FOIMan observes that for all the legislation and talk of transparency over the last 10 years, it seems ever harder to find information about our public authorities. FOI was supposed to open up our public bodies. They were supposed to publish information proactively and to answer
FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations. On 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob
FOIMan writes for PDP’s Freedom of Information Journal on the “ten things FOI requesters hate most” about the way public authorities handle their requests. Those of you working for public authorities – FOI Officers and others – work hard, I’m sure, to get FOI responses
FOIMan comments on the Budget. Well, one particular aspect with data protection implications anyway… George Osborne, I’m sure, pleased all of us who work for ourselves when he announced in the Budget that annual tax returns were being abolished. Unfortunately, it turns out he still
FOIMan comments on a revealing annotation to a request made via WhatDoTheyKnow.com.
In my experience, one of the most common causes for a FOI response being delayed is one that many FOI Officers are reluctant to publicly acknowledge. It is that often colleagues are less than cooperative. This can take the form of outright refusal to provide information; of foot-dragging; or simply of being awkward and aggressive. All of this goes on behind the scenes and is rarely exposed to sunlight. After all, FOI Officers have to remain professional and maintain good relations with their colleagues as far as possible.
So we can be thankful to one academic who has thoughtfully published the internal email correspondence between themselves and their FOI Officer on the WhatDoTheyKnow website. The cause of this was a freedom of information request made through the site for the academic’s expense claims. They note that they are “far from impressed” with the handling of the request and that “‘work’ is often self-inflicted” by public bodies based on their experience. They ask us to “be the judge”. So let’s do that.
The request was received on 30 January, and acknowledged on the 3 February. On the same date the academic – a professor – was informed of the request, and asked “Would you please advise how we should handle it?”. The response at first sight seems somewhat sharp to send to a colleague:
“I’m not sure what you are asking. If it’s guidance on how to answer FOI requests then I would have thought the university’s FOI Officer would know how to do their job. If not, they could do worse than to read my book…”
What I strongly suspect the FOI Officer was attempting to do here was to consult the professor as to her views on disclosure – as advocated by the section 45 Code of Practice. In any case, it’s good manners. But it was worded a little loosely, so it’s kind of the professor to volunteer her assistance, even if it does take the form of a plug for her own book.
There is subsequently a delay. Let’s remember that FOI Officers are dealing with lots of requests at the same time, not to mention having other responsibilities. So there may be good reasons why they don’t immediately come back to the professor. On the other hand, perhaps the response to their first email has made them reluctant to re-engage.
When they do write again to their academic colleague, they thank them for their email – which is very nice of them in the circumstances – and advise that “[T]he University will withhold information on your expenses on the grounds of Section 40(2) Personal Data.” Is our professor happy to hear this? Not a jot of it:
“That seems a rather defensive position to take. Surely the first step in such requests is to ask the staff member whether or not they object to the information being disclosed. If they don’t then publish.”
The observant amongst you will note that the FOI Officer has already asked the professor – two weeks previously – how they want the request handled. And they don’t appear to have answered yet.
They do, however, go on to explain – you can almost hear the grinding of the gritted teeth that they’re talking through – how the FOI Officer should handle the situation should the staff member object. The professor of course being the staff member here. Still no indication of her actual view on disclosure though. She helpfully refers the FOI Officer to an Information Tribunal case. Not just any Tribunal case though: “my Information Tribunal case”.
It’s worth noting here that whilst it is common practice to disclose expense claims by those in senior management positions, it is certainly not routine to do this for other members of staff. The Information Commissioner’s definition document for higher education institutions requires universities to publish totals claimed by “senior staff” – and defines this as staff earning over £100,000 per annum and on the senior management team. In my time as a FOI Officer in higher education I don’t recall ever dealing with a request for expenses claimed by academics outside senior management. A quick perusal of WhatDoTheyKnow confirms that such requests are rare. Recently the Commissioner accepted before the First-Tier Tribunal that academic salaries were exempt from disclosure in a particular case. I don’t know what academics at this university are told about their expense claims, but given the above, they may have been led to expect that disclosure was unlikely. If this is the case disclosure could well be unfair, which would support the use of the s.40(2) exemption to withhold expense claims by academic staff. So in the absence of a clear, unambiguous statement from the professor that they are content for their claims to be disclosed, I can understand why the FOI Officer would have proposed to withhold the information. They are not being defensive, merely adopting a default position that is perhaps reasonable in the circumstances. In any case, all the professor has to do is indicate that they don’t want their expense claims to be withheld and they can be released (which they know, as the quote above illustrates).
