Thursday, 18 August 2011

Is FOI pushing the limit?

As my last blog on vexatiousness got a positive response, I thought I'd take the easy option and repeat the exercise. This time I’m looking at another part of the Act which raises the hackles of requesters everywhere, Section 12 and 'Appropriate Limits'.

Like Section 14, Section 12 'Exemption where cost of compliance exceeds appropriate limit' is not an exemption as such, just a grounds for refusal. If you haven't seen this already, FOI Man gives a very good overview of Section 12 and how it is used. Basically, if pulling the information together for a request will take more than 24 hours (in the case of central government) and 18 hours (pretty much everyone else) to complete then it can be refused.

Section 12 is often where the FOI officer gets caught between the requester and the organisation. The requester can't believe that pulling the information they have requested will exceed 18/24 hours; departments within the organisation can't believe that it won't.

1) the number of times S12 had been included in a DN by year 

2) the breakdown of whether it was upheld (the authority was wrong in applying s12), not upheld (the authority was right) and partially upheld (neither here nor there)

3) the type of public authority involved in the DN. I used very broad categories of central gov, local gov, police, NHS, education and 'other' (which included the BBC, ICO and TFL)

Like all data sets, this does not produce a 'clean' answer. Not every complainant decides to go all the way to the ICO. They may be satisfied by a compromise or simply give up. Not every complaint that reaches the ICO results in a DN.

The results suggested the following conclusions:

1) Whilst I used the number of Section 14 DNs (165 over 7 years) to postulate that the exemption wasn't engaged very often, I believe it's different for Section 12. I counted 185 in total, upheld and not upheld over 7 years (including 2011) of FOI. I think that this reflects the way Section 12 is used by public authorities. Whilst using s14 vexatious is often an outright refusal and the end of the conversation, applying s12 can often be the beginning of a dialogue, narrowing down the request to what is achievable to the authority and useful to the requester.

2) The increase is quite modest, stable in 2007 (20) and 2008 (22), then a rise to 2009 (48) and 2010 (50). 2011 (34) looks like it may eventually exceed the 2009 and 2010 totals but not by much. In the context of the overall increase in requests, does this mean requesters and authorities are clarifying between themselves more? Are requesters getting more reluctant to challenge Section 12 or learning to 'target' their requests better? Are authorities not relying on it as much?

3) The ICO is in most cases supportive of public authorities when it comes to a Decision Notice. Around 82% of DNs dealing with S12 come down on the side of the authority. Like Section 14, Local Government is the most contested with the ICO siding with LAs only 66.7% of the time. Are LAs not as 'good' at applying Section 12? Is the ICO just harder on local authorities?

4) Central Government - interestingly, as it has the higher appropriate limit threshold - was involved in most (over a third) of the Section 12 DNs. In 84% of these the ICO sided with the authority and in only 6 of 68 cases the requester's complaint was upheld. Do requesters make more wide ranging requests ('all documents, correspondence, and memos since 1998...') to central gov? Is central gov simply 'better' at applying s12 correctly? Or is s12 a reflection on the way central gov holds its data? Even if an authority applies s12 'correctly', it may reflect that the data is not held in a way that makes it easier to answer requests. This is a theme running through the recent 'Open Data' consultation, and while I think it's too simplistic an argument (most public sector IT systems were procured to deliver an internal business need as cheaply as possible, and the functionality to produce re-usable anonymised open data for public development was often not considered), the 'way we hold our data' is often behind many applications of s12.

5) Local Gov (19.5%) and Police (15.1%) follow up, though there is a rogue 16.8% in my 'other' category (BBC, TfL etc) which I think reflects the hurried nature of my categorisation rather than anything else. 

Other thoughts 

1) I've not had time to go into detail on the DNs themselves, though it was worth noting that a lot of other exemptions were often involved in these requests. Often s12 may only be relevant to one question in a multiple question request. 

2) Beyond a broad presumption, these quantitative stats can't show some of the good 'qualitative' clarification work that goes on between FOI officers and requesters to understand what is asked for and what can be provided. I think a lot of this goes on, I'm not sure how much on WDTK as opposed to individual email-to-email requests. 

