30th September 2022
The Freedom of Information Act of the United Kingdom is not an impressive statute.
I have known this from the beginning, for I was a government lawyer when the Act took effect.
I even attended meetings of the now notorious “clearing house” at the Cabinet Office that considered certain complex and/or cross-governmental requests.
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The Act has no bite – unless you want to spend a considerable amount of time challenging decisions all the way to court.
If a public authority does not want to give you the information requested then it will usually find a basis for not doing so.
There is perhaps no more insincere a genre of official correspondence than FoI letters saying that exemptions apply, additional time is needed and balancing exercises need to be conducted – all of which are, in reality, delaying tactics which end up with no information being willingly disclosed.
Everyone concerned knows this – those requesting the information, the FoI officers, and their internal clients.
It makes you think of this classic Onion story:
Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.
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But.
From time to time, FoI requests may be useful.
And in respect of the “absolutely devastating” legal advice previously discussed on this blog – see here and here – FoI requests may be interesting.
This is partly because by publishing the advice on 2 September 2022 the government waived legal advice privilege in that advice.
The usual go-to privilege exemption for government in respect of FoI requests for matters concerning legal advice is, in my view, no longer available for the government here.
And by going to an external law firm, rather than using the government legal service, the usual go-to exemption of commercial interests is less strong for the government, as there is a public interest in openness about whether this procurement actually provided value for money.
The immediate publication of the advice on the gov.uk website also raises a further public interest in favour of disclosure, given that it appears to have been an attempt to bounce the privileges committee.
My FoI requests are here, where you will be able to follow their (lack of) progress.
Each request seeks disclosure of particular information and there is method in the madness of how I have arranged and framed the requests – in particular how they are arranged and framed so as to strengthen the (inevitable) appeals.
I have no illusions that the government will not disclose this information happily, and so I am thinking backwards from the (inevitable) appeals.
“Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.”
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My motivation, for what it is worth, has little or nothing to do with whether the former Prime Minister is disciplined or not by the privileges committee.
That is a matter for the committee and parliament, and I do not really care either way, as long as the committee and parliament are satisfied.
My concern, as a former government lawyer, is that there is something deeply wrong for any government (of any party) to use and publish legal advice in this manner.
Legal advice is legal advice, and government communications are government communications, and there should be little public overlap.
And this is especially the case where it appears an opinion was sought not for legal advice, but to be published and publicised so as to influence a parliamentary committee and to place public and media pressure on that committee.
It would not matter if that was Boris Johnson or Jeremy Corbyn or Elizabeth Truss as Prime Minister.
Something wrong happened here, and it really should not happen again.
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Thank you for doing this. I am pretty sure your cynicism justified, but it will be interesting to have the process live-blogged.
He would have got away with it if it wasn’t for that meddling blogger.
Would make Sir Humphrey proud.
If you want a role model to follow for FOI requests, you should take a look at Jason Leopold, a journalist at Bloomberg in the US. He’s on twitter so maybe you’re already familiar with him @JasonLeopold. He recently posted about a FOIA request from 5 years ago that turned up an interview transcript of Obama with some unnamed journalists shortly before he left office, and a 3 year old request resulting in emails within the Navy about hiding the USS John McCain when Trump visited Japan.
Many thanks for this follow up.
I have a related questions that could be relevant.
– When exactly was the request for the opinion made: internally and then externally?
– Was the internal request turned down necessitating external engagement?
– Has the date for return of Pannick opinion been specified in instructions?
Reason for these questions is to check if Mr Johnson request to stay as interim PM in the summer period could have been geared to slot in this little matter of legal opinion.
The problem with FOIA – any similar legislation – is what I’d describe as the “I’d tell you, but then I’d have to kill you…” defense.
A FOIA request can be refused by the government on the grounds that the subject of the request is “top secret” (or equivalent).
Says who?
