued under FOI. As well as the clear implication that ICO staff are not following their own procedures (if they were, it would not exceed the FOI cost limit for the ICO to find all of the notices), there is a bigger point that whoever is corporately responsible for FOI strategy within the Office doesn’t have all of the information they need to do their job. How can they look for patterns of underlying problems (which multiple info notices would suggest) if they don’t even know how many they’ve issued?

I am, of course, assuming that someone is doing this, rather than everyone frenetically trying to keep the backlog on a leash. If they’re not, Graham’s words turn to ash in his mouth. Things are better than they were. Graham’s profile is bigger. The frenetic backlog bashing does at least mean that organisations cannot rely simply on the passage of time to escape accountability. I don’t imagine ministers slept easy in their beds when the ICO stood its ground on private email (and ministers should never sleep easy). For all of these things, Chris Graham deserves credit. But talk is cheap. Until the ICO can show that its own FOI and records management practice is exemplary, it cannot lecture anyone else. Until it shows that the most recalcitrant government departments will be brought to heel on FOI, every council and NHS trust will be justified in saying that they’re busy and under-resourced, and FOI is a burden they don’t need.

So two cheers for being a great advocate – the third is reserved for delivery.

Do They Know What 2: The Revenge

Last week, I blogged my reservations about What Do They Know. Although I received none of the abuse from the wilder contingent of the site’s users that I was hoping for, various volunteers and friends of the site commented in a friendly, more-in-sorrow-than-anger kind of way. One of them (the Director of My Society, Tom Steinberg), threw down a classic gauntlet of ‘haven’t you got anything positive to say?’ Moreover, even I’m not paranoid or arrogant enough to interpret @FoiMonkey’s Herculean post about WDTK’s successes on the Confirm or Deny blog as a riposte to mine, but it probably serves as that nonetheless (she still missed a trick by not calling it ‘What has WDTK ever done for us?’).

Personally, I don’t think there’s anything wrong with criticism that isn’t wholly constructive. There’s a phrase that encapsulates a society where everyone looks on the bright side and doesn’t have a bad word to say about anyone or anything: it’s ‘North Korea’. Sometimes you need one person to say that a thing is flawed or useless, and then another person can come along and suggest how to improve it. So part of me wanted to react by making lip farts at the screen and finding someone else in the information world to have a pop at. I’m really constructive when I’m working (ask around), but though I hoped it would be a spin-off from my training work, this blog has rapidly degenerated into an outlet for the side of my character that thinks everything is rubbish.

However, given that I would prefer What Do They Know to succeed than fail, it seems churlish to ignore an apparently sincere request for my feedback. Moreover, given that my chief reservation about the site is probably that its volunteers are not ruthless enough with some of its users, that the site’s attitude is a bit too Boy Scout / Girl Guide for FOI’s good, perhaps what they really need is advice from someone who doesn’t have the rose-tinted spectacles on. And that’s usually where I come in.

So, WDTKers, here are my suggestions for How To Make ‘What Do They Know’ Even More Great!

1) Get a volunteer who thinks that Red Pen / Red Hair / Killing Scotsmen requests are childish and vexatious. Users who make such requests are a gift for the haters and if you don’t see that, you need someone who does. FOI officers do an incredibly hard job, and you don’t help them by giving twerps a bigger stage than they could earn by themselves. The enemies of FOI need crass, easy to digest fodder to keep going. You’re publishing it for them.

2) Disable the comments function for everyone except My Society / WDTK volunteers. The most extreme applicants use the comment function to extend their rants and score points with no real value for anyone else. In my experience, helpful and dispassionate comments usually come from WDTK volunteers (and apparent fans of this blog), Alex Skene and Ganesh Sittampalam. A clampdown on comments would suck a lot of heat out of the specialist applicants. And before someone comes along with some whiny new age stuff about the internet being a space for free expression, I say phooey (NB: I say something a lot stronger than phooey, but I’m not typing it). You’re talking about the internet in general, not this website in particular. If WDTK was a free-flowing environment for free expression, every axe-grinding obsessive with an unjustifiable grudge would be given free rein. The site owners have decided to moderate, and I suggest that the comments – ancillary to the main function and not essential – don’t add enough to the site to justify the rants.

3) Look dispassionately at every user who has made more than 50 requests on the site. If this is more than a handful of users, up it to 100, but the point stands. You’ll find many legitimate applicants who simply have a wide range of interests. However, others who use the site to pursue vendettas or cause pointless trouble mark themselves out by volume, and 50+ is a good indicator of someone who might need to wind it in a little. The site has already recognised the need to put a daily cap on volume, so having a volume threshold to trigger some further attention isn’t unreasonable.

4) Remove every organisation that is not covered by FOI or EIR. You’ve disabled Network Rail even though everyone with a nodding acquaintance with FOI knows that they should be covered. On the other hand, the Church of Scotland has no place on an FOI site. I’m one of these militant secularists Baroness Warsi is so scared of, and I still think they should be left alone, whatever well-meaning circulars they may have issued.

