Recently in Information Commissioner Category

The Information Commissioner's Office have eventually got around to a Decision Notice regarding the Spy Blog FOIA request which aimed to test whether the new Conservative / Liberal Democrat Coalition Government had really changed the culture of secrecy with which the Labour government used to try to hide its incompetency from the public, regarding the controversial Terrorism Act section 44 stop and search without reasonable suspicion powers for Police Constables in Uniform.

Even though the balance of public interest test must surely have changed even more in favour of disclosure, the ICO has weaselled out of ruling in favour of ordering full disclosure, again, by not considering anything which happened after our FOIA request back in June last year.

Is there a coded message that if we re-submit the request now that the new law on stop and search is actually in force, we might be more successful this time ?

As is usual with all of our FOIA requests, the Information Commissioner has found the the Home Office broke the law, yet again, by failing to meet the statutory timescales for answering our request - why can't they be at least fined each time that they do this ?


Reference: FS50374879

ICO

Freedom of Information Act 2000 (Section 50)
Decision Notice Date: 21 July 2011

Public Authority: Address:

Home Office
Peel Building
2 Marsham Street
London
SW1P4DF



Complainant: Address:

[name and address]

Summary
The complainant requested information relating to Authorisations for stop and search powers under section 44 of the Terrorism Act 2000. The public authority withheld the information on the basis of the exemption at section 24(1), and further decided that, in all the circumstances of the case, the public interest in maintaining the exemption outweighed the public interest in disclosure.

The Commissioner upheld the public authority's decision to withhold the information on the basis of section 24(1). He however found the public authority in procedural breach of the Act.

The Commissioner's Role

The Commissioner's duty is to decide whether a request for information made to a public authority has been dealt with in accordance with the requirements of Part 1 of the Freedom of Information Act 2000 (the "Act"). This Notice sets out his decision.

Background

2. Prior to 18 March 2011, Authorisations for stop and search powers under section 44 of the Terrorism Act 2000 could be granted by the Secretary of State to police forces across the United Kingdom for a maximum of 28 days. In November 2007 the complainant requested information from the public authority regarding Authorisations approved for stop and search powers under the Terrorism Act 2000. The public uthority's refusal to disclose the information requested on the basis of the exemption at section 24(1) was subsequently upheld by the Commissioner in a decision notice issued on 8 February 2010.1

1 The decision is available at:
http://www.ico.aov.Uk/~/media/documents/decisionnotices/2010/FS 50198 733.ashx


3. Following the European Court of Justice's (ECJ) decision in Gillan and Quinton v the United Kingdom (Application no. 4158/05) in January 2010, the Secretary of State issued a Remedial Order2 amending parts of the Terrorism Act 2000. The Order which came into force on 18 March 2011 repealed sections 44 to 47(g) relating to Authorisations for stop and search powers. The repealed sections were however replaced with provisions which include granting senior police officers the power to authorise the use of stop and search powers for a maximum of 14 days.

2 Prevention and Suppression of Terrorism. Terrorism Act 2000 (Remedial) Order 2011 No.631

The Request

4. On 11 June 2010 the complainant requested the following information in relation to stop and search powers under the Terrorism Act 2000:

The Time, Date, Duration, and Geographical extent (either in words or on a map or plan etc) of:

1. Authorisations which the Secretary of State has been informed of under section 46(3)
2. Authorisations which have not been confirmed by the Secretary of State and which have lapsed under section 46(4)
3. Authorisations modified by the Secretary of State under section 46(5)e
4. Authorisations which have been cancelled by the Secretary of State under section 46(6), and
5. Authorisations renewed in writing under section 46(7)
6. The name of the Minister who signed each authorisation and when the approval was given.


5. He specified that the information provided should cover the period from when the Terrorism Act 2000 (referred to hereinafter as the Terrorism Act) came into force to the date of the request. The public authority confirmed that the Terrorism Act came into force in February 2001. The request was therefore treated as covering related information from February 2001 to 11 June 2010.

6. The complainant had made substantively the same request to the public authority in November 2007 regarding Authorisations for the power to stop and search under the Terrorism Act 2000.

7. On 6 July 2010 the public authority issued a refusal notice relying on the exemptions at sections 24(1) and 31. It however advised the complainant that it needed additional time to consider the public interest fully.

8. On 27 September 2010 the public authority responded following a number of additional extensions to consider the public interest. It noted that the complainant had requested similar information in November 2007 which was refused. The public authority further noted that the Commissioner did not uphold the subsequent complaint in relation to the refusal to disclose the information in November 2007. The public authority therefore explained that it was withholding the information requested on the basis of section 24(1) for the same reasons already considered by the Commissioner in the previous complaint. It however provided the complainant with a list of Ministers who had confirmed authorisations within the period covered by the request.

