Mr Graham, you’re pointing the wrong way

FOI Man comments on a war of words between a national newspaper and the Information Commissioner and suggests that Chris Graham is firing in the wrong direction.

I’m generally a tolerant chap. I try to see both sides of any argument, and if people criticise what I write here, it’s usually to say that I sit on the fence too much. If you want (entertaining and informative) bile, I suggest you read Tim Turner’s post about the Information Commissioner from yesterday. Tim REALLY doesn’t like the Information Commissioner’s Office and thinks it does a bad job.

Unlike Tim (just bear with me while I straddle this fence a moment – there), I do believe that there are people in the Information Commissioner’s Office who are doing a good job. Some of them even read this nonsense (Hi!). I recognise that they have a tough job to do, with increasingly limited resources. They produce some very useful guidance, and the enforcement of data protection – especially through the use of civil monetary penalties – has sent a powerful message to organisations in both public and private sectors about the importance of improving the way that personal data is handled. Handling of FOI complaints has sped up vastly since Chris Graham took over as Commissioner.

But as the Financial Times wrote in an editorial earlier this week, there have been important limits. Some central government departments have shown open contempt for FOI, and arguably for the Information Commissioner.  Even when they comply with his rulings, they can’t resist a swipe back. It is well known that the Secretary of State for Education used his wife’s email account to send emails to advisers – and it has been suggested that this was done deliberately to avoid FOI. Chris Cook has subsequently used FOI in an attempt to find out if similar practices were going on in Downing Street and the Cabinet Office. These attempts have almost without exception resulted in him having to appeal to the Information Commissioner, who has in the main ruled that his requests were valid. But each appeal has required Chris to make the request, send some friendly (and less so) reminders, ask for an internal review (but only possible if the Cabinet Office actually answer him in the first place), and involve the Commissioner. It is not surprising that Chris and his employer are pretty frustrated with this process.

It isn’t just Chris that has a hard time getting information (or indeed responses) out of the Cabinet Office. Even the Information Commissioner has noted their lack of cooperation on a number of occasions, as Tim Turner documented last year (and I have a feeling will be documenting further).

What could the Information Commissioner do? If he “is satisfied that a public authority has failed to comply with any of the requirements of Part I” of the Act, he can issue an enforcement notice requiring the authority to take the necessary action. He can do this if it is obvious, for instance, that a public authority has taken longer than it should to answer a request. Or he can simply make it very clear publicly that he disapproves of the way a specific public authority is acting. Imagine if he publicly criticised the Cabinet Office for delaying tactics – I suspect it would have a very big impact.

Instead Mr Graham has chosen to attack the FT. He describes Chris’s requests as “probing areas that are very much at the boundaries of FOI”, as “legal grey areas that the parliamentary draftsmen did not envisage”. I find that hard to understand. If there is evidence that Ministers or others may have tried to avoid FOI, I can understand completely why a journalist would want to find out how widely that practice is followed. In fact I’d have thought the Information Commissioner would have wanted to find that out himself. And decisions as to whether information is held will shape the future boundaries of FOI – that’s an important issue for all users of the legislation.

Earlier this year I attended an event at City University at which Mr Graham was a panellist. Chris Cook raised the same issue with him then. Why wasn’t the Commissioner doing more about the Cabinet Office’s tactics? I have to say that I was disappointed by the response. I expected a reasoned explanation as to the difficulties of using enforcement powers – which I’d have listened to. Instead Mr Graham attacked the questioner in the same bombastic and dismissive tone that is evident in today’s letter.

I understand that journalists and persistent requesters can be frustrating. But as the Commissioner would tell FOI Officers at conferences he has attended, we still have a duty to comply with FOI. We must rise above it.

And the problem, surely here, is with the Cabinet Office. If other organisations can see the central offices of Government getting away with delaying tactics and poor compliance, it is going to make the jobs of FOI Officers encouraging compliance much harder. If Mr Graham is seen to be pointing his gun at the journalists and requesters instead of a Government department that appears to have little respect for FOI, then senior officials elsewhere will take an obvious message from that.

