Archive for Comment

When Boris was my boss

FOIMan recounts his own experiences of working for the likely new Prime Minister.

City Hall, London

London’s City Hall

So Boris Johnson has been elected leader of the Conservative Party and, as a result, will (probably) become Prime Minister. What do civil servants in Whitehall have in store for them?

I have some insight, because in 2008, when Boris was elected Mayor of London, I was working in City Hall as the Greater London Authority’s (GLA’s) Freedom of Information and Records Manager.

The 2008 election was a close-run thing and allied to that, Ken Livingstone had been the first Mayor of London. It was hard to imagine anyone else being Mayor. So in the face of polling to the contrary, I think most staff at City Hall (and most Londoners) expected Ken to receive a scare but to scrape home, and life would continue much the same as before. Not that all staff would necessarily have seen that as a good thing: there was a feeling that change was overdue. It wasn’t always a pleasant experience working in Ken’s City Hall at that time.

As records manager I had assumed responsibility for the creation of a historical archive. The Act of Parliament establishing the GLA had been silent on the need for this, and in an organisation only 8 years old, nobody else had given it much thought. In addition, since everybody had assumed Ken was Mayor for life, there didn’t seem to be well-developed transition arrangements. In the civil service there are clear rules around what happens when a new administration takes power. They are not permitted to see certain records created by their predecessors. In 2010 and 2015, the unusual circumstance of coalition government reportedly complicated matters, but nonetheless there were principles and procedures to follow. My recollection is that this was not the case in 2008 in City Hall. The sense – from my perspective at least – was that we were making it up as we went along.

A few weeks before polling day, my colleagues in Facilities Management had told me that in the event of Boris winning the election, I would need to come into City Hall on the Saturday after the result was announced and remove any records from the Mayor’s Office (both the Mayor’s actual office and the wider department that supported it). This was the extent of transition planning in regards to records of the Mayoralty, and it didn’t extend to provision of facilities to house removed records. I was told that I’d have to find a way to remove the physical records to off-site storage. That this was impractical (if not actually impossible) didn’t appear to sway anyone’s thinking – they had, in their minds, other, more important, fish to fry.

The election took place on Thursday 1 May 2008, but the results weren’t announced until late on Friday, possibly even after midnight (so early on Saturday). I watched the results announced over a pint in a local Wetherspoons pub with a colleague who lived near me. And headed home immediately so I could get at least some sleep.

The story of what happened that bright sunny morning when I arrived at City Hall is for another time. Suffice it to say that it’s a good one. My memory is of an eerie silence throughout the building, but since it wasn’t usual for me to be there on a Saturday, that could have been normal.

Eventually (after the most embarrassing, if interesting, hour or so of my professional life) my Facilities colleagues saw both sense and reality and provided staff and crates to help remove records from the Mayor’s Offices. There were stories at the time of City Hall shredders going like the clappers. I can’t say whether political advisers were doing this, and our attempts to collect and manage digital records were at an early stage, but certainly all the physical files from the Mayor and his Chief of Staff’s offices were crated up and moved to a locked meeting room a few floors below. My colleague and I spent the next three weeks carrying out rough and ready appraisal and listing of those records before they were transferred to the London Metropolitan Archives. Unless a decision was subsequently taken to remove them (the GLA had to pay for the LMA to preserve them so there is a risk that someone in City Hall at some point will have cut the purse strings), there they still reside waiting for future historians to explore.

Back to that Saturday. As we were clearing the last items from the Mayor’s inner sanctum, an announcement sounded across the building that the newly elected Mayor would address staff and anyone else in the building. Any staff in the building were urged to go to London’s Living Room, the space at the top of City Hall that is used for assemblies of the great and good (and the occasional staff party).

I sat down on one of the few empty seats in the room. The lady I was sat next to asked me where I’d been campaigning. I looked around the room. It was packed with cheerful Boris supporters, whilst a sprinkling of City Hall staff, many looking pensive, stood around the fringe. My memory is that the Chief Executive, Anthony Meyer, introduced the new Mayor of London. There were wild cheers. I felt nervous as not all City Hall staff would have been happy about the situation. Some jobs were on the line. But if I looked too unenthused, how would that be seen? Should I stand for the impromptu standing ovation he received? If I stay seated will it be noted? It was an awkward moment.

