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.