Human Wrongs

A few years ago I went to Strasbourg, home of the famous European Court of Human Rights. After admiring the building itself, I noticed a disabled man camping on the other side of the tracks that take visitors to the tram stop named, rather piously, ‘Droits De L’Homme’. He had a huge display in several languages, setting out the appalling injustice that the Court had dealt him by not upholding his case. There were several such men, who would no doubt have treated a ECHR victory as total vindication, but the loss was evidence only of the Court’s bias and corruption. I immediately thought of the notorious FOI applicant and progenitor of vexatious caselaw Alan Dransfield, and wondered if one day, he would be one of the poor souls, earnestly telling his sorry tale to tourists. This is unlikely of course, because Dransfield would spend his time shouting at every passer-by that they were a dickhead.

Nevertheless, the website ‘Amazon News Media’ chose to celebrate International Human Rights Day last month (10th December, diary fans) by publishing an open letter from Dransfield to the Justice Secretary Elizabeth Truss. Fans of Dransfield’s work will be pleased to see a number of familiar themes in the letter. Dransfield claims that the Information Commissioner’s Office is guilty of fraud and theft of public funds. There is ‘tangible evidence‘ that they, along with multiple public authorities, are involved in a conspiracy to pervert the course of justice:

The evidence of complicity between the ICO and Public Authorities seeking to avoid obligations under FOI by consistent misuse and abuse of Section 14/1 vexatious exemption is overwhelming

Dransfield doesn’t specify what the overwhelming / tangible evidence is, beyond asserting that he lost his case at the Court of Appeal, so QED: the fix is in. The letter makes a series of allegations about the ICO and demands that the Commissioner is sacked and replaced by himself. The allegations are a mixture of falsehood (he says that they don’t publish their register of interests when they do) and opinion (he claims it is a breach of an unspecified EU Trade law that the ICO usually uses 11KBW for legal services, ignoring the fact that they are the leading information law chambers in the UK). The only verifiable claim is the conflict of interest in having a council leader act as a manager of a team that deals with complaints about councils and political parties. Dransfield only knows about this because I did an FOI request about it and wrote about it here (inevitably, Dransfield spells his name wrong and the mistake slipped through Amazon News Media’s presumably robust fact checking procedures).

If you’re not familiar with it, the scale of the Dransfield conspiracy is breathtaking – construction companies including Balfour Beatty, multiple councils, the Health and Safety Executive, Dransfield’s MP Ben Bradshaw, the previous and current Information Commissioners and many of their staff, West Ham United, the Olympic Delivery Authority and various other Olympic bodies, former secretary of state Chris Grayling, myself, the Upper Tribunal, the Court of Appeal, the Supreme Court and the House of Lords, all working tirelessly to cover up the construction of a network of unsafe buildings and bridges across the UK. Only Dransfield has the insight to see the conspiracy in all its Byzantine complexity, and the entire UK legal system is ranged against him to stop his crusade.

There is, of course, another perspective, but Amazon News Media have seemingly backed Dransfield with gusto. The accompanying editorial hails “Mr Dransfield’s long experience as a social watchdog” and complains of his “extensive scapegoating” but demonstrates a slender grasp on the facts. For example, it claims that vexatiousness was planted at the second, Upper Tier Tribunal, rather than being a feature of the original refusal dealt with by the ICO. Moreover, like Dransfield, Amazon News Media make big play of the fact that it was the ICO who appealed to the Upper Tribunal and Court of Appeal, describing it as an “abuse” of the system. When Dransfield went to the First Tier Tribunal, he was appealing the ICO’s decision, not Devon’s original refusal. If the ICO disagrees with the FTT, it is they (and not Devon) who must take forward the appeal. The appeal process is not open only to the applicant – public authorities and applicants can challenge the Commissioner, but the Commissioner is entitled to challenge decisions that they think are wrong. This is how the system is designed, and Dransfield chose to use that system. Complaining about the result of a process you initiated is acting like the men outside the ECHR.

