???!!!

I was originally going to write a blog about why I was opting out of the care.data process, but as I was struggling to make it work, Jon Baines tackled the same subject from the same perspective and got it note perfect. It is spoiled only by some twit who can’t even write a comment competently. You should read it (the blog, not the comment). As I went to delete my version, I found something I wrote before Christmas, and decided not to publish because I thought it might annoy a group of people amongst whom I am already unpopular.

On reflection, there is no better reason to publish anything. So here goes:

For several months, the blogger Mike Sivier has been writing about his attempt to get information from the Department for Work and Pensions about mortality statistics for people undergoing the assessment procedure for Employment and Support Allowance. Sivier’s case is that the DWP’s processes are drawn-out and stressful, and directly or indirectly lead to the deaths and suicides of applicants. Last month, Sivier received a decision from the Information Commissioner upholding the DWP’s decision that his request was vexatious. DWP claimed that Sivier’s request was part of a deliberate, orchestrated campaign to inundate the Department with requests on the topic, and the ICO agreed.

When Sivier wrote his blog in June announcing his intention to make the FOI request, he ended it with these words (his emphasis). “I strongly urge you to do the same. There is strength in numbers.” As he noted later, the comments underneath that blog warmed to the theme, with one person talking about swamping DWP with requests. While waiting for his request to be answered, he followed up with these comments about Iain Duncan Smith:

“If a person knows that their actions are causing people to die, and does nothing about it, then an observer may rightly conclude that this person wants those deaths to take place. There’s a word for people who cause others to die – with the intention of causing them to die.

That word is “murderer”.

Or in this case, “mass murderer”.

The net is closing, Iain Duncan Smith.

And just in case that wasn’t enough:

And to any DWP interlopers, reading this site because it is on a ‘watch list’: This is a very dangerous time to be working for that organisation. People who help others to commit murder are accessories to the crime and may also be convicted for the offence.

I regret to say it, because I think the DWP’s policies are uncivilised and inhumane, and I would like to see FOI used to establish this. But Sivier’s request was doomed from the outset. An orchestrated campaign and statements like those above is all the DWP needs to refuse, and all the ICO needs to concur. Not only will Sivier almost certainly never get his information, anyone else who asks will be probably get refused as well. Sivier’s obvious sincerity about the issue may persuade the Tribunal, but it’ll be a long time in coming, even if it happens. I think people should be entitled to insult politicians. But it may kill their opportunity to make FOI requests if they do, so it should not be done idly.

I was not unhappy when Alan Dransfield’s health and safety bandwagon came spectacularly unstuck at the Upper Tribunal; I thought it was the right decision. I think many of the ICO and Lower Tribunal decisions made in Dransfield’s wake are correct. Mr Dransfield regularly sends me angry and accusatory emails in the early hours, so my schadenfraude is already being punished. Nevertheless, campaigning FOI applicants have to accept a new reality, no matter how public-spirited their intentions. The FOI scales are now gently tipped in favour of the public authority. I’ve written an article for the Guardian’s website saying that this is a good thing, and I stand by that. But Dransfield – the case and the man – have made FOI requesting a minefield for the campaigner. It’s clear that the decision will result in more refusals, a few of which may not be justified, especially as the ICO is chiefly interested in clearing up and preventing backlogs. They will probably seize the opportunity to uphold competent vexatious refusals as a way of closing cases and meeting targets.

Look at the ICO guidance, which reflects the Upper Tribunal decision, but is a potential goldmine for hair-trigger refusals. Vexatious is not an option only for the most extreme of cases (p3) and a request can be rejected if it can be said to have a disproportionate or unjustified effect (p6). The list of indicators of a vexatious request is long, and includes ‘unreasonable persistence’, ‘intransigence’, ‘personal grudges’ and ‘unfounded accusations’. If you make an FOI request, you need to know this list just as well as the FOI officers at whom it is aimed, and avoid the pitfalls it describes.

