Number crunching

At least according to Wikipedia, St Basil of Caeseria is the patron saint of hospital administrators, while lighthouse keepers enjoy the patronage of both St Dunstan and St Venerius the Hermit. In the light of such specificity, it seems unjust that Freedom of Information Officers have no more appropriate option that St Thomas More, who covers the broad spectrum of politicians, statesmen, lawyers, civil servants, and court clerks. My vote would go to St Jude, who sponsors lost or hopeless causes, although a case could possibly be made for St Alban, who as well as converts and refugees, is the patron saint of torture victims.

St Albans Council hit the local headlines in September, when the St Albans and Harpenden Review reported the huge burden on the council represented by FOI requests. Councils bleating about the cost of FOI is not a new story, and I have complained about it repeatedly. But fans of the genre will have enjoyed some novel twists among the usual invented cost totals and reassurances that the Council takes FOI seriously. For one thing, the Council Leader Julian Daly aimed his fire at commercial companies rather than the public: “what makes me particularly annoyed are requests from businesses using FOI to get detailed information for commercial gain, instead of investing in market research“. Paul Bradshaw has already beaten me to the observation that businesses, like the public, are taxpayers anyway, but more importantly, it’s hard to imagine how a company would get market research data in any other way than FOI, unless the information was already published.

A second element was even more intriguing. In breaking down the percentages for April to June, St Albans claimed that as well as the whopping 57% of requests from commercial applicants, 13% of requests were from the Metropolitan Police. The technical term for this is bollocks, but I didn’t want to say so without checking. I made an FOI request to St Albans Council after the story resurfaced in the Herts Advertiser in October, and the results were interesting.

One question I asked was: “Did any of these police requests mention ‘Freedom of Information’ or ‘FOI’?“. Although they devoted several paragraphs to explaining their FOI process, St Albans did not actually answer, so I am going to assume that none of them did. It is true that an FOI applicant does not need to specify that they are making an FOI request, and St Albans drew my attention to a section on the Information Commissioner’s website which says that any request for information that is plainly not an EIR or a subject access request should be treated as an FOI: “Any other non-routine request for information you hold should be dealt with under the Freedom of Information Act“. It is always unwise to rely on the ICO’s website, which is generally written as if the reader is a nine-year-old; complexity and subtlety are studiously avoided. Nevertheless, even on the face of it, the ICO’s text does not support St Albans’ interpretation. A request from the police as part of an investigation is plainly ‘routine’ – St Albans received more of such requests than they did FOI requests from the public, a total of 35 in one three month period.

More importantly, when I asked how many of the Met Police requests were made under Section 29 of the Data Protection Act (i.e. made explicitly under completely separate legislation), they admitted that all of them were, and any data was disclosed under that section. It’s not clear (and I probably should have asked) whether St Albans formally refused these requests under FOI before disclosing under the DPA, but I bet that they didn’t. The police were using the Data Protection Act for what the ICO’s Data Sharing Code of Practice calls a ‘disclosure’, and what is more commonly (though less accurately) known as a data sharing request. They were asking not that the data be disclosed under FOI, but that it be disclosed one data controller to another, for the purposes of conducting a criminal investigation. The idea that anyone could think that this was an FOI request is nonsense.

It’s entirely logical for the same people who process FOI and EIR request to also handle subject access and DPA disclosures. Indeed, given that there is currently no formal obligation in England, Wales and Northern Ireland to collate and report FOI statistics to anyone, there is no reason why St Albans’ information requests team shouldn’t lump all of their workload into one system to keep track of it all. It would be nobody else’s business if they did. It’s possible that when the issue came up, the police requests were included by mistake.

The problem comes in the way that St Albans have tried to use the volume and cost of their requests as part of the FOI burden narrative that local government is still enthusiastically engaged in. A statistically significant portion of the requests they complained about were nothing to do with FOI at all. If St Albans Council can afford to stage free PR events for Eastenders Actors, then local taxpayers of any type making FOIs should pass without comment. However, if we are to have a debate about the FOI burden, it has to be conducted honestly. The Herts Advertiser version of the story remarked that St Albans received markedly more than surrounding authorities, and I can only conclude that this is because Dacorum and Watford don’t count electricity bills and stuff written on toilet walls in their FOI totals.

I don’t blame the FOI officers for this; I assume that most of the anti-FOI propaganda is generated by PR teams, senior officers and politicians. But given that it is certain that the St Albans figures have been exaggerated by the inclusion of police requests, any assertion they make about the total cost, the average cost to households, even the total number of requests that they have received, is meaningless. If public authorities want to talk about FOI, they have to start by getting their facts straight.