I put a comment on the Amazon News Media blog, pointing out that I had made 100s* of FOI requests without ever being refused as vexatious (the issue of Alex Ganotis’ role at the ICO just being one of many), pointing out that Dransfield’s hostility and abusive character is probably part of the problem. An unnamed representative of the organisation dismissed this – apparently, when Dransfield called the Information Commissioner Elizabeth Denham a ‘useless cow’ on Twitter, this was just “colourful language [that] perhaps reflects the insult of having your name unreasonably scape-goated for half a decade“. So perhaps the insult is Denham’s fault for not giving Dransfield the face-to-face meeting he’s been demanding since July. It’s an odd perspective, because Dransfield has been calling me a prick and a dickhead for disagreeing with him ever since this mess started.

I can’t work out who runs the Amazon News Media site – it describes itself as “an evidence-based website practising freelance written and video journalism“, but the website, Twitter account and Facebook page are all somewhat anonymous. The site itself is registered to a David Hodgson in New Zealand, but the nameless person who runs the Twitter account told me that it is based in Swansea. Whoever they are,

UPDATE: I know who they are. I’ve read all 59 pages of the judgement.

They have made a fatal error in their analysis of Dransfield’s case. The editorial states that Dransfield enjoys “superior knowledge of lighting protection systems, and Health and Safety regulations” – the problem is that this is irrelevant to the case. S14 of FOI has no public interest test – it’s not about the information, but the process.

The Information Commissioner, the two Tribunals and the Court of Appeal are not supposed to decide whether Dransfield is right about the unsafe buildings. For the record, I think the conspiracy is a complete fantasy, and Dransfield’s requests are the result of a grudge against his former employer, Balfour Beatty. None of Dransfield’s blood-curdling predictions about fatal lightning strikes have come true, and I am not aware of anyone in the UK Health and Safety sector who backs his theories (I’m famously an arsehole and lots of people agree with me about Data Protection despite this impediment).

None of this matters. The question in play is not one about Health and Safety. The question is whether Dransfield’s torrent of requests, complaints and other correspondence were an abuse of the FOI system. Dransfield had every opportunity to put his case before four independent bodies – one of them agreed with him, and the others did not. It’s not impossible for Dransfield to be right about the buildings (as unlikely as this may seem) and yet, because of his hostility, his stubbornness and the sheer weight of his requests, they tip into vexatiousness.

Ironically, despite Dransfield’s antipathy towards the ICO (and his misogyny towards the new Commissioner), his demand that the ICO sort out the vexatious issue is completely wide of the mark. Even if Denham accepted that he was right, she is powerless to reverse the Dransfield decision. If Wilmslow executed a volte face tomorrow, the Court of Appeal decision would still stand. Public authorities could use the CoA judgement against the ICO in the Tribunals who would be bound by it. Only the courts can change the decision – it is out of the Commissioner’s hands. It’s tempting to believe that Dransfield knows this, and he directs his rage toward the ICO solely because he enjoys it, rather than knowing it will change the outcome.

In the end, Amazon News Media grew tired of my interventions and refused to publish my final comment unless I edited out all of the mansplaining, repetition and “snark”. Instead of being censored, you can – if you wish – read the comments on ANM, and then, by way of a conclusion to all this, I reproduce the comment that they found so objectionable.

You can twist what I have said in any direction that suits you. The decisions that the ICO makes are, obviously, about the public interest (where that applies, and with some exemptions, it doesn’t). Sometimes they get those decisions wrong, sometimes they get them right. When a decision has been tested at several levels, and then looked at subsequently by differently constituted tribunals, you have two choices. Either you can believe that there is an enormous conspiracy to subvert the FOI Act, or you can look at the particular case and decide that maybe the system got it right. There is no inner truth here – you believe what you want to believe based on your own prejudices.