No doubt occupied with other requests and duties, the FOI Officer takes a little while to go back to the academic again. By this point, they have started to suspect – again, without very much to go on – that the professor may want to disclose her expenses. So they ask whether she has claimed any.
Her academic colleague takes umbrage at being referred to as a “Visiting Professor”. Her pride apparently wounded, she questions why the information is not being sought from the university’s systems, and goes on to add:
“The way this request has been handled has not filled me with a great deal of confidence in the competence of the university’s FOI Office. I can only imagine the negative impression given to the applicant. It has been a useful experience, however, to see how the system works (or rather doesn’t) from the inside.”
I don’t know why the information wasn’t being sought from the university’s systems. Perhaps the FOI Officer had already attempted to, had found nothing, and wanted to confirm this with the professor. Maybe – and boy, I can relate to this – they had experienced problems with data obtained from the finance systems previously and thought it might be easier to go straight to the horse’s mouth. But I do know one thing. The professor hasn’t answered the question. Or indeed, given their consent for the information to be disclosed.
I’ve been a little flippant thus far, but I do think this illustrates a real problem for FOI Officers. If you take the handling of any FOI request out of context, you will see delays, and maybe questions that don’t make sense to the outside observer. It rarely helps improve matters to put individuals under pressure from the start by being unnecessarily unpleasant to them or publicly questioning their competence. It certainly doesn’t help if colleagues repeatedly fail to answer questions put to them by FOI Officers in their organisations trying to prepare responses.
At best, the attitude displayed by this academic shows disrespect for a colleague trying to do a difficult job. At worst, it has contributed to delaying the response to the requester – the response is now overdue. The professor may be able to point to failings by the university’s FOI office, but she hasn’t exactly helped them. In her commentary on the request, she comments that the FOI Officer failed to pick up the phone – but it doesn’t appear that she has attempted this herself. At every stage she had the opportunity to indicate her willingness for the information to be disclosed, but instead chose to score points off a junior colleague, apparently to make a political point.
Rudeness may be understandable – though not really – in someone who resents FOI, forced into the sunlight reluctantly. But if you’re someone who professes to champion FOI and has made their name by using it to hold others to account, you would think that you’d do everything in your power to assist a colleague to meet the Act’s obligations. So it’s odd that the academic at the centre of this sorry tale is one Heather Brooke – famed for being one of the journalists who pursued the disclosure of MPs’ expenses. By adding her annotation to WDTK it cannot be denied that she has enhanced transparency, but I’m not at all sure that it exposes what she intended.
FOIMan highlights some recent developments of interest.
Water utilities are not subject to FOI. However, they are apparently subject to the Environmental Information Regulations according to a new Upper Tribunal decision. The long and complex decision has been reproduced on the Panopticon blog.
In the perennial debate over its cost, Tim Turner has used FOI to demonstrate that one police force complaining about the expense of answering requests from the public spends over 6 times as much on public relations staffing as it does on FOI support.
On the Data Protection front, the Alzheimer’s Society has published a guide to Accessing and Sharing Information when acting on behalf of someone with dementia.
Training and other services
Over the last year I’ve been invited to deliver in-house training for a number of clients including local authorities, schools and universities. I’ve updated my Training page if you’d like to know more, and you can also download a leaflet about my services. Get in touch for a quote if you’re thinking about ways to improve your colleagues’ awareness of FOI, data protection, local government transparency or records management.
FOIMan highlights the difficulty of handling FOI requests at the height of industrial disputes.