4a) If you don’t like that idea, show them all how it’s done by voluntarily opting My Society into FOI.

4b) And if you’re determined to use the site to agitate for wider FOI coverage, put Network Rail and other similar candidates back on. Otherwise, an unkind person might suggest that you’ve bottled it for some reason.

5) Remove users who have obviously fake names automatically as soon as they come to your attention. No ifs, buts or exceptions. You know what the ICO advice is. If WDTK or its volunteers want to offer a service of making requests on behalf of others, that’s nobody’s business but yours. Anyone who wants to use a pseudonym on WDTK (or anywhere else) is perfectly at liberty to use a sensible avatar. A daft, look-at-me name is chosen solely to goad the organisation. Why do you support this?

6) Hide the profiles of the users you have suspended. You’ve chosen to modify the behaviour of excessive users by showing them that they will be cut off if they don’t use your site responsibly. Just as powerful would be the message that their efforts will be invisible if they transgress.

7) Give a visible yellow card to users who have been the subject of complaints. Allow us to see who’s been complained about, so if they’re misbehaving, users have the opportunity to keep an eye on them.

I genuinely hope that some of these suggestions might help. However, if anyone would like to use the comments to pour bile and vitriol on my thoughts, please feel free.

Do They Know What?

If anything is guaranteed to get participants in an FOI training course talking, it’s an early reference to the website What Do They Know. Especially if I mention it with anything approaching enthusiasm, I’m guaranteed that people will be switched on to what I’m saying and wanting to respond. This is because they’ll want to tell me how much they hate it. A little over year ago, the eminent blogger FOI Man took a look at WDTK  and came out with a measured and balanced approach to competing attitudes towards the site. With his habitual diplomacy, he came to the conclusion that FOI officers should embrace the site despite its flaws. By contrast, I do not come to bury WDTK, but I’m definitely not here to praise it. In classic A-Level essay style, I know I should balance my criticisms with a recitation of all that is good about the site. But frankly, balance is what the comments section is for. 

UPDATE: The comments section is flaky, so some of the balance is now at the bottom of this post as well.

A number of FOI officers have cited WDTK to me as being vital in the process of educating colleagues about the way in which FOI is applicant blind. A disclosure is not to the applicant, but to the public at large and in this context, WDTK is a metaphor made digital flesh (which sounds more early Cronenberg than I was expecting). But it’s not just that. A distinguished FOI twitterer described WDTK as a ‘public email client’. Email clients don’t take political positions (being pro-FOI is one of those, even if you agree with it) and they don’t solicit correspondence to bodies that they decide ought to get mail, which is what WDTK does when they include non-FOI bodies on their site. Email clients also don’t use the journalism exemption to justify the policies they deploy on their website. Part of the difficulty with the site is this identity crisis – they’re neutral except sometimes they’re not.

WDTK is a campaigning tool, and not just for its users, but also for its sponsors / owners. MySociety created WDTK to facilitate the making of FOI requests and the wider dissemination of FOI responses, but there is also an unambiguous agenda at work. The Association of Colleges is not an FOI public authority, but WDTK plonks it in its broad ‘Miscellaneous’ category with this explanation: “Although AoC is not subject to FOI, it has been included on this site because it is majority owned by publicly funded colleges”. Give me a break. On this evidence, WDTK isn’t even an FOI request site any more, because the Association of Colleges, like 3 Estates Kings Norton, Barking and Dagenham Safeguarding Children Board, and the Church of Scotland, is not covered by FOI, but they’re all on there. Needless to say, I searched in vain for an entry for ‘What Do They Know’ or ‘My Society’. Let he who is without sin cast the first FOI, and all that.

The real problem I have with WDTK is its public nature, which can change everything about the requests made under its auspices. I know Heisenberg’s Uncertainty Principle isn’t really as simple as ‘observation changes the nature of the observed’, but the colloquial version of this notion is played out every day on the site. WDTK is easily hijacked for point-scoring and stunt requests (check out this clown for example). You can find many other – and I would argue worse – examples. Often the request itself is simply the excuse to use the site as a forum for precisely the kind of ‘ranty politics’ that the designers purport to discourage. I enjoy the carnival sideshow end of FOI as much as anyone, but in this siege year, I accept that I ought to grow up and talk about FOI like the grown-ups at the Constitution Unit do. And back at WDTK, they’re helping people to ask Tesco about the hot food counter. A Tesco Pharmacy is covered by FOI, but this is like saying that it’s fine to use FOI to ask a GP what’s going on in the pie shop next door. I don’t believe that people would do this if they didn’t have an audience, and WDTK help to put on the show. And as long as it’s still there, WDTK must be saying that it’s OK.