What I said above is that Mr Dransfield’s letter, your publication of it and your conspiracy theories about the legal system will have no practical effect. Truss will not intervene because it isn’t her place to intervene in legal cases. The European Court of Human Rights will not intervene, because Mr Dransfield has been refused leave to appeal there. These are facts – you can put a political / paranoid spin on them if you like, but the spin doesn’t change the facts. If you want to stop vexatious decisions being made under Dransfield, someone needs to take a case all the way to the Court of Appeal and get Dransfield overturned. Alternatively, the FOI Act will have to be amended in Parliament. Given that you think the entire legal system is corrupt, I assume you’re not much keener on MPs. Which makes all of the above a monumental waste of time. But at least it gives you and Dransfield something to do.

* ANM refuse to believe that I have made 100s of FOI requests without proof. Given that they are willing to turn an abusive blowhard into a Human Rights champion without any justification, I am content to say that I have, and if they or you don’t believe me, I don’t care.

** It has been suggested to me that in my comment above, I said that the Court of Appeal can overturn Dransfield, whereas the suggestion is that actually, only the Supreme Court can do it i.e. the court *above* the Court of Appeal. If this is right (and I suspect that it is), the difficulty of reversing Dransfield is greater.

Here be Dragons

I assume that somewhere, there is a rota. Once in a while, an organisation emerges to complain about the moronic FOI requests they receive, and the high cost of dealing with them. Inevitably, a small number of idiots will have obliged by making some eye-catchingly stupid requests, and so the public authority will be able to imply that the £100,000s required to deal with FOI is being squandered on requests about the supernatural and the ridiculous.

This week, it has been the turn of Wigan Council*, who report receiving requests about dragons and exorcisms, before seamlessly moving to a statement that FOIs “can take a long time to process and can be very labour intensive“. Here are two true statements: councils (and other organisations) receive some moronic requests, and some FOI requests swallow up large amount of resources to deal with. They are not the same requests. Any organisation that spends more than two minutes per moronic request is doing them wrong. You don’t have to be a paranoid, self-styled ‘FOI campaigner’ to wonder whether some senior people are more concerned about  unwelcome scrutiny elsewhere in FOI, but the daft requests are a perfect cover to take a swipe at the legislation. We already know that the coalition is minded to do something about FOI ‘abuse’, so what better excuse than a torrent of expensive requests about zombies and clowns, even if it’s an illusion?

So once again, I present some suggestions for dealing with silly FOI requests.

1) IGNORE THE REQUEST

What’s the worst that could happen? Dare the applicant to go to the Information Commissioner to demand an answer to their idiotic request. The ICO has a power to reject frivolous complaints – it’s time they used it. I’ve made this suggestion before and it was universally derided, but if you were to follow my advice and ignore only genuinely moronic requests, there would be no harm in it. NB, despite much evidence to the contrary, it would not be appropriate to ignore completely a request about lightning protection, as lightning does actually exist. See option 3 for more on requests about lightning protection.

2) ANSWER THE REQUEST TRUTHFULLY

Send a response that says ‘We do not hold any information’. Do no searches. Ask no one. Ghosts, dragons, demonic possession, zombies and UFOs are all imaginary, so you will not have any plans or programmes to deal with them. If your organisation cannot confidently say without checking that it has not carried out any exorcisms (and there is at least one council in that position), the FOI request is clearly necessary and in the public interest. If the applicant is asking you to look for incidents associated with clowns, hipsters, or ghosts, do the simplest, most basic search of whatever database or system you have, unless you have the common sense to go for option 3 which is….

3) REFUSE THE REQUEST UNDER SECTION 14

Tell the applicant that their request is vexatious. It is. You do not need to do any searches, and no public interest test is required. Unless / until Alan Dransfield wins his case at the Court of Appeal (contrary to some excited exaggeration on Twitter, he has merely won the chance to appeal, not won an appeal itself), the definition of ‘vexatious’ is sufficiently wide to encompass any stupid request they can think of. This may not even be an entirely good thing, but it’s true. FOI is for serious enquiries about matters of public interest, not time-wasters.

