Will FOI be humbled?

The Cabinet Office

FOIMan gazes into his crystal ball to see what will result from the government’s response to the House of Commons’ Humble Address.

Amongst everything else that happened this very unusual week (although aren’t they all lately), the House of Commons made a ‘humble address’ to the Government requesting access to a document outlining plans for a no-deal Brexit, and perhaps more controversially, communications between certain named civil servants and special advisers relating to the prorogation of Parliament. These communications were to include those in private email accounts, WhatsApp, text messages and various other cited forums.

Late on Wednesday, Michael Gove in his capacity as Chancellor of the Duchy of Lancaster (and therefore in charge of the Cabinet Office and no-deal planning – and come to that, government FOI policy), wrote to the instigator of the humble address, Dominic Grieve, refusing to provide the communications. He argued that it was an improper use of the humble address mechanism to seek such communications of officials. He further suggested that this information would be exempt under FOI, mentioning section 35 (formulation of government policy) and section 36 (specifically maintenance of ministerial collective responsibility), and concerns about breaching the Data Protection Act (as others have pointed out, it would be the General Data Protection Regulation that would potentially be breached, but that’s an academic point in this regard).

A humble address is not an FOI request. And with Parliament prorogued, it is difficult to know what Dominic Grieve and colleagues can do about the Government’s effective partial refusal. So what happens next? And is it going to prove possible for the communications to be disclosed? I’ve polished my crystal ball to gaze into the future. A caveat – all of the following assumes that a political deus ex machina fails to come to the rescue. And assumptions in the current climate are, of course, hugely dangerous… But excepting a change in government or similar that results in a more sympathetic ear to this request, here are my predictions.

First, even if Dominic Grieve hasn’t followed up with an FOI request for the refused communications, I’m sure that the Cabinet Office is right now receiving a deluge of almost identical requests asking for them.

Second, the Cabinet Office will (eventually, as they will almost certainly delay responding to after the 20th working day) refuse these requests claiming variably that they are vexatious (poor harassed Dominic Cummings); exceed the cost limit;  and claiming a) the communications are not held, and b) that even if they were, they are exempt under s.35 and/or s.36, or that disclosure would breach data protection laws so they are exempt under s.40(2) of FOIA. It is very easy to challenge the arguments that they will use (see below), but that won’t stop them.

Third, several requestors will (having had no luck with an internal review), complain to the Information Commissioner. The Information Commissioner will discard the vexatious argument (as long as you haven’t been too rude) and the cost argument. We’ve seen before what happens when Michael Gove’s officials use private channels to communicate about their work – so the Information Commissioner would rule that the communications were held as long as they related to government business (which the discussion of prorogation clearly is). Anything not related to the conduct of government business would be excluded so many of the privacy concerns raised by Mr Gove will not be at issue (Gove suggests in his letter that compliance with the humble address would require some sort of intrusive intervention, but as the Commissioner indicated in the decision I’ve alluded to here, and in her guidance, such a search would merely involve asking the individual concerned to supply relevant correspondence – there is no question of anyone else searching through their private communications).

In respect of the communications which are judged to be ‘held’ for the purposes of the request, it is certainly the case that communications will be or contain personal data of the individuals listed in the humble address. However, data protection laws do not prevent disclosure of personal data in all circumstances. Public authorities are expected to consider if there is a legitimate interest in disclosure of the requested data (in this case, Michael Gove himself alludes to the ‘legitimate desire from Parliamentarians on all sides to understand the impact that leaving the EU without a deal would have’ and there is an obvious legitimate interest given the controversy around prorogation of Parliament, including accusations that the Prime Minister lied to the monarch, in the public being able to find out for themselves what the truth of these allegations may be); whether disclosure is necessary to meet that interest (there isn’t another way to find out how and why this decision was reached); and whether the rights and interests of affected individuals override the identified legitimate interest (highly unlikely – these are senior high profile officials who should expect to have their work scrutinised – it’s part of the job). It therefore seems unlikely that disclosure of the requested communications would breach GDPR, so the Commissioner will rule that the personal data exemption does not apply to some (at least) of the communications. The arguments in favour of s.35 and/or s.36 will probably be harder to discount. The exemptions are relatively easy for a determined government department to apply – s.35 is phrased so broadly that it is easy to show that communications fall within its scope. The use of s.36 turns on the opinion of a Minister being ‘reasonable’ – something which whilst it’s easy to snigger at, is easier to demonstrate in law. However, both s.35 and 36 are subject to a public interest test. In the circumstances (and for pretty much the same reasons as there is a legitimate interest in disclosure of personal data), it seems likely that the Commissioner would plump for disclosure of at least some of the communications described. The Commissioner will issue a decision notice to this effect.

There is a risk during this period that the communications are deleted, the officials concerned claiming that they didn’t realise they were subject to FOI. This would put them at risk of prosecution under s.77 for deliberately destroying information which is subject to a current request. However, it is very difficult to successfully prosecute under this provision as the Commissioner would have to demonstrate that the deletions were a deliberate act, designed to thwart the FOI requests, within 6 months of them happening. Despite undertaking several times to make it easier for the Commissioner to prosecute, the government has failed to make this change.