9. On 7 November 2010 the complainant requested a review of the public authority's decision.

10. On 6 December 2010 the public authority wrote back to the complainant with details of the outcome of the internal review. The original decision to withhold the information requested was upheld.

The Investigation

Scope of the case

11. On 7 February 2011 the complainant contacted the Commissioner to complain about the way his request for information had been handled.

12. In light of the disclosure by the public authority in relation to item 6 of the request, the Commissioner clarified with the complainant (on 21 March 2011) that the scope of the investigation in relation to item 6 would still cover 'the name of the Minister who signed each authorisation issued between February 2001 and 11 June 2010 and
when their approval was given'.

13. The information covered by the scope of the investigation in relation to items 1-5 of the request also remained as outlined in paragraph 5 above.

14. The complainant specifically asked the Commissioner to consider the points outlined below.

15. According to the complainant, the balance of the public interest had changed substantially (since his previous request in November 2007) in favour of full disclosure for the following reasons:

• The Coalition Government had effectively suspended the use of section 44 stop and search powers,
• The public authority had admitted many clerical errors which resulted in hundreds or thousands of illegal stops and searches, something which could not have happened if the limits and geographical extent of each section 44 Authorisation had be made public,
• The ECJ judgement in Gillan and Quinton v the United Kingdom made the Terrorism Act illegal, and
• It is important for public debate and for Parliamentary scrutiny of new legislation that the geographical locations and the dates and times of the 'use and abuse' of these section 44 powers should be clear and transparent.
• The complainant also suggested that subsequent to both his requests of 2007 and 2010, individual Police forces had disclosed information relevant to his requests. In his own words, " it appears that individual Police forces such as the Metropolitan Police Service have disclosed, the time, date, and geographical extent of the Section 44 Authorisation requests they have made to the Home Secretary."

Analysis

Exemptions

16. It is important to note from the outset that the Commissioner's investigation was restricted to matters which were relevant at the time of the request and not after the request was made.

17. As noted above, the Commissioner issued a decision notice on 8 February 2010 in case FS50198733 in relation to the request of November 2007 ("the previous decision notice").

18. Items 1-5 of both requests (i.e. November 2007 and June 2010) are substantively the same. However, the request of November 2007 was not restricted to the time, date, duration, and geographical extent (either in words or on a map or plan etc) of the Authorisations.

19. Item 6 was not part of the request of November 2007.

20. The public authority explained in its letters of 27 September and 6 December that, in its view, paragraph 58 of the decision notice in case FS50198733 had satisfactorily dealt with the issue of the time, date, duration, and geographical extent of the Authorisations.

21. The public authority further explained to the complainant that section 24(1) equally applied to item 6 of the request for the same reasons considered by the Commissioner in the previous decision notice.

Section 24(1)

22. Information is exempt on the basis of section 24(1) if it does not fall within section 23(1) and is required for the purpose of safeguarding national security.

23. The Commissioner finds that items 1-5 of the request were exempt on the basis of section 24(1) for the same reasons already explained in the previous decision notice especially at paragraph 58.

24. In terms of item 6, the public authority further relied on the previous decision notice to the extent that the Commissioner had specifically noted that disclosure of details of the Authorisations such as dates, times, and geographical extent could enable terrorists ascertain the likelihood of their activities coming to the attention of the police or
anti-terrorist agencies.

25. The Commissioner also considers that disclosing the information requested under item 6 would have revealed information about the Authorisations and the dates they were approved. This information could be used by terrorists in conjunction with information obtained from reconnaissance activities to ascertain the likelihood of their activities coming to the attention of security agencies.


That is utter nonsense.

The ICO and the Home Office might as well argue that revealing that there are about 30,000 Metropolitan Police Officers somewhere within the 125 mile circumference of the M25 Orbital motorway around London, could somehow reveal to terrorists "the likelihood of their activities coming to the attention of security agencies."

The FOIA request was not asking for precise details of roadblocks or patrol patterns or any background intelligence information, only for what is clearly laid down in the text of the Terrorism Act 2000 i.e. only the Time, Date, Duration, and Geographical extent of these supposedly strictly time and location limited exceptional police powers.

How can innocent members of the public be expected to obey a law which is amended in secret by the police and the bureaucrats and rubber stamped by the politicians ?

26. In summary, the Commissioner finds that the information requested in items 1-6 above was correctly withheld on the basis of the exemption at section 24(1).