4) BE RELENTLESSLY BORING

Add no stylistic flourish to your response. Exhibit no style, no sense of humour, no panache. Give the idiot nothing to reward their efforts, nothing to elicit even a tiny giggle. Make it feel like a tedious waste of everyone’s time, and make the applicant wonder why they bothered.

5) DO NOT PUBLICISE STUPID REQUESTS

I am guilty of this, merely by mentioning the Wigan story. But I guarantee that one concrete result of Wigan’s complaint will be more requests about dragons and exorcisms. The more the stories get reported, the more idiots will be inspired. As a side issue, all of the journalists who breathlessly cover these stories should ask themselves why they want to feed the perception that FOI is a tool for morons, thus encouraging the government to constrain legislation that many journalists actually use for intelligent, public-interest stories.

6) IF YOU’RE WORRIED ABOUT THE COST OF FOI, COUNT YOUR PR STAFF

Any organisation that is concerned about the cost of FOI should count how many people they have working on FOI, and how many people they have working on public relations. If there are more PR staff than FOI staff, the complaint is invalid. Stop talking. FOI is a legal obligation; PR is not. End of story.

 

* Yes, I did, for six years. Best 9-5 job I ever had.

Tripe

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.

???!!!

I was originally going to write a blog about why I was opting out of the care.data process, but as I was struggling to make it work, Jon Baines tackled the same subject from the same perspective and got it note perfect. It is spoiled only by some twit who can’t even write a comment competently. You should read it (the blog, not the comment). As I went to delete my version, I found something I wrote before Christmas, and decided not to publish because I thought it might annoy a group of people amongst whom I am already unpopular.

On reflection, there is no better reason to publish anything. So here goes:

For several months, the blogger Mike Sivier has been writing about his attempt to get information from the Department for Work and Pensions about mortality statistics for people undergoing the assessment procedure for Employment and Support Allowance. Sivier’s case is that the DWP’s processes are drawn-out and stressful, and directly or indirectly lead to the deaths and suicides of applicants. Last month, Sivier received a decision from the Information Commissioner upholding the DWP’s decision that his request was vexatious. DWP claimed that Sivier’s request was part of a deliberate, orchestrated campaign to inundate the Department with requests on the topic, and the ICO agreed.

When Sivier wrote his blog in June announcing his intention to make the FOI request, he ended it with these words (his emphasis). “I strongly urge you to do the same. There is strength in numbers.” As he noted later, the comments underneath that blog warmed to the theme, with one person talking about swamping DWP with requests. While waiting for his request to be answered, he followed up with these comments about Iain Duncan Smith:

“If a person knows that their actions are causing people to die, and does nothing about it, then an observer may rightly conclude that this person wants those deaths to take place. There’s a word for people who cause others to die – with the intention of causing them to die.

That word is “murderer”.

Or in this case, “mass murderer”.

The net is closing, Iain Duncan Smith.

And just in case that wasn’t enough:

And to any DWP interlopers, reading this site because it is on a ‘watch list’: This is a very dangerous time to be working for that organisation. People who help others to commit murder are accessories to the crime and may also be convicted for the offence.

I regret to say it, because I think the DWP’s policies are uncivilised and inhumane, and I would like to see FOI used to establish this. But Sivier’s request was doomed from the outset. An orchestrated campaign and statements like those above is all the DWP needs to refuse, and all the ICO needs to concur. Not only will Sivier almost certainly never get his information, anyone else who asks will be probably get refused as well. Sivier’s obvious sincerity about the issue may persuade the Tribunal, but it’ll be a long time in coming, even if it happens. I think people should be entitled to insult politicians. But it may kill their opportunity to make FOI requests if they do, so it should not be done idly.