Those responsible for managing FOI compliance are in a difficult position at the best of times. I’m sure they wouldn’t quote Stealers Wheel to describe their situation (“clowns to the left of me, jokers to the right”) but nonetheless they are stuck in the middle of two camps, each of which passionately feels it is right. On the one side there is the requester seeking transparency and accountability, for whom often any reticence to disclose is another example of establishment secrecy. On the other, there is the information holder, often more senior than the one responsible for compliance, who sees their job as being to protect the organisation from harm. They know the information and its context much better than the FOI Officer and the poor old FOI Officer therefore has to judge whether their reluctance to disclose is justified by the facts, or whether the information holder is being unnecessarily defensive. Things can be even more complicated if those responsible for answering the request are directly affected by the matter concerned.
Pity then those responsible for answering FOI requests at the Information Commissioner’s Office (ICO). As correspondence disclosed by a member of the PCS union and published over the weekend by FOI Kid (no relation) shows, they are in a very tricky place at present. PCS are taking industrial action over a recent decision to award three senior officials large pay rises, whilst other staff have seen very limited pay increases, in line with the rest of the public sector. Union officials made FOI requests to their employer in order to understand the reasons behind the pay awards. Initially told that information was not held, the ICO appears to have changed its mind at internal review.
Dealing with requests in these circumstances is never easy, and any organisation can be forgiven for making mistakes under pressure. That even the regulator’s handling of such a case appears somewhat clunky demonstrates how difficult it can be when employee relations meet FOI.
FOIMan explains why he’s not afraid of the dark age.
In my last post I recounted how pioneers in the UK have contributed to the development of digital preservation solutions over the last 20 years. This was inspired by several news articles at the end of last week reporting on Google Vice-President Vint Cerf’s comments heralding a “digital dark age”. In this piece I want to give my personal reaction to this apocalyptic prediction.
As I indicated in my previous post, the issues raised by Cerf are not new. And indeed he isn’t the first to suggest the dire consequences of a lack of action.
But are such visions realistic? My personal view is that they’re not. Let’s consider what happened in the past.
We tend to assume that electronic formats are somehow more fragile than previous media. This isn’t in fact the case. As any archivist or conservator will tell you, failure to keep paper or parchment at the right levels of temperature and humidity can lead to it becoming unreadable. In one job early in my career I found records being stored in damp, dank conditions under the Town Hall steps. They were covered in mould and fungi – to all intents and purposes unreadable. Some of the records were less than 10 years old.
Just as servers can be hacked, intruders or employees with a grievance can access offices and pick up files they shouldn’t have seen. Careless employees can leave files on trains or even in evacuated premises. Fire or flood can destroy whole warehouses of physical records without the insurance of a backup to restore the files.
These risks have always existed. And until more enlightened times, even governments failed to keep their records in suitable storage. Just read Caroline Shenton’s excellent book about the fire that destroyed the Palace of Westminster if you want some illustrations of this.
And yet… Record Offices hold vast quantities of physical records – they complain of lack of space and have significant backlogs requiring cataloguing. Historians will always want more, but the fact is that despite the poor quality of storage in previous eras, the limited literacy of earlier generations, and in some cases the passing of many years, archivists hold vast volumes of evidence on our past.
The problem in our era is not a sparsity of information. It’s a glut of it. And with so much information – whatever format it is originally created in – it is inevitable that a huge proportion of it will survive. Indeed it is fear that information will live on indefinitely that feeds current debate over the right to be forgotten.
It will survive because it is popular – the more copies of a file that exist, the more likely it is that some will remain (take, for example the four copies of Magna Carta recently exhibited together in London). It will survive because people are interested in it. FOI will play its role – now copies of government documents will be found in many personal collections and on websites as well as stored by their creators. A proliferation of information – facilitated in the digital world – will guarantee that vast quantities of it remain accessible to future historians.
The real problem is not whether there will be information that will remain accessible, but which information should do so. As I’ve suggested, lots of it will live on purely through chance. But it is important that organisations (and individuals too) identify the records that have most value – especially long-term value – and take deliberate action to preserve them. This too will happen because there are commercial, governmental or sentimental reasons to retain them. In my last post I explained the need for pharmaceutical companies to retain digital records – so they took steps to ensure that those records would be preserved. Similarly the digital photographs that you look at the most – of your children, your significant experiences – will almost certainly survive because you will regularly look at them and if you have problems accessing them you will do something about it.