Tales from the Crypt

If you don’t work in local government, you may never have encountered the Local Government Ombudsman, an organisation devoted to giving nutcases somewhere to grind their axes investigating possible maladministration in councils. The scope of the LGO’s work includes everything that councils do, but inevitably many complaints are about the most sensitive areas: child protection, looked after children, adoption, and adult social care. In dealing with complaints from the public, the LGO gets access to genuinely and (in Data Protection terms) legally sensitive information. Inevitably, given that councils have been the target of more ICO civil monetary penalties than any other sector, largely because councils are dumb enough to keep dobbing themselves in to Wilmslow, many are keen to use the most secure way of sending this confidential data to the Ombudsman.

It may seem odd, therefore, that the LGO sent an email to councils last month, containing the following message:

Encrypt or not to encrypt – that is the question …..

We’ve had a number of issues accessing encrypted emails which have been sent to us by councils. Whilst we appreciate that your information security policy may dictate how you send information to us, if there is any discretion please only send encrypted emails when it’s absolutely necessary.

Someone mentioned the gist of it to me, but I made an FOI request to the LGO to be certain that they really were sending out such a daft message. The LGO’s Information and Records Manager rather sweetly explained in their response to me that “our intention in sending this request was discourage councils encrypting emails that contain no sensitive personal or confidential data. Of course, if councils are sending sensitive personal data we would expect them to encrypt it – as we would do ourselves“. This is a useful piece of context for someone asking for the information under the auspices of FOI. However, this isn’t what they said to the numerous council link officers who received the email, and who were expected to act upon its contents. It’s almost the opposite.

Encrypting devices within an organisation is an easier proposition, as all the devices and connecting software are already part of the same system. The problem with encrypting email is undoubtedly that it involves different systems and protocols butting heads in the attempt to make a connection. The LGO pointed out to me that their case management system contains its own email system which can make receipt of an encrypted email difficult. But this is the LGO’s problem and nobody else’s. Councils have no choice about whether to supply data – one of the ‘key facts’ about the LGO on their website is that “We have the same powers as the High Court to obtain information and documents“. Given the ICO’s historic fondness for fining the sector for data security lapses, if councils opt for encryption by default, they should be applauded, especially by the organisation set up to investigate their conduct.

This will inevitably pose problems for the LGO internally, but the solution to this is not to encourage councils to reverse sensible changes in behaviour that another regulator has been pushing them into. They are a regulator whose job it is to deal with a diverse and multilayered sector with widely disparate cultures and practices, and they have to be capable of swallowing the inconvenient implications of it this. However difficult it might be to cope with, especially without the clarification provided to me in my FOI response (and as far as I know, to no-one else), the LGO’s current advice is damaging and unsafe. Councils should ignore it, and the LGO should withdraw it.

A Council of Despair

Depending on your point of view, the Taxpayer’s Alliance are either a doughty set of campaigners, determined to hold back the excesses of an overweening, spendthrift state, or a bunch of permanently outraged libertarians who hate the public sector.

I lean toward the latter perspective. These are people who think that it would be cheaper for councils to allow livestock to roam wild across public land than have grounds maintenance staff. They want care homes to stop having carers on duty at night. They want the absolute minimum health and safety staff available. What could possibly go wrong? No matter what the subject, the TPA Knows Best and feels qualified to tell other people that they could do things more cheaply.

Unless you live in a cave and eat squirrels, you’re a taxpayer. We all pay VAT on most of our purchases. If you have a job, you pay income tax and national insurance. If you drive a car, you pay vehicle excise duty and fuel duty. If you have a television, you pay the license fee. Retired people pay tax, benefit claimants pay tax, children pay tax, dead people pay tax. Everybody in the UK is a taxpayer, and so the Taxpayer’s Alliance is either a meaningless concept or a disingenuous one.

Each of the TPA’s successive Chief Executives has carried out the organisation’s most important function, which is to issue template expressions of outrage to be used in the last quarter of local newspaper stories about the state buying or doing things. The TPA chief is always convinced that shocked taxpayers will be shocked in these times of austerity to discover that the organisation in question is carrying out its statutory responsibility to collect taxes, paying its electricity bills, paying its staff instead of instituting cuts, or erm, instituting cuts (haven’t they heard of McDonalds?).

