FOIMan fears a backlash against FOI and transparency in the UK – and highlights arguments over their value in the US. One of my fears following the election of a Conservative majority government earlier this month is that it may herald a backlash against FOI
FOIMan reflects on last week’s long-awaited publication of correspondence between the Prince of Wales and government ministers. FOI stories are like buses. You wait ages, decide to walk, and then three or four drive past you. Last week I took a long-planned week’s holiday only
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 wants the tax.
Therein lies the problem. How will HMRC know how much tax you owe if you don’t fill in a form telling them how much you earn?
Presumably it will require an IT system to collect and make sense of all the data. A big shiny new online database. Where have we heard that before? Anyone remember NHS databases, ID cards, care:data, gov.uk – the government-wide website that makes it almost impossible to find anything? Big government IT projects don’t have the best reputation. If you’re not feeling nervous by now though, let’s remember that this is the same HMRC that lost the personal details of 25 million families a few years ago.
How would it work? It seems to me – having only been self-employed for less than 18 months – that one way or another, HMRC will need to access our bank records. Either they would have a direct feed, or would obtain a report once a year. What’s the problem?
Well, I’m a sole trader. Like many sole traders, I use my normal current account to do all my banking – business and personal. I keep records of my business spending so that it’s easy to separate it out when I come to do my tax return. But what will happen now? Will HMRC have access to everything whether or not it’s business related?
I’m perfectly happy for the Treasury to know about my £49 spent on a night at Premier Inn before I delivered a training course. I might not be so happy for them to know about the £5.99 I spent in Boots on “Chemist Goods”. Or the £120 I spent in Majestic Wines at the weekend (or at the Dog & Duck Pub – take your pick). Perhaps I’ll need to set up a new business bank account to preserve my privacy – for which I’ll have to pay a fee.
It would certainly be desirable for the current process to be streamlined, and I’m not against what the Chancellor is proposing in principle. But if it is to avoid the problems encountered with other government IT projects, HMRC would be well advised to carry out (or ideally to have already carried out) a privacy impact assessment (I’ve provided a link to the Information Commissioner’s Code of Practice on Privacy Impact Assessments in case they need it). Will we self-employed be consulted to establish issues like the ones I’ve raised above? How will the data be secured? Who else will have access to it, and for what purposes? No doubt this data will have value to others – but should they be allowed to use it?
All good questions, and ones that should be asked sooner rather than later. Perhaps they already have been, and I’m worrying about nothing.
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.