3) The Open Data consultation has mentioned extending the threshold for appropriate limits. This should, in theory, reduce the number of s12 DNs in the future. But as we have seen, central government, with its higher threshold, has the highest proportion of s12 DNs - and almost all of them endorsed by the ICO! I'm not sure raising the threshold would be much more than symbolic at best and at worst not in the best interests of either authorities or requesters. I think I'd rather see more focus and guidance on 'clarification'.

Well, like a 60s novelty act, I've recycled my one hit blog post into a sound-alike follow-up. Back into obscurity now...

Wednesday, 10 August 2011

Is FOI getting more vexatious?

I have been thinking a lot recently about FOI 'vexatiousness', seeing Section 14 appear a lot more often in the ICO Decision Notice RSS feed. Is the committed FOI campaigner right, are public authorities using it more frequently and aggressively? Or is the overworked FOI officer right, do we need to jump through hoops just to hold off those angry repeat requesters?

I decided to carry out my own number crunching experiment to test out these generalisations, using a very simple manual count from the Decision Notices (DN) published on the ICO's website. I thought of making this as an FOI request to the ICO but they would have probably said it was Section 21 'Reasonably accessible'! and they're right - it didn't take long at all.

Well, I'll do anything to avoid getting round to doing the washing up.

I counted: 

1) the number of times S14 had been included in a DN by year 

2) the breakdown of whether it was upheld (the authority was wrong in classing a requester as vexatious) or not upheld (the authority was right) and partially upheld (only three cases and neither here nor there!) 

3) the type of public authority. I used very broad catergories of central gov, local gov, police, NHS, education and 'other' (which included the BBC, ICO and TFL)

Like all data sets, this wouldn't produce a 'clean' answer. Not every complainant decides to go all the way to the ICO. They may be satisfied by a compromise or simply give up. Not every complaint that reaches the ICO results in a DN. You could argue that if a vexatious request is obsessive or forms part of a committed campaign, then it is more likely that the requester(s) will not flinch from contacting the ICO and pressing for a formal DN.

The results suggested the following conclusions:

1) Section 14 'vexatious' isn't engaged very often. I counted 165 in total, upheld and not upheld over 7 years (including 2011) of FOI. Compare that to in excess of 100 DNs so far in 2011 referencing Section 40, 'personal data'. Authorities don't - and can't - use it lightly.

2) The 'shape' of the numbers is broadly in line - perhaps lagging slightly - with that of FOI request volumes overall. A quiet 2005 (0), an upward curve through 2006 (11)/2007 (19) 2010 (27) and a spike in 2010 (41). 2008 is an oddity, with only 5. FOI officers will not be suprised that the 2011 figure (62) has already well exceeded 2010 with only half the year gone.

3) The ICO is in most cases supportive of public authorities when it comes to a Decision Notice. Around 75% of DNs dealing with S14 come down on the side of the authority. Local Governmment is the most contested with the ICO siding with LAs only 69% of the time.

4) Nearly a third (31.5%) of vexatious DNs concern local government. Central Government is up next with 23.6% followed by the Police 16.4%. Does this figure mirror the proportion of requests? The greater number of local gov authorities to make requests to? Is it because its functions are more related to the day-to-day life of the public and therefore the 'vexatious' / 'persistent' mark is a line more likely to be crossed and contested?

5) The NHS has done OK with its requesters. Only 6.1% of s14 DNs relate to the NHS (including GPs). In 90% of these the ICO backed the public authority. Does the NHS get any less requests that central gov, local gov, police or education?

6) The nature of S14 - it's not an exemption as such, just a grounds for refusal akin to 'appropriate limits' - means that a single incident, requester or campaign can skew the figures. The number of vexatious DNs for Education were quite modest until a huge spike around one authority in 2011 put them up above the NHS and 'Other' (which includes the BBC, TFL and ICO in my arbitrary categories).

Other thoughts: 

1) It would be interesting to look at the amount of times S14 has been used on WDTK. Are 'vexatious'/'persistent' requesters more likely to use the public forum than the request submitted by personal email?

2) Are there more vexatious requesters or just more requesters? Therefore the s14 figures increase in proportion?