Public Interest Test

27. The exemption at section 24(1) is qualified by the public interest test. The Commissioner has therefore to consider whether in all the circumstances of the case the public interest in maintaining the exemption outweighed the public interest in disclosure.

28. The public authority relied fully on the public interest arguments considered in the previous decision notice in support of its decision to withhold the information requested.

29. The Commissioner is persuaded that the public interest assessment in the decision notice applies equally to this request. He has however further considered whether the specific public interest arguments advanced by the complainant had shifted the balance in favour of disclosure at the time of the request in June 2010.

Balance of the public interest arguments

30. According to the complainant, the Coalition Government had effectively suspended the use of section 44 stop and search powers.

31. The Commissioner agrees that the power to grant Authorisations under section 44 to 47(g) of the Terrorism Act was repealed by the Remedial Order. However, Authorisations to stop and search under the Terrorism Act can still be granted by senior police officers. The difference is that the provisions in sections 44 to 47(g) of the Terrorism Act no longer apply. Also, given that the request was made in June 2010 before the Remedial Order came into force in March 2011, sections 44 to 47(g)
were in any event still in force at the time of the request.

32. Therefore, at the time of the request, the public interest was certainly not in favour of disclosure on the grounds that the use of section 44 had been suspended. In addition, the public interest was not then in favour of disclosure on the grounds that powers for Authorisations for stop and search under the Terrorism Act no longer existed. Indeed, the powers are still in use, but no longer by virtue of sections 44 to 47(g).
Therefore, for the same reasons he found in the previous decision notice that there was a stronger public interest in not disclosing details of the Authorisations, he also finds that the public interest in disclosure did not outweigh the public interest in maintaining the exemption at the time of the request in June 2010.

33. According to the complainant, the public authority had admitted many clerical errors which resulted in hundreds or thousands of illegal stops and searches, something which could not have happened if the limits and geographical extent of each section 44 Authorisation had be made public.

34. The complainant further argued that it is important for public debate and for Parliamentary scrutiny of new legislation that the geographical locations and the dates and times of the 'use and abuse' of these section 44 powers should be clear and transparent.

35. Whilst the complainant did not provide any specific evidence to support the above assertion, the Commissioner is aware that there have been quite a number of incidents where the use of section 44 powers was questioned by the media, courts and politicians. It is accurate to say therefore that the use of section 44 powers has not been without
controversy.

36. However, the balance the Commissioner has to strike is between protecting information on national security grounds and disclosure to promote transparency and accountability. The Commissioner is not persuaded that the public interest in disclosing the information about Authorisations requested in items 1-6 outweighs the significant public interest in protecting the security of the United Kingdom and its
citizens.

37. According to the complainant, the ECJ judgement in Gillan and Quinton v the United Kingdom made the Terrorism Act illegal.

38. The Commissioner has already noted that the government introduced a Remedial Order amending part of the Terrorism Act following the ECJ ruling in Gillan and Quinton v the United Kingdom.

39. The ECJ judgement was handed down on 12 January 2010. Given that Authorisations for stop and search powers under the Terrorism Act could still be granted up until 18 March 2011, the Commissioner finds that, at the time of the request in June 2010, the public interest was still in favour of maintaining the exemption at section 24(1). Also, for the reasons already noted above at paragraph 32 alone the
Commissioner in any event finds that the public interest in maintaining the exemption outweighed the public interest in disclosure.

40. The complainant also suggested that subsequent to both his requests of 2007 and 2010, individual Police forces had disclosed information relevant to his requests. In his own words, " it appears that individual Police forces such as the Metropolitan Police Service have disclosed, the time, date, and geographical extent of the Section 44 Authorisation requests they have made to the Home Secretary."

41. The complainant did not provide any specific evidence in support of the above assertion. In any event, the Commissioner would not have taken into account information which was disclosed after the request of 11June 2010.

Procedural Requirements

42. Under section 10(1) a public authority must comply with the provisions of section 1(1) promptly and in any event no later than 20 working days.

43. Under section 10(3) a public authority may extend the time for compliance where it is necessary to do so in order to properly consider the public interest.

44. Under section 17(3)(b) a public authority must complete its public interest test within a reasonable period in the circumstances.

45. The Commissioner considers that in no case should a public authority take more than 40 working days to consider the public interest. The public authority took over three months to conduct the public interest test in relation to the information withheld on the basis of the section 24(1) exemption.

46. The Commissioner therefore finds the public authority in breach of
section 17(3)(b).

The Decision

47. The Commissioner's decision is that the public authority dealt with the
following elements of the request in accordance with the requirements
of the Act:
•The public authority correctly withheld the information requested in
items 1-6 on the basis of the exemption at section 24(1).