I was not unhappy when Alan Dransfield’s health and safety bandwagon came spectacularly unstuck at the Upper Tribunal; I thought it was the right decision. I think many of the ICO and Lower Tribunal decisions made in Dransfield’s wake are correct. Mr Dransfield regularly sends me angry and accusatory emails in the early hours, so my schadenfraude is already being punished. Nevertheless, campaigning FOI applicants have to accept a new reality, no matter how public-spirited their intentions. The FOI scales are now gently tipped in favour of the public authority. I’ve written an article for the Guardian’s website saying that this is a good thing, and I stand by that. But Dransfield – the case and the man – have made FOI requesting a minefield for the campaigner. It’s clear that the decision will result in more refusals, a few of which may not be justified, especially as the ICO is chiefly interested in clearing up and preventing backlogs. They will probably seize the opportunity to uphold competent vexatious refusals as a way of closing cases and meeting targets.

Look at the ICO guidance, which reflects the Upper Tribunal decision, but is a potential goldmine for hair-trigger refusals. Vexatious is not an option only for the most extreme of cases (p3) and a request can be rejected if it can be said to have a disproportionate or unjustified effect (p6). The list of indicators of a vexatious request is long, and includes ‘unreasonable persistence’, ‘intransigence’, ‘personal grudges’ and ‘unfounded accusations’. If you make an FOI request, you need to know this list just as well as the FOI officers at whom it is aimed, and avoid the pitfalls it describes.

So make a choice, FOI applicants. Do you want to get information or make accusations? You can make noise with the information you get, but that may be less fun. You can write endless blogs about how you have been denied the truth if you’re refused as vexatious, but frankly, you’re going to end up sounding like a flat-earther. Facts do sometimes get ignored, but harsh words and strong opinions may kill your request.

FOI is a means to an end. If you are campaigning, the FOI request is how you get the information to make your point. Making an FOI request itself makes no point at all. If you lose sight of this, you’re sunk. If you send off your FOI request with trumpets and fireworks, it looks like you want attention, not information. I’ve been guilty of this myself occasionally, and I won’t make that mistake again. No matter how strongly you feel about your issue, if you accuse people of being murderers and criminals, the ICO guidance will work against you. It does not matter if you think this is right or wrong; no amount of FOI requests and blogging will change it.

I wonder whether some applicants load their FOI requests with polemic on the basis that because an FOI request has to be read in order to be answered, it’s a way of forcing their foes to read their views. Doing it on What Do They Know only increases the sense of theatre. This is pointless. Most of an FOI request is read only by the FOI team. S0me FOI officers don’t even reveal the applicant’s identity to their colleagues, so why would they share the paragraphs of bile?

A senior officer is much more likely to see a complaint or a press story than the full text of an FOI request. An enthusiastic campaigner recently wrote about an encounter with a senior officer who had been dealing with his requests, deriding the idea that the person concerned failed to recognise his nemesis. But I believe the officer. I bet most FOI applicants are indistinguishable from each other when you’ve got more than a thousand requests a year to deal with. Senior officers in the public sector spend their entire lives having fingers metaphorically and literally jabbed in their faces. Sometimes they deserve it, often they don’t. But the crucial thing is that most of them get used to it. In my time as a relatively junior FOI officer, I was accused of corruption, conspiracy, and wilful neglect of social care clients (NB, I am not a social worker, was not one when this accusation was made and the people in question were not social care clients). I’ve been called a Freemason, a shit-shovelling lackey, and a murderer. I deleted the emails or put the phone down. Nobody loses sleep over what the What Do They Know Warriors think of or say about them, and if you think your targets are any different, you’re kidding yourself. Applicants who load up their FOIs with invective are pouring it over the heads of the FOI officers and no-one else. At worst, they’re making life tiresome for people who may be among the few in the organisation who might conceivably be on their side.