Digital records require specific techniques to ensure their preservation (as indeed do records printed on paper or written on parchment). That’s why the work of the pioneers I wrote about in my last post is so important. But in principle at least, preserving digital records is no different to preserving records created in other formats. It requires the organisation or individual to first identify what it needs to keep (a point made by the National Archives’ Chief Executive, Jeff James, on Saturday’s Today programme on BBC Radio 4). How it will keep it is a secondary and technical question, but one that will be answered if the information really does have value.
This is why, short of a nuclear holocaust (in which case I suspect we will have more pressing concerns should we survive), I don’t think a dark age is coming, digital or otherwise.
FOIMan highlights the important work of UK pioneers to preserve digital records for future generations.
Thank goodness for Vint Cerf. Cerf’s up because he has been speaking at a conference in the US about the dangers of a “forgotten century”. He is highlighting the problem of digital preservation which is an important one. And because he’s a “web pioneer” and a Google Vice-President, the media are listening to him.
If you were to read the BBC News website or the Guardian this weekend, you’d be forgiven for thinking that this is a problem that has just dawned on very clever people in the US. But the truth is that whilst it is welcome that this issue has finally attracted the attention of journalists, archivists and people in the IT industry have not only been aware of these issues for some time, but have also been putting forward solutions. Many of them are right here in the UK.
In a nutshell, the problem is twofold. One, the hardware that runs computer programs is regularly superseded. On my records management courses, I illustrate this by producing a 7″ floppy disk from the 1980s. The hardware that can read that disk only exists now in a handful of museums, but when I was at school, it was used there and in most offices.
Two, the software that is used to create the programs, to manage your email, to retain your photographs, to write letters – also changes all the time. Each time you get a message saying that a new version is available the chances of being able to open a document created in the original version are reduced. Software manufacturers are focussed on creating something that will do lots of new sexy things rather than something that will continue to open your dissertation from ten years ago.
20 years ago this was a problem in the pharmaceutical industry. Research increasingly depended upon technology that produced data which could not be recorded or preserved by traditional methods. This was a concern because regulatory approval for drugs required the experimental data to be available for long periods. And if you wanted to demonstrate that you had discovered a drug for valuable patent purposes then again you needed the records to prove it. A drug like Viagra, say, discovered by scientists in the UK working for Pfizer, is worth billions to the company. So the records proving its discovery are also worth billions.
Back then I was starting my career in records management, and one of the reasons for pursuing it was that at Pfizer I saw it at the cutting edge. Not only did my colleagues invite experts in the field like David Bearman to visit us to discuss the problems, but they were proposing solutions too. They developed, with the help of a UK company called Tessella, a system called the Central Electronic Archive, specifically to retain – and preserve – this important experimental data. The CEA has since been retired, but the work done in establishing it helped to ensure that its contents remained accessible and could be migrated to its successor systems.
This work started in the pharmaceutical industry but its benefits can now be felt in the public sector. My former boss, David Ryan, was headhunted from Pfizer to set up the National Archives’ Digital Preservation Unit. The Unit has produced useful tools such as PRONOM, a database that maps the compatibility of different versions of software so that organisations can work out how to open documents created in older versions of the software. It has also established a programme to extract digital data from central government departments. One example was a 3D reconstruction of a shipping disaster used at an inquest which otherwise could never have been captured and preserved. In establishing the technical infrastructure for these services, the National Archives has continued to rely on Tessella, who won the Queen’s Award for Enterprise in 2011 for their work on this.
The Digital Preservation Unit’s next head, Adrian Brown, has subsequently gone on to establish a digital preservation programme in the UK Parliament, and is widely recognised as an expert in preserving digital formats. Adrian has recently written a handbook on digital preservation to help others looking to ensure their records will be available for decades to come.
There is still a long way to go here, and Vint Cerf is absolutely right to highlight the issue. But much good work has already been done around the world, including here in the UK where pioneers in industry and in the public sector have shown the way.