WDTK’s FAQs say that it’s like Hotmail. Can I say I’m like Christian Bale because we’re both 38-year-old men? No, I can’t. I haven’t got the cheekbones and his attempts at facial hair are a joke. And neither can WDTK pretend to be a humble FOI postie. In answer to an FAQ about publishing officer names, WDTK says “We consider what officers or servants do in the course of their employment to be public information.” Although this doesn’t answer the question (what a person does is not the same as who they are), the underlying point they’re making is clear – we decide that the FOI officers’ names and numbers stay on this site because that suits us. I looked for a list of the names of volunteers on the site to see if this keen interest in transparency was reflected in the operation of the site itself, but it must be on a page I couldn’t find. NB: If you think that was a cheap shot, you’re in the wrong place. Nice and balanced is not what we sell round here.

UPDATE: There is an (out of date) list of credits including volunteers here.

FOI is at risk (see previous post). With that in mind, nobody can sit on the fence, least of all a big blundering beast like WDTK. At its worst, it’s a splinter in the thumb of every FOI practitioner, an excuse for every harassed colleague to claim that FOI is a “total f*****g b******t waste of time”- this was not my phrase, even though it sounded like my kind of swearing when someone else said it when discussing a request with me. Though they’re giving evidence on FOI as part of post-legislative scrutiny, WDTK / MySociety seems to be scrutiny-free: I couldn’t find a single reference to What Do They Know on any mainstream news source or website except Martin Rosenbaum’s blog on the BBC, and the Great Man is writing about FOI anyway. So beyond working out how you feel about the deluge of requests that the site has sponsored, there’s scant debate about whether the site’s owners and volunteers ought to take more responsibility for what they have created. Meanwhile, if people are looking for excuses to take pot-shots at the legislation, they’ll take the easier route of attacking the way it’s used. And if I wanted to demonstrate that FOI was a problem in need of some surgery, WDTK is where I would go.

It would be hypocritical of me to say that WDTK doesn’t demonstrate some sense of responsibility because I have complained about users who have subsequently been suspended. However, they didn’t suspend an applicant who asked a council asking how many red pens they’re using. Which is blinkered at best, and enabling at worst. Of course, wider, proactive moderation of the site would be all but impossible without a lot more money and volunteers, but nobody put a gun to MySociety’s head and forced them to create this monster. They should deal more robustly and honestly with its consequences. If they can lecture public servants about whether their data goes online, they can deal more thoroughly with the twerps.

Beyond the Charity Commission, MySociety and its bumptious offspring probably shouldn’t and definitely won’t face any external regulation or restriction. It’s a free country and they can help screw perceptions of FOI if they want to. Like private sector trainers, WDTK in particular and MySociety in general are free from the freewheeling accountability that FOI provides. But the site is – or ought to be – accountable to anyone who wants to see FOI work in this country. The site owners and volunteers make choices about how the site works, who is included, what gets published and who gets to use it. So they should stop abuses more proactively. I’d volunteer to sort the wheat from the crazy today.

The delusion that What Do They Know is nothing more than an email directory for public authorities and a repository of information for high-minded onlookers is just that; a delusion. If they believe the site is just a conduit, WDTK’s owners and volunteers don’t have to worry about any of the crap that flows through it. But convenience doesn’t equal truth. Those responsible for the site ought to get off the fence and acknowledge this. What Do They Know has altered the way in which FOI works in the UK, in ways good and bad. Those running the site should consider whether its more obsessive and just plain prodigious users risk bringing it into disrepute, and FOI along with it. What they do is, and will remain, emphatically their choice. But if they carry on hosting and by default promoting the worst excesses of FOI, they could end up doing more harm than good.

UPDATE: For technical reasons beyond my comprehension, a follow-up comment from Tom Steinberg keeps dropping off the blog page, so with his permission, I’m adding it here, but it should have appeared in the first exchange between me and him below.

Hi Tim,

Thanks for this more feedback – please let us know more policy ideas if you have them.

We are currently engaging in a process of revising site policies – we will certainly discuss your views as part of that. We’ll also let you know what is decided, when it is done.

You might be interested to know that something we added recently is a rate cap on the frequency of new requests for a single user. How this cap operates in future will also be part of the site policies review.

I don’t think anyone involved in WhatDoTheyKnow wants to see the site contain stupid, ranting requests that aren’t really FOIs at all. Running the website WriteToThem we were the first (perhaps only?) people to build in filtering mechanisms to prevent MPs being sent abusive or cut and paste emails through the web.

The challenge is developing policies to minimise abuse or nonsense that doesn’t discourage legitimate, politically inexperienced and low-skilled users from using the power that FOI can offer: these are the core beneficiaries of our charity.

Such policies have to be balanced, nuanced and allow for the fact that our volunteers have limited hours in the day. If you want to be part of that discussion, then I welcome your involvement today and over the next weeks.

all the best,


UPDATE (AGAIN): FOI expert Andrew Ecclestone has a comment too long for comments section. It’s like what my post would look like if I was a grown-up. Will appear as separate blog post.