Then Boris took to the podium, tripping over the base as he did so. Cue more cheers from his many supporters in the room. This may be my perception since, but I remember being suspicious as to how accidental his trip was. I can’t recall his actual words but it was much as you’d expect if you’ve ever seen Boris give a speech.

The Saturday and the following week have become confused in my memory. I remember walking through the building on either that Saturday or the following Tuesday when we returned (it was a bank holiday weekend). There were men and women in suits seemingly positioned at regular intervals throughout the office areas on each floor. It felt like an occupying army.

In that first week (probably the Tuesday), there was an all staff meeting in the Assembly Chamber where Boris was officially introduced to us by his acting Chief of Staff, a certain Nick Boles (who I always saw as Boris’s Conservative Central Office handler, intended to keep him under some semblance of control). Later Boris toured the building, shaking hands with every member of staff he met (including me and my colleagues), and deploying the famous Boris charm. This went down well with many of us, since Ken had become increasingly distant and remote in the last few years of his Mayoralty.

There was mutual suspicion. I recall having a drink in a pub with a friend and discovering that the couple of people at the next table were part of the new team. We got chatting and they admitted there was a lot of suspicion of City Hall staff – specifically that they were all pro-Ken and resistant to any change. We actually sought to reassure them by saying that most staff were just there to do their job and in some cases welcomed the change. After all, morale in City Hall after months of Ken in his bunker had not exactly been high before the election.

Then though, the changes began. They did not appear always well-informed. I was based in the GLA’s research library, which provided much the same function to the Mayor and Assembly Members as the House of Commons and House of Lords Libraries provide to MPs and Peers. The department was clearly square in the sights of those who Boris charged with trying to reduce staff numbers at City Hall (something he had promised in his manifesto). They seemed determined to dramatically cut the service, and my colleagues were not encouraged in early meetings by the use of phrases like ‘why do we need a library when we’ve got Google?’. Boris’s City Hall had clearly had enough of experts. Part of the library’s role was to order newspapers both for reference in the library and for delivery to public relations and political offices. An early battle was over our purchasing of The Morning Star newspaper. We were ordered not to procure it any longer. Arguably, it was easy to comply with this missive (whatever our views) in relation to the Library’s own copy. But Labour Assembly Members weren’t particularly impressed at having their reading censored by the Mayor. So the research library found itself stuck in the middle of a battle over freedom of speech. It was not a comfortable position for my colleagues to be in. Eventually the library staffing was considerably reduced and is virtually non-existent now. Research services as required are bought in. Whether this leaves the Mayor or Assembly Members sufficiently informed is another matter.

There were other changes. The Chief Executive was seemingly forced out, and a new (more highly paid) one brought in. Eventually the new Chief Executive abolished his own role to save money, arguably leaving the staff he was supposed to be leading even more exposed to the whims of the Mayor.

The new Mayor was a fan of eye-catching if meaningless changes. During the campaign, Boris had criticised ‘Ken’s cronies’ – his ‘unaccountable’ special advisers. When elected, Boris – as he was allowed to do under the GLA Act – appointed his own political advisers. But now many of them were to be ‘Deputy Mayors’. Technically there is only one Deputy Mayor allowed under the GLA Act, and they are supposed to be an elected Assembly Member. Suddenly Boris’s SPADs could be Deputy Mayors. The ‘statutory’ Deputy Mayor was effectively sidelined. It was a gimmick, but it set the tone: the people with the real power were Boris’s ‘cronies’. He just did it with more bravado than Ken ever had.

I continued to manage FOI. I had been optimistic when Boris was elected as his manifesto had shouted loudly about the importance of transparency. Spending was to be published monthly. But as with David Cameron a few years later Boris’s administration was only interested in pro-active transparency of their choosing. And despite my best efforts, it proved impossible to get involved in discussions about how to improve openness and develop an open data programme. They had their own agenda and would achieve it through their own means. When it came to FOI, whilst I don’t recall overall performance suffering considerably aside from an initial dip caused by the disruption of a new Mayoralty, the job became considerably harder. I had to be even more persistent than I’d had to be with Ken’s Mayor’s Office. And they weren’t interested – in fact I would go as far as to say that they were often actively hostile. One of Boris’s senior appointees once told me that they were going to become an MP and make sure FOI was abolished. They weren’t joking on either point (though they have so far failed on both).