 

9 comments

  1. Tim Turner says:

    There are plenty of people at the ICO doing a good job. Just not sure why more of them aren’t working on FOI.

  2. Jon Baines says:

    Spot on. As I blogged recently, if Cabinet Office gets away with this, why should anyone else bother complying? http://informationrightsandwrongs.com/2013/03/08/why-bother/

  3. Most people misunderstand the role of a regulator, the constraints they face within the political system and their role in helping the regulator be effective.

    I blogged about the role of the regulator previously. http://lawrenceserewicz.wordpress.com/2011/12/06/a-modest-defence-of-regulators-the-case-of-the-information-commissioners-office-ico/

    The regulator is limited as to what they can do because they are a creature of the government. The ICO is limited by the political system. In other words, the UK does not yet have a civil society that values transparency. http://lawrenceserewicz.wordpress.com/2012/04/07/if-you-can-refuse-foi-requests-out-of-hand-you-weaken-democracy-and-open-accountable-government/
    However, they have another power source which my learned and esteemed colleagues seem to have forgotten–the public.

    If we educate the public to the failings of the Cabinet Office; If we educate the public to the FOI process; If we educate the public to their information rights, we can achieve the changes we want to see.

    Where is the petition to change the cabinet office ways? Where is the twitter storm to force the Cabinet office to respect the rule of law? Where is the campaign among MPs to alert them to this issue. Where is the briefing note to the political opposition? In effect,why are the public waiting for the regulator? why are they refusing to help the regulator? Why are we so uncertain about how to make democracy work?

    A blog could be created to tracks the issue and raises awareness through a social media campaign. Words are fine, but where are the deeds? Yes, blogs have been written, yes, some MPs have been approached. Yet, where is the cosigned letter to the PM? Where are the FOI requests to the Cabinet office to have them explain their handling of the issue?

    Perhaps this battle needs to be lost so the war can be won. In the end, the ICO will only be as powerful as the public allows. I fear the FT is finding a way to show solidarity with its brethren bruised by Leveson rather than focusing on the issue.

    Why argue with the ref, when it is the other team that scores the goals?

    • Jon Baines says:

      A very odd comment Lawrence. If you’re including Paul and me and others among your “esteemed colleagues” we *are* trying to educate the public (and Paul, Tim Turner and Chris Cook at least are doing a damn good job of it). We *are* blogging to track the issues and raise awareness. And as for the FOI requests to Cabinet Office to explain handling of the issue, surely you’re aware of the efforts Chris has made to pry this open?

      So, we’ve done all this (admittedly, there’s been no cosigned letter to the PM or a petition, both of which I doubt make much public impact)- now can we criticise the ICO?

      • Thanks for the reply. The term esteemed colleagues should read *all* foi officers. I am less concerned with the ICO than I am with the Cabinet Office. However, the Cabinet Office pales in comparison to the issue of the rule of law.
        We are all imperiled when the rule of law is flouted. If you believe that you have done enough, then so be it. I would suggest that more can be done and should be done. Shouting at the referee only goes so far. One has to go to the FA (Parliament) and to the Public (the public) to achieve change. Otherwise we are just shouting in the wind no matter how eloquently and how often.

        All of the above is moot, no matter how loudly and well we argue, if the public are not involved. I referenced the civil society for a reason. The civil society is only concerned with a superficial transparency, at this stage, as they are used to the press doing it for them. (Which has usually worked well) However, if we are to achieve a change that would lead the Cabinet Office to improve, we need to have the public act. In a sense, justice rests upon, or is delimited to some extent, by public opinion. Public opinion is not justice, but it sets the limits of what can be achieved at any given time within a society.

        By all means, criticize the ICO, but they are only the presenting problem. The real issue is the cabinet office. I have not seen any analysis, yet, of what levers are available to influence them. Perhaps a SWOT and PEST analysis would help us understand the drivers for Cabinet Office behaviour and then we could apply specific pressure to those areas. Alas, that is probably more work than criticizing the ICO.

        • Jon Baines says:

          “If you believe that you have done enough, then so be it”. Not what I said: I said “we *are* trying to educate the public” “we *are* blogging”. Confronting the CO and criticising the ICO are not mutually exclusive activities.

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