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

The War on Freedom of Information

Years ago, I was told what I assumed was an apocryphal story that New Labour had intended to remove the commitment to Freedom of Information from the draft of the 1997 General Election Manifesto, but someone had forgotten to do so. Saddled with this albatross, the politicians lied through their teeth and pretended they were all for it. Though I never really believed it, I repeat this tale whenever possible on the basis that it seems to embody a truth about the way politics is driven by two-facedness and incompetence as often as it is by principle and skill. And after Tony Blair’s ugly, elitist repudiation of FOI in his memoirs, I think that the story is true.

In 2012, the already declared war on the Freedom of Information Act 2000 will begin in earnest, and you will have to decide which side you’re on. Few people have the courage to oppose FOI actively (I’d have perverse admiration for anyone who did). Instead, with the Justice Committee’s post-legislative scrutiny opening up the opportunity for attack, the phrase “I’ve always been a big supporter of FOI” is one you’re going to hear a lot as it becomes the transparency equivalent of “I’m not racist but…”.

Blair’s acolytes Sir Jonathan Powell and Sir Gus O’Donnell have laid the groundwork. The Local Government Association has already put the boot in, issuing a disingenuous pre-Christmas press release with the usual “Some of my best friends are FOI officers..” line. This recalls the moment I tried to convince a senior manager that FOI was a frontline service, and they laughed in my face. It cannot be a coincidence that a version of the same story has also come out of the Higher Education sector while Simon Hart MP has weighed in on behalf of the police. The Constitution Unit have even more examples here.

The case against FOI currently seems to be because of the burden, but the cited requests in the above stories would not detain a good FOI officer for more than five minutes. As a consequence of the oncoming fight, perhaps those of us who make FOI requests should try to avoid becoming part of the case for the prosecution – people who make multiple requests a day, hundreds of requests overall, or ask about masturbation or Heisenberg’s Uncertainty Principle will be used by those who want to circumscribe the legislation, much as they did in the Republic of Ireland by introducing an FOI fee. Vexatious or frivolous requests feed a Manchurian Candidate style conspiracy to undermine FOI from the inside, and now more than ever, FOI needs to be perceived as serious and legitimate.

Nobody can expect politics to get this right by itself. Labour clearly had (and still has) FOI adherents. David Clark’s original FOI white paper was excellent, and Lord Falconer still makes a passionate and admirable case for the legislation. The same person who told me the manifesto story also said that most Labour backbenchers refused to back the Home Office’s attempts to deliver a neutered, toothless Act. But Blair’s rejection of FOI ought to be seen as a scar on the conscience of his party, and lots of current Labour MPs voted to exclude Parliament from FOI.

On the other side, Cameron set his face against FOI restrictions when leader of the opposition (as did Gordon Brown when he became PM). But despite that most sinister Little and Large tribute act Francis Maude and Eric Pickles demanding wider publication of data than the Information Commissioner has ever had the bottle to extract, Maude’s Cabinet Office have a shocking FOI record, and the DCLG’s humourless mishandling of Derek Tickles is hardly evidence of best practice. I should mention the other coalition party (if only to thank Mr Huhne for the fine material he’s given me for training courses), but did anyone involved in battle ever look up from the fray and shout “We’re saved! The Lib Dems are coming!” And for the purposes of economy, let’s just repeat that joke for the Information Commissioner and move on.

I’m biased – FOI gave me a career when I was floundering, the best 9-5 job I’ve ever had was as a Data Protection and FOI officer for a local council and now, the FOI training courses I run help me to live life without a boss. But I don’t think this stops me from making the case for FOI strongly and passionately. I believe that FOI is a vital tool for the ordinary citizen to stick his or her oar in and get involved. No matter how well you understand your audience, FOI allows your customers and service users to open a window into what interests them, rather than accepting what you give them, it holds the mighty account.

So if you’re an applicant, an FOI officer, a journalist or just a regular citizen who doesn’t like to be patronised by the establishment, in 2012 you need to stand up for FOI. We all need to lobby our MPs, the Justice Committee, the Ministry of Justice and the Cabinet Office. In 2012, we need to tweet and blog and agitate to get the message out that FOI is fundamentally a tool for democracy and openness, stopping those in power from condescending to the great unwashed, telling us only what they want us to know.

And if you really want to make an FOI request about drawing pins, it’ll keep till 2013.

UPDATE 13/2/12: 
Blogger was not behaving itself, so here is a comment from @bitsofours

I’d say the political (big and small P) appetite for FOI was always a sparce one and it’s easy to see how the transparency agenda could get brushed to one side in the current climate.  I agree, that FOI-savvy citizens from which ever side of the FOI coin need to keep information legislation on the radar.

One thing I’d note on the the issue of “good FOI officers” – I was an FOI officer for a number of years and more often than not the people actually doing the job of fulfilling an FOI request are caught between a rock and a hard place; wanting to respond within the spirit and the letter of the law but being subject to top-down, risk-averse, protectionist thinking from senior management.  In most organisations the FOI officer is not of sufficient seniority to make decisions about the release of information and are often caught between their personal desire to meet the requirements of the act and the politics of their organisation.