However, the latest statements made by the current TPA chief executive, Jonathan Isaby, are not just knee-jerk, they are misleading. The Sunday Sun newspaper in the North East announced the results of a “probe” (translation: an FOI request) revealing that Councils in the area are making ‘sizeable chunks of cash’ (translation: a gnat’s fart percentage of their total budget that they probably don’t want) from the sale of the electoral roll. The story itself is misleading, drawing a distinction between the obligation to “make some data available to bodies such as credit agencies” and the sale of the roll for other purposes. This is hogwash. The Representation of the Peoples Act obliges councils to sell the edited portion of the register to anyone, for any reason. They cannot say no, because no purchaser of the edited roll can be refused. It’s possible that the Sun journalist hasn’t done their research properly, but the TPA doesn’t have that excuse. They are a well-funded, well-connected lobby group, and besides, last year, their cousins in Big Brother Watch published a detailed report into the operation of the electoral roll, complaining that citizens are not automatically opted out. I actually agree with BBW about this, but as I noted at the time, the advice they gave people about what to do under the current legal position was useless.

Isaby’s response to the “probe” was as follows:

Most people will be very uncomfortable with the fact that councils are allowed to treat this information about their local residents as an asset to be hawked around for sizeable chunks of cash.

Banning the practice of selling the electoral roll would be a positive step towards reminding councils that they don’t own us and that they should in fact be beholden to their residents, not vice versa.”

This is also hogwash. Councils are not “allowed” to treat the roll as an asset to be hawked around. They are forced by law to sell it. This obligation was introduced without even an opt-out, and then amended to include one only after a successful Human Rights court case by a private citizen (three cheers for Mr Robertson). Councils don’t have any choice in the matter. They don’t need to be reminded that they don’t own citizens – at least not in this context – because they are simply carrying out a statutory responsibility that neither the Blair / Brown administrations or the Coalition have seen fit to change. Isaby’s complaint is with Eric Pickles and his predecessors, and with no-one else. He should be badgering the Department for Communities and Local Government, rather than slurring the councils for doing as they are told.

The Taxpayer’s Alliance has a valid agenda for a lean state with low taxes. I even agree with some of what they say. Local Authority and Health Chief Executives are nearly all overpaid. There is waste in the public sector and some of what the public sector does is unnecessary. I’m also not objective. I’m left-wing. I’ve worked for the public sector in general and councils in particular. As I have said here before, I was proud to work in local government and I would be sorely tempted to do FOI and DP in a council again if the opportunity arose. I like decisions that affect me being made at a level that we ordinary citizens can easily engage with, and vote out if we don’t like it. Volunteering – so beloved of the TPA – looks cheap, but it it isn’t democratic.

But none of that is the point. My complaint is that Isaby is a sophisticated operator who knows exactly what the position is on the electoral roll, and he is putting a false spin on the sale of the data so he can put the boot into local government. This is unfair. If a council really put the effort into touting and selling it (something none of them do in my experience), isn’t this the kind of entrepreneurialism that the TPA should approve of? Surely a state funded by private enterprise is what they want?  The TPA is scathing about the sale of the electoral roll (a relatively minor issue), but I haven’t heard Isaby shouting about a far larger transfer of data by the public sector to the private, demonstrating a definite sense of entitlement and ownership over the records of ordinary citizens. Is this because unpopular, tax-raising councils are an easy target, but he isn’t bold enough to go after NHS England and its programme?

The TPA may claim to be ‘non-partisan’ but they cannot pretend to be apolitical in the light of this.  Isaby’s comments have nothing to do with tax, and everything to do with small ‘p’ politics. If they want to attack councils, they should do so in the open, and not with smears.

UPDATE: 8th  January

As I observed above, the Taxpayers Alliance has a privacy spin-off, Big Brother Watch. Today shows that BBW is similarly willing to put a weird emphasis on events to support an underlying agenda. A police officer and two others are currently on trial, alleged to have stolen hundreds of people’s details for the purposes of making compensation claims. BBW chose to describe this alleged criminal act committed by individuals as ‘Another serious data breach in the public sector‘. ‘Data breach’ is a clumsy, inelegant phrase, often used when ‘security breach’ or ‘incident’ would be more accurate, but everyone knows the context in which it is used. A ‘data breach’ is a loss of data, a theft of insecure data, the kind of thing for which the ICO uses its enforcement powers. ‘Breach’ has a specific meaning in Data Protection terms; it describes what happens when a Data Controller contravenes one of the eight DP principles. The current trial does not concern another data breach in the public sector; it concerns the alleged commission of an offence. Like the TPA, BBW is comprised of intelligent, sophisticated people. A misleading impression is created, and I cannot believe that it is an accident.

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.