48. However, the Commissioner has also decided that the following
elements of the request were not dealt with in accordance with the Act:
• The public authority breached section 17(3)(b).

Steps Required

49. The Commissioner requires no steps to be taken.

Right of Appeal

50. Either party has the right to appeal against this Decision Notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC &GRP Tribunals,
PO Box 9300,
Arnhem House,
31, Waterloo Way,
LEICESTER,
LEI 8DJ
Tel: 0300 1234504
Fax: 01162494253
Email: informationtribunal@tribunals.gsi.qov.uk.
Website: www.informationtribunal.gov.uk

51. If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.

52. Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this Decision Notice is sent.

Dated the 21st day of July 2011

Signed

Graham Smith

Deputy Commissioner
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

The Campaign for Freedom of Information has analysed the appalling delays experienced by the majority of people who have had to resort to making a Complaint to the Information Commissioner's Office, regarding their Freedom of Information Act requests.

"Severe delays" in investigating freedom of information complaints "undermining" FOI Act

[...]

The report analyses nearly 500 formal decision notices issued by the ICO in the 18 months to 31 March 2009. The decisions were made under the FOI Act and the associated Environmental Information Regulations. It finds that -

  • on average it took 19.7 months from the date of a complaint to the ICO to the date on which the ICO's decision on the complaint was issued

  • in 46% of cases it took between 1 and 2 years from complaint to decision

  • a quarter of formal decisions took between 2 and 3 years while 5% of cases (23 complaints) took more than 3 years

  • the longest case took 3 years and 10 and a half months

  • only 24% of decisions were issued within 12 months of the complaint.

The report also found that on average the ICO's investigation into a complaint did not begin until 8 months after the complaint had been received. In 28% of cases, there was a delay of more than a year before the investigation began and 19 cases waited more than 18 months. One complaint had been with the ICO for 22 months before the investigation began.


[...]


According to the report's authors, Maurice Frankel and Katherine Gundersen: "A delay of 2 to 3 years or more in reaching a decision, as happens in over a quarter of cases means that even if the information is ultimately disclosed it may no longer be of interest or use to the requester. Requesters who experience such delays may be so frustrated by the experience that they become reluctant to use the Act again or to complain to the ICO about refusals. Delays may also mean that authorities carry on repeating mistakes over long periods, affecting many requests, before the ICO puts them right. Finally, if authorities calculate that they can safely withhold information for several years before the Commissioner compels disclosure, a minority may do so deliberately, just to 'buy time'."

[...]


ICO response to report by the Campaign for Freedom of Information

[...]

Whilst only 10% of complaints result in a Decision Notice, these cases take longer to resolve than we would like

[...]

Despite the improvements already made with additional funding from the Ministry of
Justice, the popularity of FOI means that the number of complaints we are receiving is
outstripping forecasts

Our experience with the long, frustrating delays regarding the bureaucratic Freedom of Information Act process, is not made any less unacceptable, because other people seem to be suffering the same.

The ICO should not be allowed to refuse a Complaint, if a public body has exceeded the 20 working days or "no more than 40 working days" reasonable suggested time limit for Internal Reviews. At the very least they should officially remind the public body of this limit, and criticise any further delays, as deliberate flouting of the spirit of the FOIA when the ICO finally does issue a Decision Notice.

The Ministry of Justice also needs to provide sufficient monetary resources to allow the ICO to clear its backlog of FOIA complaints, by hiring its own, independent staff,rather than by embedding Whitehall civil servants "on secondment".


Another 12 weeks wasted in the Information Commissioner's Office complaints queue:

The original FOIA request was made back on Wednesday 14th November 2007

23rd February 2009
CASE REFERENCE NUMBER FS50198733
Dear XXX
We last wrote to you on 25 November 2008 about the Freedom of
Information Act complaint you made to the Information Commissioner.
This complaint concerns the request you made to the Home Office on 14
November 2007. This request concerns the number of authorisations
under the Terrorism Act 2000.
Your case remains in the queue of Team 2 (Police and Justice).
Please accept my apologies for the delays that you are experiencing.

The ICO allocated a case number to this complaint back on Tue, 06 May 2008

The Freedom of Information Act is not working properly !