Assuming the Cabinet Office doesn’t suddenly claim that the communications have mysteriously disappeared, their next step will be to veto disclosure. Of course they could just appeal to the First-Tier Tribunal (FTT), but following the Independent Commission on FOI’s report in 2016, the government (in the guise of Matt Hancock at that time) undertook to only use the veto after the Commissioner had ruled, and before any Tribunal involvement, so that the executive would not be seen to be overruling the judiciary.

Beyond this, if anyone still cares (which they might on a point of principle), there may be a judicial review of the use of the veto. Given the ruling of the Supreme Court in the ‘Black Spider Memos’ case in 2015, it would not be surprising if the government lost. Several times. Those who can think back that far will recall that the Supreme Court’s ruling resulted from an appeal against the application of the ministerial veto by the then Attorney General, a certain…Dominic Grieve. Ironically then, Dominic Grieve’s defeat in the past may well help him win in the future. It’s like something from science fiction.

By now, the Cabinet Office (or Boris’s feted SPADs) will be calculating, the year is 2025 (at least). In this dystopian future, nobody gives two hoots whether Nikki da Costa (or whoever) thought closing Parliament for five weeks 6 years before was once considered a sensible option.

It may well be that in this scenario, Parliament and the Freedom of Information Act have been shown to be toothless in their scrutiny of the government. I’m hoping someone sees a flaw in my reasoning above and there is a way to force the Cabinet Office to provide these communications whilst they are still useful to ongoing debate. By rights it seems they should be disclosed – at least in part – but by the time anyone is able to enforce that on a reluctant government, it will in all probability be too late to help anyone save historians of these ‘interesting times’.

How to be an FOI Officer

FOIMan brings you his latest article for PDP – and news of a new training course for FOI Officers.

When I first worked as an FOI Officer back in 2003, setting up procedures and systems in the Greater London Authority, the biggest problem was that nobody  (in the UK at least) had done this before. There was some guidance available but broadly speaking every organisation had to make up its approach to FOI from scratch. Things have improved a bit since then, but a lot of FOI Officers are still making it up as they go along to a great extent.

One of the ways that can improve is through academic research. This year we’ve been blessed with not one, but two studies of FOI practices. One is focussed on London’s local authorities, and the other on councils throughout the UK. In my latest piece for the Freedom of Information Journal, I’ve summarised the findings of these important pieces of research.

Once again, I’ll be answering your questions about FOI in a future issue of the Freedom of Information Journal, so do drop me a line if there’s a subject you’d like me to address.

I’m also pleased to announce that my working relationship with PDP is expanding. Earlier this year I was honoured to accept an invitation to head up the exam board for PDP’s Freedom of Information Practitioner Certificate. And even more exciting than that…this Autumn we will be launching a new one-day course for FOI Officers, based on my recently published The Freedom of Information Officer’s Handbook. The first dates for ‘The Role of The FOI Officer’ have been announced, beginning in London on 31 October, with subsequent courses running in Manchester, Glasgow and Belfast over the next year. If you’d like to discuss the best ways to manage and improve FOI performance, or want to more readily decipher decision notices, do please consider booking to join me on one of the days. Details of the course can be found on PDP’s website.

Don’t forget as well the other events I’ll be speaking at this Autumn, most of which are still taking bookings. I hope to see you there!

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.

Upcoming events: Autumn 2019

FOIMan highlights events he will be speaking at in Autumn 2019.

Paul speaking at podium

Paul speaking at IRMS 2019 conference (© Alison Drew 2019)

Last week I ran a workshop at the IRMS Public Sector Group on the relationship between FOI and records management. It was great fun and thanks again to Elizabeth Barber and Sarah Graham for inviting me, and to everyone who was there for taking part so enthusiastically. I’m hoping to return to speak at the PSG again later in the year, so watch this space.

I thought I’d highlight some other forthcoming public events that I’ll be speaking at. In addition to the below, don’t forget you can bring me to your organisation to deliver training, workshops and briefings – get in touch for a quote if that’s of interest. And I’m always willing to consider invitations to speak at free-to-attend industry/professional events, so just let me have details if you are looking for a speaker.

Please note that all links below are to external sites that I have no control over. Should you have any questions about these events or courses, or the websites, please get in touch with the relevant organisation.

12 September: I’ll be chairing a workshop on Effective Records and Information Management in Edinburgh. Understanding Modern Government are offering a £50 discount off the normal rates to readers of this blog. To obtain the discount follow the relevant link below and complete the company’s form.

Charity/Education/Local Gov/ Health £345.00+VAT

Central Gov – £395.00+VAT

Private Sector – £445.00+VAT

27 September: ‘The Linchpin: the role of Freedom of Information Officers in opening up the UK’s public authorities’, free ODI Fridays talk at the Open Data Institute

10 October: Effective Records and Information Management in London

7 November: Handling Subject Access Requests (private sector focus) for UMG Training in London

19 November: Handling Subject Access Requests (public sector focus) for Understanding Modern Government in Manchester

28 November: Excel at handling Freedom of Information requests for Understanding Modern Government in London

 

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.