If all you’ve got is strong opinion, you might as well be walking around the headquarters of your target organisation with a placard. Here’s a tip; nobody in the organisation cares and all the passers-by think the guy with the placard is mad. This is where FOI comes in. It gives you facts. With facts, your campaign has a spine rather than just flapping around for the sake of it. This is is true whether you are a minor league blogger, a high-profile campaigner, or a journalist. The facts may not make a difference; your target may be impervious to criticism now matter how well-founded. Look at Hillsborough. Everyone knew what the truth was, but only the Hillsborough Independent Panel forced the deniers to eat their lies.

Decide what you’re doing; if you want information, you’re more likely to get it without a crowd-pleasing running commentary. If what you want is the opportunity to bang on about whatever it is that bothers you, enjoy your freedom of speech. But don’t be surprised if you end up closing off your opportunity to make FOI requests.

And before I depart, a quick summary for those that do want to make effective requests:

1. Decide what information you want. Ask for it. If your request has an introduction, a prologue, footnotes, and great rhetorical flourishes, cut them out. Nobody cares. And if you really believe there is a conspiracy, why not try slipping your request subtly under the radar, rather than using the FOI equivalent of a skywriter?

2. Avoid sensational language, as it plays into a vexatious refusal. If you can’t prove ‘corruption’, ‘lies’, ‘incompetence’ (NB: proof is not the same as strong belief), keep that to yourself, at least until after you’ve made the request.

3. Do not encourage others to join in with your crusade. You cannot manufacture the public interest. If lots of people spontaneously make requests, that is evidence of genuine public sentiment, but anything deliberate will be refused.

4. Vexatious has no public interest test. Neither does the FOI cost limit. It is entirely legally correct to leave these considerations aside when using those provisions, and a refusal will not be overturned because the public interest was not looked at.

5. The ICO is not, and is not supposed to be, the people’s champion. The Tribunal will make only limited concessions to the applicant representing themselves. FOI is a legal process. Take it, yourself and your campaign seriously.

CHOKE ON ‘EM!

On September 2nd, Northern Lincolnshire and Goole Hospitals NHS Foundation Trust received an FOI request from ‘Arnold’, asking

“Can you please let us know what provisions you have in place in the event of a zombie invasion? Having watched several films it is clear that preparation for such an event is poor and one that councils and NHS Trusts throughout the kingdom must prepare for.”

https://www.whatdotheyknow.com/request/preparation_for_zombie_invasions

Oh, my aching sides. Hey everyone, you have to see this! This guy.. sorry, I’m laughing so much I can barely type… he’s only gone and asked for, no really, it’s brilliant, he’s asked for.. provisions for a zombie invasion! BOOM! What a card. It’s like Oscar Wilde reincarnated for the twenty first century. One can only imagine Arnold pausing halfway through his missive to crack off a few armpit farts. Pull my finger. HONK!

Sadly, Northern Lincolnshire and Goole Hospitals NHS Foundation Trust didn’t see the funny side, responding tersely, and with a soupçon of derision:

Thank you for your email. This is not an appropriate FOI request and I would suggest takes valuable resource away from dealing with genuine requests for information.

The Trust will not therefore be responding further.

So that’s Arnold told. As several people on Twitter have already pointed out, the Trust’s response is not legally correct. They did not state that the information was not held, and they did not cite an exemption, which would have been Section 14(1), on the basis that the request is vexatious. What I want to know is, why should they bother? Why even acknowledge Arnold’s moronic request? Why not delete it and get on with what the Trust rightly calls ‘genuine requests for information’?