Your case will be allocated when it reaches the front of our queue
and a Complaints Officer has capacity to investigate it in full
detail. We are unfortunately unable to provide updates about either
the content or progress of your case until it is allocated.
I will write to you every twelve weeks prior to allocation and a
Complaints Officer will write to you to inform you when your case is
allocated.
I hope this email is clear and helpful.
Yours sincerely
David McNeil

Complaints Officer

THE INFORMATION COMMISSIONER'S OFFICE.
____________________________________________________________________

The ICO's vision is a society where information rights and
responsibilities are respected by all.
If you are not the intended recipient of this email (and any
attachment), please inform the sender by return email and destroy all
copies. Unauthorised access, use, disclosure, storage or copying is
not permitted.
Communication by internet email is not secure as messages can be
intercepted and read by someone else. Therefore we strongly advise
you not to email any information, which if disclosed to unrelated
third parties would be likely to cause you distress. If you have an
enquiry of this nature please provide a postal address to allow us to
communicate with you in a more secure way. If you want us to respond
by email you must realise that there can be no guarantee of privacy.
Any email including its content may be monitored and used by the
Information Commissioner's Office for reasons of security and for
monitoring internal compliance with the office policy on staff use.
Email monitoring or blocking software may also be used. Please be
aware that you have a responsibility to ensure that any email you
write or forward is within the bounds of the law.
The Information Commissioner's Office cannot guarantee that this
message or any attachment is virus free or has not been intercepted
and amended. You should perform your own virus checks.
__________________________________________________________________
http://www.ico.gov.uk or email: mail@ico.gsi.gov.uk
Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510

When the Information Commissioner's Office get around to considering the complaint regarding last November's Freedom of Information Act request for the locations and durations of the statutory Authorisations made under section 44 of the Terrorism Act 2000, i.e. the supposedly temporary areas where normal Police stop and search powers are exceptionally changed to become stop and search without reasonable suspicion powers ?

The ICO wrote in May that they had at least a 12 week backlog.

They have now written again, in August, having allocated the complaint to the

Team 2 (Education, Police and Justice) queue

However, there is no estimate of when this complaint will be looked at, let alone resolved.

Click on the HO Terrorism Act 2000 s44 Authorisations category archive, for the full saga of delays so far.

Text of the (paper snail mail) letter:

The Information Commissioner has made a Decision, in favour of the Foreign and Commonwealth Office, refusing disclosure of the just names and job titles of the Russian and UK diplomats expelled in July 2007, over the failure to extradite or prosecute Andrei Lugovoi, for alleged involvement in the radioactive Polonium 210 murder of British citizen Alexander Litvineko in London in November 2006.

See the Information Commissioners Office Decision Notice FS50179353 (.pdf)

These names and job titles are obviously known to all foreign governments with embassies in London or Moscow, and to the international press corps and other corporate or national intelligence agencies.

The Exemptions claimed were not, as you might expect, Section 24 National Security or Section 27 International Relations but Section 40 Personal Data

We think that it is wrong for senior diplomats, who, after all, publicly represent the people of the United Kingdom, to be hidden under such a veil of secrecy, when neither National Security, nor their own personal safety are at any risk whatsoever from an FOIA disclosure.

Just because it is a "longstanding diplomatic custom", not to name the individuals expelled in such Cold War games, that is an obsolete concept in this internet age.

The Foreign & Commonwealth Office publishes an official list of accredited diplomats at foreign embassies and consulates in London, for protocol purposes.

Every other embassy and consulate in the world, also knows all the other accredited members of the Diplomatic Corp in the capital city to which they are posted, again, primarily for protocol and precedence reasons, to determine who gets invited to, and where they are seated at, official ceremonies and functions.

It seems that the FCO has cast aspersions on our FOIA request, with the insulting claim that:

12 The public authority recognised the fact that in certain circumstances there is a legitimate interest in knowing the identities of officials, for example, where senior civil servants are accountable for high profile projects. However in this case it said that any interest in the identities of the diplomats expelled as a result of the Litvinenko diplomatic dispute could be described as "curiosity" rather than " a legitimate interest that would further a common good". The public authority referred to a decision of the Information Tribunal when it had commented on the difference between what is in the public interest and what is of interest to the public.
That Information Tribunal decision was about prurient interest in medical records, home addresses etc. - which were not was requested in our FOIA request, which only asked for the names and former job titles of the expelled diplomats.

The FCO itself already publishes the London Diplomatic List, which names the possible Russian diplomats who were expelled.

See also the Spy Blog article London Diplomatic List - can you spot the expelled Russian diplomats ?

30. The complainant has suggested that the information he has requested is of an anodyne nature, i.e. the names and job titles of diplomats employed by the public authority in Moscow and their counterparts and that this is information that one might expect to be made readily available. However it is important to stress that what has actually been requested are the names and job titles of diplomats expelled as a result of a very high profile diplomatic dispute. The murder of Alexander Litvinenko and the subsequent diplomatic expulsions generated a significant amount of media interest and the Commissioner is of the opinion that were the identities of the diplomats to be revealed there would be a very real risk that they would be subject to undue press interest or pressure to the extent that disclosure could be considered unfair.