The key difference between Ken’s Mayoralty and Boris’s as I saw it was that Ken’s advisers were often pretty unpleasant to deal with. But ultimately they would follow advice most of the time, especially if the law required something to happen. Boris’s leadership team were initially charming. All smiles, handshakes and ‘come and take a seat’. But once they decided you weren’t useful to them, or said inconvenient things – they became utterly ruthless. I’ve written a little about this previously, and it is my overall perception of that time: Boris’s team were nicer to your face but would stab you in the back (or front for that matter) without hesitation if it suited them.

I didn’t have much to do with Boris directly, aside from seeing him appear in the cafe wearing his cycle helmet and a ruck sack post cycle ride into work. I heard stories about him larking about in formal meetings, making staff uncomfortable and visitors uneasy or amused depending on their attitude. But I didn’t see any of that myself.

I didn’t stay in Boris’s City Hall for too long. Almost my entire department was made redundant within 18 months. My job was safe but there was a lack of clarity about where it was moving to. It was the most traumatic period of my professional career, watching friends lose their jobs. Perhaps the process was necessary to shake things up and save money (though watching Boris throw money at unbearably hot buses, unbuilt garden bridges, unused cable cars and unusable water cannon over the following years made it harder to see the point). But it was horrible to go through and I chose to move on around the same time as many of my colleagues departed.

Does my experience tell us anything about a Boris premiership? Impossible to be sure, but I think we can expect gimmicky gestures; reliance on a trusted caste of SPADs behind and perhaps in front of the scenes; ruthlessness; implementation of the leader’s agenda often against the advice of officials; and many twists and turns. Good luck my civil service friends. You’ll need it I suspect.

Don’t Google your requesters

FOIMan explains that searching for FOI requesters is not a great idea – and is ethically (and legally) dubious.

This blog originally aimed to give the practitioner’s view of FOI. Far too often, the important role of FOI officers and public officials in making FOI work has been ignored. So an increasing interest in how FOI really works behind the scenes is to be celebrated.

We’ve seen it in two recent reports on FOI in local authorities. The first from MySociety looked at FOI in local government across the UK. The second, from the Campaign for FOI, focussed on how London boroughs managed their FOI obligations. Interestingly, the findings of the two reports on practices in local councils are broadly in line with my own research which you can read about in the free chapter from The Freedom of Information Officer’s Handbook that I wrote about in my last post.

The Campaign for FOI’s research commented on the London Borough of Lambeth’s practices, and I was reminded of this when my attention was drawn last week to a post by a local blogger who had obtained Lambeth’s internal staff guidance for handling FOI requests. The News from Crystal Palace blog published the guidance pretty much in full, highlighting a number of practices which they felt were of concern.

Having read through it, much of the guidance is pretty standard stuff, and in fact I would go as far as to suggest that there is some very good practice in Lambeth. For example, strict timelines and service standards are a good way to ensure that requests are answered within statutory deadlines.

One particular section is of concern, however. Staff allocated a request are told:

‘You may want to consider all or some of the following when you are assessing a request:

  • Google the requester to understand who is making the request, why and assess the likely impact to the council (e.g. political, media, legal, commercial, personal data).
  • Review previous requests from the requester in iCasework.’

No. I can, at a pinch, understand the human instinct of curiosity that might lead an uninformed member of staff to use a search engine to find out about a requester. But FOI officers should be discouraging this practice, and certainly not making it official policy.

I know all the excuses. Often it is linked to a policy whereby an authority’s Press Office is informed when a journalist makes a request. In principle I don’t have a problem with that, as long as public authorities are open about the fact that they do it. The problem is that some journalists, perhaps suspicious that they will be treated differently, don’t identify themselves as such. The Act doesn’t require them to do so. The argument goes that therefore every requester has to be googled in order to identify the very small percentage of requesters that are unidentified journalists.