Nobody can pretend that Arnold expects the Trust to hold the information he asks for. This is the latest in a long line of tedious requests, traditionally made on What Do They Know. Arnold joins a roll-call of unoriginal japesters including Tarquin Farquar-Brown (HONK!), Mr Craddock, Peter Goodman, Adam Field (who claims to be a ‘mature student’ but I think the cat is out of the bag on that one), Alex Chambers, Peter KeastAgata Tina Campanella AKA Mr S Wood, the list goes on. There is something fitting about the uniform shambling progress of these morons, dragging their lifeless requests across WDTK for no purpose. The applicants don’t even care enough to spell ‘Apocalypse‘ correctly or to note that zombies don’t invade (it’s an outbreak, fact fans).

Of course, what I’m supposed to say is that FOI is a legal obligation, that every request should be properly and legally dealt with, blah blah blah. Even as I type it, those big important words sound flatulent and meaningless. Of course public authorities shouldn’t respond to these requests. The fact that sometimes applicants ask apparently daft questions with a sound basis, the fact that this once happened doesn’t justify the relentless tide of zombie requests. If you want to know how many red pens an organisation is using, how many supernatural callouts have been dealt with, or whatever today’s nonsense happens to be, why should anyone bother with you? If any of these jokers feels sufficiently strongly about being shunned, they should complain to the Information Commissioner’s Office. At which point, I invite them (and you, gentle reader) to consider Section 50 of the Freedom of Information Act, which states that the Information Commissioner must make a decision about any application for an FOI decision unless ‘the application is frivolous or vexatious‘.

So ignore the request. Don’t acknowledge it. Bin it. And then I dare Arnold, Tarquin and all the other halfwits to complain to the Information Commissioner that their mindless request was ignored. And I dare the Information Commissioner to come to any conclusion other than the fact that the application for an FOI Decision is anything other than frivolous.

If you want to be pure, then my approach is no doubt unacceptable. But if you want to be pure, I have two things for you to consider. Although some of the zombie applicants use their real names, I am certain that ‘Arnold’ is a fake one. Section 8 of the FOI Act states that a valid request must include ‘the name’ of the applicant, and both the UK (i.e. England Wales and Northern Ireland) and Scottish Information Commissioners interpret that as being the real name of the applicant. So to say that the Trust’s response to Arnold was invalid is to ignore that Arnold’s request was almost certainly invalid in the first place.

More importantly, there only seem to be two legally correct options for a response. If the Trust want to argue that the information is not held, if we’re being pure, it is not sufficient to assert that the information is not held. The Trust would have to carry out a reasonable and proportionate search in order to establish that the information is not held. As the ICO’s own Guide to Freedom of Information states: “Before you decide that you don’t hold any recorded information, you should make sure that you have carried out adequate and properly directed searches, and that you have convincing reasons for concluding that no recorded information is held.” If we’re asking public authorities to be legally correct no matter how stupid the request might be, then just firing back ‘not held’ won’t do, will it? A search of some meaningful kind for the non-existent information is what you’re demanding.

So that leaves us with vexatious. Section 14(1) is remarkably terse: “Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious”. So that’s OK, isn’t it? The Trust can simply fire back that the request is vexatious. But once again, the people who want this process to be followed are all about the legal correctness. Even the ICO’s revised guidance on vexatiousness (once again, I salute Alan Dransfield for all his hard work in making the guidance possible) says that the process of labelling a request as vexatious will “usually be a matter of objectively judging the evidence of the impact on the authority and weighing this against any evidence about the purpose and value of the request“. Does this sound like a quick process to you? Especially if we’re being legally correct, surely the process has to be carried out diligently and thoroughly? Precious public sector time is thus poured down the drain because Arnold is taking a break from internet porn and cat videos.

Why waste the time? What sacred principle is being protected here, other than the right to be a dickhead, and not even an original dickhead? I’m not advocating a change in the law, a change in the process. FOI was clearly framed to allow the ICO to bat away stupid complaints, so I’m simply asking why idiots have to be indulged because on a purely technical basis, we can’t quite work out why not? Just don’t answer. Call the zombies’ bluff: unlike their cinematic counterparts, I am absolutely certain they have no teeth and no guts, inside or out.