What has the amount of, or lack of "press interest" got to do with a Freedom of Information Act disclosure ??

31. The public authority has also suggested that they may be stigmatised at having been expelled. The public authority has not shown any evidence to justify its concern and the Commissioner makes no comment on this point one way or another. However he does feel that given that the diplomats involved were expelled as a result of a situation over which it appears they had no control, they should be protected as far as possible from any adverse consequences. It would not be unreasonable to suppose that their careers, given the sensitivity of their roles, could be disadvantaged in some way were their identities to be revealed.

If any of the expelled diplomats were actually intelligence officers working under diplomatic cover, then they should never be sent on such a mission again - their cover is blown to all the world's intelligence agencies etc.

The people who will be stigmatised, are all the people who have been working at the London and Moscow embassies, who have, for normal career progression or personal family reasons, left and gone back home or been posted elsewhere, at around the same time, but who have not been expelled.

Transparency and openness through the requested FOIA disclosure would prevent these people from being stigmatised as possible spies.

32. The complainant has argued that the identities of the expelled diplomats will be known to other governments with embassies in Moscow and London and to the foreign press corps. Therefore he has suggested that the public authority's decision to refuse his request is unjustified. The Commissioner sees no contradiction between the public authority's decision to withhold the names of the diplomats and the fact that this information may be known to diplomatic staff that would have an operational need to know this information. Equally, the fact that a relatively small group of journalists may have speculated on the identities of the diplomats concerned is not in itself a reason to order wider disclosure of the information.

How does this make any sense at all ? There is no "wider disclosure" which could possibly affect the expelled diplomats or spies - every intelligence agency, terrorist group, organised criminal gang etc. already knows their identities and probably lots of other details.

33. The complainant has highlighted the decision of the Information tribunal in Ministry of Defence v Information Commissioner and Mr R Evans [EA/2006/0027] (.pdf) in support of his position. In this case the Tribunal decided that the Ministry of Defence should release the details of staff at the Defence Export Services Organisation, including staff operating in sensitive areas overseas. The Commissioner believes that the circumstances in that case were quite different to the circumstances in this case. In that case the Tribunal's decision was influenced by the fact that staff details were already widely available. The Commissioner rejects the complainant's argument that the decision in the Ministry of Defence case somehow acts as a precedent which he is obliged to follow.

That Information Tribunal Decision even allows the disclosure of the names, job titles and office contact details etc. of dozens of Ministry of Defence staff working in Saudi Arabia, where the MoD claimed that they were at particular risk of terrorist attack.

The same cannot be said of the former diplomats who have been sent home from London and from Moscow, who do not face any such risk at all..

This decision by the Information Commissioner is wrong,

It just seems to support rule by "faceless bureaucrats" including Russian Federation ones, who should not be protected by the UK Freedom of Information Act 2000 exemptions at all.

We have until the 3rd of September to lodge any Appeal with the Information Tribunal.

We cannot afford to hire a barrister to represent us before the Information Tribunal, and so this capitulation to faceless bureaucracy by the information Commissioner will probably go unchallenged.

See the full text of the Decision below:

There are still lots of conspiracy theories and misinformation being bandied about regarding the extraordinary Polonium-210 radioactive poisoning murder of Alexander Litvinenko - just keep an eye on the moving east Revision History of the relevant Wikipedia page, and you will see for yourself.

The UK Government has done little to clarify the matter properly, and it has become part of the New Cold War with Russia.

Meanwhile, our little attempt to get a bit of information confirmed officially, which every other Government in the world, and many news agencies etc. already know, but which is being denied to the British public and media, is progressing very slowly.

The Information Commissioner's Office have now started to investigate the refusal of the Foreign & Commonwealth Office to disclose the just the names and job titles of the four Russian Federation diplomats and the four United Kingdom diplomats who were expelled from London and, tit-for-tat, from Moscow last summer, following the failure of the UK authorities to extradite their prime murder suspect Andrei Lugovoi from Russia.

If any of these diplomats were actually intelligence agents working under diplomatic cover, that is not something which one would expect to be made public by their respective Governments. However, since there is no chance of any of them ever being posted to similar roles overseas, simply naming them cannot put their lives in any more danger than normal.

Just being a normal British, or indeed, Russian, diplomat in some parts of the world, can either enhance your personal safety, or it can make you into a target, regardless of whether you are an intelligence agent as well.