I’m going to suggest that this is flawed logic. Firstly, since most public authorities, and certainly councils, are suffering the effects of cuts to their budgets, why are they encouraging staff to waste precious staff time on the off-chance that someone might be a journalist? Even if they are, it shouldn’t make any difference to the outcome of the request, so surely this is a complete waste of time?

Secondly, how does the council know that someone who isn’t a journalist in the formal sense won’t blog or Tweet about disclosed information? Or pass it to a journalist for that matter? Given this, the fact that one or two journalists might not be picked up doesn’t seem that important.

Thirdly, whilst I recognise that Press Officers have a job to do, I don’t see why they necessarily need to know who is making a request. The sensitivity of a request surely ought to be judged on the subject matter, irrespective of who has made it. Lambeth apparently circulate a list of requests to their Press Office and the Leader’s Office. If this just describes the subject matter of the request this should normally be enough for them to identify where they might need to be prepared for controversy (which really should be the limit of their involvement following an FOI request).

There will be a director of public relations somewhere barking “well, why shouldn’t we?”, so here are a few points in answer to that question.

  • what’s your lawful basis? An individual’s FOI request, their identity, biographical information about them is personal data. You need a lawful basis to justify the handling of personal data – including searching for information about someone online. I presume you’ve completed a legitimate interest assessment and successfully justified how your need to know whether or not someone is a journalist outweighs the rights and freedoms of requesters? Even if you decide that you do have such a basis, are you otherwise complying with the requirements of the GDPR? Are you telling requesters that if they make a request it will result in the council looking them up online?
  • they can find out that you’re doing it. If the requester has a website, the most commonly used analytics tools will provide enough information to them so that they will spot unusual spikes in interest from your general location just after they made a request to you. There’s an example of this happening described in my book if you don’t believe me.
  • it’s creepy. Most comment on Twitter in response to revelations about Lambeth’s practice was to the effect that Lambeth were ‘spying’ on their residents. If a public authority is so concerned about its reputation that it employs Press Officers, shouldn’t it be just a little uncomfortable about gaining a public image associated with the fiction of George Orwell?

FOI is a right. Full stop. If people choose to exercise it, that is their business. If a public authority has good reason to believe that someone is misusing this right – perhaps harassing a member of staff, for instance – there are mechanisms for dealing with that. It is not usually necessary for a public authority to snoop on people to identify this kind of misuse.

Don’t google requesters. There’s usually no good reason, and it has the potential to do a lot of harm.

 

EIR charges curbed by ICO

FOIMan reports on a move by the Information Commissioner to clamp down on charges for environmental information.

Wind turbine in countrysideA new decision from the Information Commissioner moves the regulator’s position on charges under the Environmental Information Regulations (EIR) on from the policy announced in 2016. If the decision stands, it means that public authorities will not be able to charge for environmental information if they wouldn’t be able to charge for it under the Freedom of Information Act (FOIA).

In a decision issued to Folkestone and Hythe District Council the Commissioner  has ruled that a charge of £325 to access environmental information was not reasonable. In effect, the ICO’s decision sets out that it cannot be reasonable to charge for environmental information below the appropriate limit set out in the FOIA fees regulations. Although the fees regulations do not directly apply to EIR, the Commissioner’s view is that the appropriate limit (of £600 for central government and £450 for other public authorities) provides a useful starting point when considering charges under the regulations.

More generally, the ICO are keen to reduce inconsistencies in charging policies in relation to environmental information. In a blog post accompanying the decision, Gill Bull, the ICO’s Director of Freedom of Information states that authorities should avoid routinely charging for environmental information, and is unlikely to be sympathetic when charges are made for information falling beneath the appropriate limit. She links the decision to Parliament’s declaration of a ‘climate change emergency’, pointing out that it is more important than ever for people to be able to play a full and informed part in debate about the environment. This should not be hampered by financial barriers, she argues.

This decision emphasises the important relationship between access to information and the major issues that face society. The ICO will be updating their guidance later in the year to reflect this change in approach.

What we don’t know

FOIMan explains why some truths we cling to about the UK’s FOIA are not quite what they seem.