Common sense would suggest that it should be possible to:-
1. Identify through a pre-defined classification scheme subjects that *are* confidential (e.g. military capabilities) and provide clear, objective guidance to handle requests for such
2. Apply the same or similar classification scheme to information collected in response to a FOIA to determine if it has inadvertently/collectively crossed the line in to “classified” status (it is possible for lots of small items of harmless data to become sensitive through aggregation)
3. Implement an independent panel to adjudicate disputes where the government of the day claims confidentiality – for example, to enact a panel of the House of Lords and Judiciary, staffed only from individuals that hold or have previously held “Develop Vetted” clearance [so they can if needed review the data in question], but set such that the HoL panel has an “opposition majority” (i.e. where the majority of members are not from the government of the day).
It should be trivially easy to partition the information of government to ensure that information of higher classification does not leak in to lower rated content, thereby allowing the lower rated material to be disclosed to FOIA without concern over compromise. If/when an administration tells you that something which, prima facie, should not be “classified” is being witheld for that reason, it should be blindingly obvious to all concerned that the administration is lying.
Not incompetent. There can be no “benefit of the doubt” in that regard. If a government can’t be trusted to securely handle information that could potentially be FOIA released, there is no way we should trust them with anything more sensitive. And let’s be honest, our government has been handling classified information since the Romans occupied the country. It isn’t as though they lack the practice.
FoI requests are hardly, if ever refused because the requested information is secret, classified or otherwise “eyes only” – the usual reasons are far more mundane and prosaic.
Certainly, nothing David has asked for here would be withheld on such bases.
And that rather makes a mockery of having FOIA in the first place.
What is the point of having FOIA on the statute books if the government’s response to an information request is going to be: “No, we’re not giving you the information as requested… because we don’t want to.” ?
Perhaps it might be possible to recursively submit a FOIA request about FOIA requests:
How many have been received?
How many have been granted?
Of those not granted, what were the justifications given?
Of those granted, what department[s] was [were] involved?
And so on.
If there’s a problem with FOIA, that might actually root it out and make it sufficiently visible to prompt the government to take the law a bit more seriously.
““No, we’re not giving you the information as requested… because we don’t want to.” ?”
Well, the reasons tend to be a bit less obviously prosaic than that (although they will often amount to the same thing), and – despite oft-repeated criticisms of the ICO – the appeals process is often successfully exercised, albeit at the cost of considerable time.
But for all its faults, FoIA does have demonstrable value, and it is (generally) sufficiently well-respected by UK government departments that they will often make material available on a proactive basis (“publication schemes”) in order to avoid the predictable interest these documents will attract and the overhead which would otherwise attract to dealing with FoI requests for them.
It’s not perfect, but what is?
And to play Devil’s Advocate for a moment, there are circumstances in which a public organisation will have a legitimate interest in withholding information (the “chilling effect” of potential wholesale disclosure is A Thing), and it’s a hard balance to achieve.
That’s why I’ve been gratified to see that The Clearing House has finally had the kicking it deserved: I used to hate dealing with it, because I was more than confident about the appropriateness of my disclosure decisions (I was very much an advocate of openness) and it used to rankle immensely that some clueless SPAD in the CH would decide to block my disclosure decisions on the basis of some spurious and non-existent “political” concern.
Nice try but they are going to collect those together and, given the volume of them, treat them as being vexatious whilst also telling you the cost to cover their response will exceed the prescribed limit of 60 pence unless you confine your requests to a period covering 12th September 1955 to 12th September 1955 and then notify that those particular records were stolen by aliens.
Seriously. In one of my efforts I received a response that if interpreted generously implied that the minister concerned had lost the letter I wished to gain sight of down the back of a filing cabinet prior to moving office and something to do with volcanoes.
You’re absolutely right about ‘vexatious’ (fave ‘get-out-o-jail’ free card) and spurious cost limits. You might be interested to see the request for an internal review (they ALWAYS uphold the original decision) I submitted to the Cabinet Office today:
Dear Cabinet Office,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Cabinet Office’s handling of my FOI request ‘In the last 5 years, how many times have Cabinet Office officials lied in an FOI Response?’.
Dear Cabinet Office
Your refusal to respond to my FOI Request seems to be based on 2 objections:
The first is that you find my language offensive, the second is that it “lacks any serious purpose.”