  • The original FOIA request was made in July 2007,
  • the FCO refused it and internally reviewed it and still refused it in August 2007,
  • the complaint to the ICO went in during August 2007.
  • the Information Commissioner's Office allocated a Case Number in October 2007,
  • and now the ICO have started to look at it in May 2008.

All these delays in the Freedom of Information system favour the secretive Central Government rather than the legal rights of members of the public.

Text of paper letter from the ICO:


The Information Commissioner's Office is still overloaded with a backlog of Freedom of Information Act complaints.

They still have not allocated a Case Officer to the complaint about the Home Office and their refusal to disclose the geographic or time / date details about where and when the supposedly temporary, strictly time and location limited Terrorism Act 2000 Section 44 stop and search Authorisations are, or are not, in effect.

Please accept my apologies for the delays you will experience prior to this case being allocated. I will write to you again every twelve weeks to inform you of the status of your complaint in relation to Team 2's queue and we will notify you when a case worker is assigned to it.

This means that they assume that there is now going to be a minimum 12 week delay before they even start looking into the details of the complaint.

This is not acceptable - it is over 3 years now since the Freedom of Information Act 2000 came fully into force, and the number of actual FOIA requests being made has gone down since then.

See also these Parliamentary Written Answers on the backlog of cases at the ICO

Commons Hansard - Written Answers - 14 May 2008 : Column 1571W


[...]

At 31 March 2008, the number of cases awaiting investigation by the Information Commissioner were 1,363 for freedom of information casework and 1,237 for data protection casework.

Additionally, due to the volume of cases referred to the Information Commissioner under data protection, there were 2,250 cases awaiting classification as at 31 March 2008. Of these cases, it is estimated that approximately 60 per cent. would be resolved within 30 calendar days and 85 per cent. within 90 calendar days.

[...]

Between April 2007 and March 2008 the average length of time from receipt to commencement of investigation was 69 days for the Freedom of Information Act cases and 30 days for Data Protection Act cases. The average length of time to close an investigation once commenced, was 182 days from for Freedom of Information Act cases and 45 days for Data Protection Act cases.

These disproportionate delays, both by Central Government Departments and by the Information Commissioner's Office etc. are make a mockery of any claims that the Freedom of Information Act has somehow lead to any effective change towards public transparency and openness in the British bureaucratic state

Email from the ICO:

The Office of Government Commerce have emailed to say that the High Court date for their appeal against the decision of the Information Tribunal ordering the full publication of the Home Office Identity Cards Programme early Gateway Review reports, has now been brought forward by a day, and is set to start a 3 day hearing this coming for Monday 3rd March 2008 at 10:00am 10:30am , at the Royal Courts of Justice, in the Strand, (Court number still to be decided).


UPDATE: from the Daily Cause List:


ADMINISTRATIVE COURT

[...]

COURT 2

Before MR JUSTICE STANLEY BURNTON

Monday 3 March, 2008

At half past 10

FOR HEARING

CO/4438/2007 Office Of Government Commerce v Information Commissioner S Office

CO/5491/2007 Office Of Government Commerce v Information Commissioner

[...]


According to the Financial Times the Office of Government Commerce, a creature of Her Majesty's Treasury, headed by Chancellor soon to be Prime Minister Gordon Brown is appealing against the Information Tribunal's decision to uphold the Information Commissioner's decision to order the OGC to publish in full, the documents requested in our Freedom of Information Act for the Stage Zero and two Pre-Stage Zero Gateway Review reports into the Home Office's controversial and hugely expensive Identity Cards Programme.

The Freedom of Information Act 2000 Section 59 Appeals from decision of Tribunal does allow for an appeal against the decision of the Information Tribunal to be heard by the High Court, but only on a point of law

59. Any party to an appeal to the Tribunal under section 57 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be-

(a) the High Court of Justice in England if the address of the public authority is in England or Wales,
(b) the Court of Session if that address is in Scotland, and
(c) the High Court of Justice in Northern Ireland if that address is in Northern Ireland.

We are mystified as to what "points of law" OGC can possibly argue before the High Court.

How much money in legal fees will all these pointless appeals end up costing the taxpayers ?

Gordon Brown is already reneging on his recent promises about "open government" or public transparency and accountability. He does not have to wait to take over as Prime Minister, he could have ordered the documents to be released disclosed already, since the OGC is directly under his control as Chancellor of the Exchequer. It seems unlikely that such an infamous micro-manager, would not be fully aware of the OGC decision to waste further public money on legal costs in this matter.

We are awaiting details of any future High Court dates for this case, which could possibly be done via written submissions without a formal hearing. Hopefully the High Court will decide to reject the OGC appeal.