A few months ago I was delivering some FOI training to a local authority (always available at competitive rates, folks!). I was explaining how far council officers were expected to go when searching for information to answer an FOI request. In particular I stated that if it was known that information had been deleted but still potentially existed on a backup, the backup should be searched.

The council’s FOI officer cautiously picked me up on my assertion. They had, they told me, had a written statement from the Information Commissioner’s Office (ICO) that contradicted me. So surely I was wrong?

The truth is that despite what we are often led to believe, there are some aspects of FOI law that are not certain. The legal system has not yet settled on the ‘right’ answer. This is the case when it comes to debates about information held on backups and whether it is considered held. In the example above, neither I nor the ICO are technically wrong; but then strictly speaking we’re not right either. We’re both interpreting the existing law, and both interpretations are arguable.

This is because English law revolves around the concept of precedent. But precedent can only be set by courts that make a decision beyond a certain stage. In a recent Upper Tribunal decision (LO v Information Commissioner, [2019] UKUT 34 (AAC) (29 January 2019)), Judge Jacobs was critical of the Information Commissioner for treating decisions of the First-Tier Tribunal (FTT) as ‘authoritative statements of the law’. Strictly speaking, they’re not. When it comes to backups, we only have rulings of the FTT to go on, so there is no definitive answer yet on that issue. Interestingly, on this issue, the ICO choose not to accept the FTT’s approach without question in their guidance.

My latest piece for PDP’s Freedom of Information JournalWhat we don’t know (which you can access here) – looks at this issue in more depth – looking at the backups query, but also a couple of other questions which have not yet been answered definitively – perhaps surprisingly. You’ll see that there are disputes between the ICO, the FTT and the s.45 Code of Practice which will only be resolved if those matters reach the Upper Tribunal. It ends by asking what questions you may have about FOIA or the EIRs – as I’ve mentioned before, we’d like to answer some of your conundrums in a future issue of the Journal.

Are Housing Associations subject to EIR?

FOIMan highlights an FTT decision which provides the latest word on accessing information from housing associations.

Despite governments undertaking to examine the addition of housing associations to the Freedom of Information Act’s (FOIA’s) coverage, it has yet to happen. The Information Commissioner is the latest to call for this change.

There has been debate though as to whether Housing Associations are subject to the Environmental Information Regulations (EIRs). Generally the Information Commissioner has decided not, but last year she put the cat amongst the proverbial pigeons with a decision that an East London housing association was subject due to its ‘special powers’. Lynn Wyeth wrote an excellent piece in the Freedom of Information Journal in the Autumn comparing the Commissioner’s decisions on this issue and seeking to explain why the decision in relation to Poplar Housing and Regeneration Community Association (Poplar HARCA) was different. In summary: it’s complicated.

Well, the FTT has now decided that perhaps it isn’t complicated after all: they’ve upheld Poplar HARCA’s appeal and have concluded that it is not subject to the EIRs. In the course of the appeal, the Commissioner in fact suggested that she’d got it wrong in an earlier case (Richmond – FER0700353), which explained the variation. The FTT agreed that the Commissioner had got it wrong, but in their view it was the Poplar decision that was incorrect. 

As with a lot of disputes over the coverage of the EIRs in the last few years, the case revolved around the Fish Legal case that was referred to the European Court of Justice in 2014. That case examined the definition of public authority at regulation 2(2)(c) of the EIRs and the underlying Directive. It concluded that to ‘carry out functions of public administration’, a body had to have been ‘entrusted with the performance of services under a legal regime’; the services had to be of public interest; and it had to have been vested with ‘special powers’ in order to provide those services.

In the Poplar case, the FTT found that Fish Legal had defined ‘legal regime’ as meaning that there had to be a national law entrusting the body with the performance of those services. This was where the ICO’s case fell down: the FTT could not identify such a law. Without the ‘narrow’ definition of a legal regime set down in Fish Legal, the FTT would have taken a different view – but effectively its hands were tied.

For now then, private housing associations will not be subject to FOI nor the EIRs. Until the government either chooses to extend FOI and the EIRs to them, or inadvertently entrusts them with performance of services under another national law. Or until there is a successful appeal to the Upper Tribunal – whichever of these is sooner.