3) The way the ICO deals with complaints is surely a interesting factor here. The latest Annual Report shows that the ICO improved the speed of dealing with its caseloads. Has this made it less likely to broker compromise between PAs and complainants and more likely to be decisive and issue a DN?

4) Is it the case that authorities are getting more confident in using S14? The 'case law' you can accumulate from FOI DNs around S14 can show the sort of criteria a public authority should be looking for to engage s14 correctly.

Now, back to the washing up...

Tuesday, 2 August 2011

Disclosure in the public interest - Hillsborough

In April 1989 my main concerns were trying to work out how to play the chords to Def Leppard songs and getting my wizard character to 4th level in Dungeons and Dragons. If I wanted to go and see football at the weekend, I would ask my mum if it was OK to go down to Leeds Road and see Town get beaten. The Hillsborough disaster of that month was a shock to me as to so many others who'd stood on terraces and surged towards steel fences and gates at matches before. It could have been any of us. At any game.

I lived in Liverpool for a large chunk of the 90s and the events of Hillsborough were in that city beyond an 'accident' or 'disaster'. They were - and I imagine that they still are - seen as an injustice. For football fans of all teams in the context of the 80s, Hillsborough was the culmination of a decade of prejudicial treatment - wire cage fences, ID cards and media derision. Fans were seen as 'animals' and this prevailing attitude is seen to have fed the circumstances - the state of the stadium, the nature of the policing - that led to the tragedy of that day. Hillsborough was then, combined with surge in football's popularity following the 1990 World Cup, a watershed in the development of the game as we know it now.

Therefore it was with interest that a recent ICO decision notice
has ruled that copies of all briefings and meeting notes provided to Margaret Thatcher in April 1989 relating to the Hillsborough disaster should be disclosed, overruling the Cabinet Office's application of Section 31 'Law enforcement' and Section 35 'Formulation of government policy'. Some information was ruled by the ICO to be correctly exempted under Section 40(2), 'Personal information'.

This has been covered in depth by the BBC, but I felt it was worthy of note in recognising that this FOI request concerned information that is at one level 'history' and at the same time something very 'present' and emotive in the lives of so many.

In terms of Section 31 the Cabinet Office argued:

The public authority has argued that disclosure of the information in question would harm the relationship between the police and general public and that this would result in a reduction of willingness on the part of the public to cooperate with and assist the police, by, for example, providing information to the police.

Despite the age of the information - remember Hillsborough happened the year the Berlin wall fell and George Bush Snr was inaugurated - the ICO ruled that this, arguably very general, application of the exemption was still relevant and engaged. The singular nature of the event is the only thing that can still allow this exemption to apply.

Section 35, must seem for FOI campiagners one of those exemptions that has the potential to undermine the legislation, suggesting locked doors, informal conversations and Parliamentary privilege. The Cabinet Office argued that disclosing the information would have a 'chilling effect' on ministerial discussions. I believe chilling effect arguments can be valid. People need a space to think freely without the fear that an idea floated, then quickly shelved in working towards an objective, is not likely to be disclosed. Such thoughts do not need to be paraded on the same level as the finally agreed objective, which of course should be transparent under FOI.

Yet whilst once again accepting that the exemption was engaged around the type of information requested, the Commissioner did not consider it 'conceivable that the disclosure would have resulted in a chilling effect to Ministerial discussions at the time of the request, given the age and unique subject matter of the information in question'. The ICO emphasised that the information was 20 years old at the time of the request, in the context of the current Government aiming to reduce the traditional 30 year threshold.

For the ICO, in the case of both exemptions, the public interest test falls down on the side of disclosure rather than exemption. By his own admission there is a 'very significant and weighty public interest in favour of disclosure of information relating to the Hillsborough disaster.' I'd have to agree with this one. I don't think that the public interest is always on the side of disclosure but this was a day that affected so many. Firstly in the tragic loss of life and secondly. in the fundamental changes in the way the national game was organised and developed over the next decade.

A difficult and high profile case for the ICO but an example of the Act allowing access to information around central government decision making and the power of public interest. Will this disclosure be more use to the historian in making sense of events or the families in search of justice? Impossible to say. FOI can, at least, provide the information they need to get started or just to carry on the fight.