About this blog

This United Kingdom based blog has been spawned from Spy Blog, and is meant to provide a place to track our Freedom of Information Act 2000 requests to United Kingdom Government and other Public Authorities.

If you have suggestions for other FOIA requests,  bearing in mind the large list of exemptions, then email them to us, or use the comments facility on this blog, and we will see  what we can do, without you yourself having to come under the direct scrutiny of  "Sir Humphrey Appleby" or his minions.

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Please feel free to email us your views about this website or news about the issues it tries to comment on:

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Watching Them, Watching Us - UK Public CCTV Surveillance Regulation Campaign
UK Public CCTV Surveillance Regulation Campaign

NO2ID Campaign - cross party opposition to the NuLabour Compulsory Biometric ID Card
NO2ID Campaign - cross party opposition to the NuLabour Compulsory Biometric ID Card and National Identity Register centralised database.

Gary McKinnon is facing extradition to the USA under the controversial Extradition Act 2003, without any prima facie evidence or charges brought against him in a UK court. Try him here in the UK, under UK law.
Gary McKinnon is facing extradition to the USA under the controversial Extradition Act 2003, without any prima facie evidence or charges brought against him in a UK court. Try him here in the UK, under UK law.

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FreeFarid.com - Kafkaesque extradition of Farid Hilali under the European Arrest Warrant to Spain

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Parliament Protest blog - resistance to the Designated Area restricting peaceful demonstrations or lobbying in the vicinity of Parliament.

Petition to the European Commission and European Parliament against their vague Data Retention plans
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Save Parliament: Legislative and Regulatory Reform Bill (and other issues)
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Open Rights Group

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Tor - the onion routing network - "Tor aims to defend against traffic analysis, a form of network surveillance that threatens personal anonymity and privacy, confidential business activities and relationships, and state security. Communications are bounced around a distributed network of servers called onion routers, protecting you from websites that build profiles of your interests, local eavesdroppers that read your data or learn what sites you visit, and even the onion routers themselves."

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Home Office Watch blog, "a single repository of all the shambolic errors and mistakes made by the British Home Office compiled from Parliamentary Questions, news reports, and tip-offs by the Liberal Democrat Home Affairs team." - does this apply to the Conservative - Liberal Democrat coalition government as well ?

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Committee to Protect Bloggers - "devoted to the protection of bloggers worldwide with a focus on highlighting the plight of bloggers threatened and imprisoned by their government."

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Icelanders are NOT terrorists ! - despite Gordon Brown and Alistair Darling's use of anti-terrorism legislation to seize the assets of Icelandic banks.

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I'm a Photographer Not a Terrorist !

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Power 2010 cross party, political reform campaign

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Cracking the Black Box - "aims to expose technology that is being used in inappropriate ways. We hope to bring together the insights of experts and whistleblowers to shine a light into the dark recesses of systems that are responsible for causing many of the privacy problems faced by millions of people."

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Open Rights Group - Petition against the renewal of the Interception Modernisation Programme

Yes, Minister

Yes, Minister Series 1, Episode 1, "Open Government" First airtime BBC: 25 February 1980

"Bernard Woolley: "Well, yes, Sir...I mean, it [open government] is the Minister's policy after all."
Sir Arnold: "My dear boy, it is a contradiction in terms: you can be open or you can have government."

FOIA Links

Campaign for the Freedom of Information

Office of the Information Commissioner,
who is meant to regulate the Freedom of Information Act 2000 in England, Wales and Northern Ireland.

Scottish Information Commissioner,
who similarly regulates the Freedom of Information Act (Scotland) 2002

Information Tribunal - deals with appeals against decisions by the Information Commissioners.

Freedom of Information pages - Department for Constitutional Affairs

Friends of the Earth FOIA Request Generator and links to contact details for Central Government Departments and their Publication Schemes

UK Government Information Asset Register - in theory, this should point you to the correct Government documents, but in practice...well see for yourself.

Access all Information is also logging some FOIA requests

foi.mysociety.org - prototype FOIA request submission, tracking and publication website

Blog Links

Spy Blog

UK Freedom of Information Act Blog - started by Steve Wood, now handed over to Katherine Gundersen

Your Right To Know - Heather Brooke

Informaticopia - Rod Ward

Open Secrets - a blog about freedom of information by BBC journalist Martin Rosenbaum

Panopticon blog - by Timothy Pitt-Payne and Anya Proops. Timothy Pitt-Payne is probably the leading legal expert on the UK's Freedom of Information Act law, often appearing on behlaf of the Information Commissioner's Office at the Information Tribunal.

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