Let me address the first objection. I apologise if you found my language too direct and it caused you offence and distress. Being 82, I am of that generation that was used to ‘plain speaking’. Old habits die hard, I’m afraid, and I’m genuinely sorry. Could I therefore attempt to make amends and rephrase my Request:
‘In the last 5 years, how many times have Cabinet Office officials stated something in an FOI Response that they knew was untrue?’
Should you regard ‘untrue’ as offensive, I would be happy to substitute ‘false’.
I’m assuming you concede that I have supplied the proof that false information was provided in a FOI Response? The CO email addressed to the Treasury Solicitor that I eventually succeeded in copying and pasting into my Request establishes beyond any possible doubt that the information provided in your initial FOI Response was false, and it’s difficult to imagine any circumstances in which the official responding was unaware of that. They had only to look at the relevant email correspondence between Theresa May, the Cabinet Office, the AGO, and finally the GLD and Treasury Solicitor over a period of a single month (September 2021) to respond to my Request by providing the truthful information. This is not to say, of course, that false information has not been provided by the CO on a number of other occasions – ascertaining this was the serious purpose of my FOI Request.
I will not dwell on the defence offered by the CO for diverting a letter addressed to the Parliamentary Commissioner (and beginning ‘Dear Parliamentary Commissioner, I wish to complain about the Treasury Solicitor)’ to the Treasury Solicitor herself. To justify your action on the grounds that you were sending it to the GLD because the ‘subject matter of the letter pertained to that department’ is beneath contempt, and I have been advised by a family friend who is a QC that this defence would never stand up in court.
Turning to your description of my Request as ‘lacking any serious purpose’. This is very worrying. Do you really think a question about the number of times a Government Department has provided false information in a Freedom of Information Response is a matter that lacks ‘serious purpose’?
Do you think that providing information in a Freedom of Information Response that you know to be false is not a matter of serious concern? Would you not agree that providing information in a FOI Response that you know to be untrue undermines the democratic foundations of our society? Doesn’t it represent an abuse of the freedom of Information Act, and since the Act has the status of law would constitute unlawful behaviour.
Is the Cabinet Office not pledged to uphold and defend the FOIA? Given Judge Hughes’ recent condemnation of the CO’s Clearing House unit’s abuse of the FOIA and the fine of £500,000 imposed on the CO for their breach of people’s Data Privacy rights, one would have expected you would be doubly keen to demonstrate your commitment to the Act. The CO is, after all, the office closest to the Prime Minister (who – at this time – was Boris Johnson) and the Prime Minister’s office.
And would you not agree that if you can’t rely on a Cabinet Office FOI Response to provide information that is true, then the rule of law is also undermined?
I hate to disagree with you but I think this is a matter of very serious concern.
It is for these reasons that I ask you to reconsider your refusal to respond to my FOI Request on the grounds that it is ‘vexatious’ and ‘lacks any serious concern’. As I said before, this is just one occasion where you have provided false information, an occasion where I have provided proof of your providing false information. My Request was designed to establish on how many other occasions this has happened. I recognise the retrieval of this information may place time pressures on CO staff which may exceed the £600 time cost limit – if that is the case, I am happy to reduce the scope of my Request to 4, or 3, or even 2 years.
I look forward to a constructive response to my request for an internal review.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/i…
Yours faithfully,
No offence Dudley, but asking any government department how many times it has lied is always going to be dead in the water: not only because government is not in the business of self-incrimination, but also because broadly speaking the act gives you a right of access to information held: you can’t seriously believe that any department would actually maintain a list of knowingly dishonest/misleading replies to FoI requests.
https://ico.org.uk/for-organisations/guide-to-freedom-of-information/what-is-the-foi-act/#4
With my emphasis:
“The Act covers all recorded information held by a public authority”.
If you want to beat them, first you have to understand the rules of the game…
I should include (from the same ICO guidance):
“The Act does not cover information that is in someone’s head. If a member of the public asks for information, you only have to provide information you already have in recorded form. You do not have to create new information or find the answer to a question from staff who may happen to know it.“
No offence taken but after disputes over the last 3 yrs with thoroughly corrupt judges, the JCIO, the Treasury Solicitor, GLD lawyers, Mother Theresa May (and boy, am I going to have fun exposing the scandals she’s been involved in – including her very own Pincher-gate scandal, and, of course, the much better known Windrush betrayal and unlawful acts, and the PHSO, the least trusted Ombudsman on the Trustpilot site, I’ve learnt it doesn’t matter how much irrefutable evidence of corrupt, illegal behaviour you have, you’ll never get anywhere unless you have power (from your position in society – I’m a retired Uni lecturer so I’ve none) and/or you’re very wealthy (I’m not).
All I was seeking to do, Kijiri, was shame or embarrass but as only about 300 people read the whatdotheyknow excellent site, it won’t help me very much. I understand the rules of the game, it’s just a game I can’t win. Now if I was tech savvy, I could do a podcast (see the amazing influence of ‘serial’ last week) or Tic-Tok (someone social media savvy please help me set up a ‘Grandads against corruption’ site.
My v. intelligent friend thinks I’m tilting at windmills, and wasting the last years of my life but I think I’m staving off dementia by keeping my mind active. Can I recommend you look at some of my FOI Requests (89?) on the whatdotheyknow website.
You FOI letter us an excellent example to us all!
I hope you have sent copy to your MP, Minister for Cabinet Office Nadim Zahawi and also to Simon Case as Head of Civil Service. They should all get acquainted with what is clearly a serious matter.
May I be as sharp and clear minded as you when (here is hoping) I get to be 82y old!
You are 100% right to pursue, well done.
Thanks to all for your supportive comments. I’ve rarely known a David Green blog to provoke so many indignant responses (alas, my original one didn’t feature in the 11 responses posted). Should there be a procedure by which all those who have concerns about an issue – in this case the way organisations are undermining the Freedom of Information Act – can band together as an effective campaign group?
One shouldn’t lose sight of an even greater danger: there’s one thing worse than manipulation of the FOIA (like the CO’s Clearing House unit ‘antics’) and that’s suddenly declaring you are not bound by the FOI Act. This has happened to me recently.
The JCIO (they purport to investigate complaints about Judges’ misconduct) must be the most corrupt, deliberately incompetent Regulator in this country, and believe me there’s stiff competition. And judges must be the MOST protected species in this country. The JCIO ensures that… assisted by the Judicial Office, and the MoJ
Having become very ‘vexed’ with my FOI Requests, the JCIO now tell me they won’t respond to any future ones because they are not ‘bound by the FOIA’ – i.e. they can ignore my FOI Requests.
The JCIO is supposedly the INDEPENDENT investigator of judges’ misconduct but it’s now going to be immune from public scrutiny? It gets worse. I’ve just discovered this Independent investigator is ‘an arms -length body of the Ministry of Justice’ who ARE bound by the FOIA … mmm, I smell a rat, I see it floating in the air.
How can one trust the JCIO? I’ve used SAR (subject access request) email evidence to prove that last year, the JCIO was collaborating with the Judicial Office by forwarding to them every email relating to an investigation of my complaint about a senior judge … whilst knowing that at the same time, the JO was involved in a separate but related complaint about the same judge.
And I’ve recently been told the JO is also not bound by the FOIA and is also an ‘arms-length body of the MoJ! This is deeply worrying. How can anyone feel confidence in any JCIO investigation (and verdict). I feel a bit like Kenneth Williams in ‘Carry on Cleo’ – ‘Infamy, infamy… they’ve got it in for me’.
By the way, the JO’s role is to ‘serve and support’ judges, the MoJ’s to ‘ensure that justice is adhered to’. It’s curious the MoJ remained silent for 10 years about the largest miscarriage of justice in British legal history: the illegal persecution of over 900 Post Office sub postmasters. So many people knew about this awful, corrupt business. And the MoJ failed to notice the injustices of Theresa May’s Windrush legislation’.
“‘What is truth?’ said jesting Pilate? And would not stay for an answer.” Francis Bacon’s essay on ‘Truth’ [he could have added ‘justice’ to ‘truth’]
Dudley Jones