So make a choice, FOI applicants. Do you want to get information or make accusations? You can make noise with the information you get, but that may be less fun. You can write endless blogs about how you have been denied the truth if you’re refused as vexatious, but frankly, you’re going to end up sounding like a flat-earther. Facts do sometimes get ignored, but harsh words and strong opinions may kill your request.

FOI is a means to an end. If you are campaigning, the FOI request is how you get the information to make your point. Making an FOI request itself makes no point at all. If you lose sight of this, you’re sunk. If you send off your FOI request with trumpets and fireworks, it looks like you want attention, not information. I’ve been guilty of this myself occasionally, and I won’t make that mistake again. No matter how strongly you feel about your issue, if you accuse people of being murderers and criminals, the ICO guidance will work against you. It does not matter if you think this is right or wrong; no amount of FOI requests and blogging will change it.

I wonder whether some applicants load their FOI requests with polemic on the basis that because an FOI request has to be read in order to be answered, it’s a way of forcing their foes to read their views. Doing it on What Do They Know only increases the sense of theatre. This is pointless. Most of an FOI request is read only by the FOI team. S0me FOI officers don’t even reveal the applicant’s identity to their colleagues, so why would they share the paragraphs of bile?

A senior officer is much more likely to see a complaint or a press story than the full text of an FOI request. An enthusiastic campaigner recently wrote about an encounter with a senior officer who had been dealing with his requests, deriding the idea that the person concerned failed to recognise his nemesis. But I believe the officer. I bet most FOI applicants are indistinguishable from each other when you’ve got more than a thousand requests a year to deal with. Senior officers in the public sector spend their entire lives having fingers metaphorically and literally jabbed in their faces. Sometimes they deserve it, often they don’t. But the crucial thing is that most of them get used to it. In my time as a relatively junior FOI officer, I was accused of corruption, conspiracy, and wilful neglect of social care clients (NB, I am not a social worker, was not one when this accusation was made and the people in question were not social care clients). I’ve been called a Freemason, a shit-shovelling lackey, and a murderer. I deleted the emails or put the phone down. Nobody loses sleep over what the What Do They Know Warriors think of or say about them, and if you think your targets are any different, you’re kidding yourself. Applicants who load up their FOIs with invective are pouring it over the heads of the FOI officers and no-one else. At worst, they’re making life tiresome for people who may be among the few in the organisation who might conceivably be on their side.

If all you’ve got is strong opinion, you might as well be walking around the headquarters of your target organisation with a placard. Here’s a tip; nobody in the organisation cares and all the passers-by think the guy with the placard is mad. This is where FOI comes in. It gives you facts. With facts, your campaign has a spine rather than just flapping around for the sake of it. This is is true whether you are a minor league blogger, a high-profile campaigner, or a journalist. The facts may not make a difference; your target may be impervious to criticism now matter how well-founded. Look at Hillsborough. Everyone knew what the truth was, but only the Hillsborough Independent Panel forced the deniers to eat their lies.

Decide what you’re doing; if you want information, you’re more likely to get it without a crowd-pleasing running commentary. If what you want is the opportunity to bang on about whatever it is that bothers you, enjoy your freedom of speech. But don’t be surprised if you end up closing off your opportunity to make FOI requests.

And before I depart, a quick summary for those that do want to make effective requests:

1. Decide what information you want. Ask for it. If your request has an introduction, a prologue, footnotes, and great rhetorical flourishes, cut them out. Nobody cares. And if you really believe there is a conspiracy, why not try slipping your request subtly under the radar, rather than using the FOI equivalent of a skywriter?

2. Avoid sensational language, as it plays into a vexatious refusal. If you can’t prove ‘corruption’, ‘lies’, ‘incompetence’ (NB: proof is not the same as strong belief), keep that to yourself, at least until after you’ve made the request.

3. Do not encourage others to join in with your crusade. You cannot manufacture the public interest. If lots of people spontaneously make requests, that is evidence of genuine public sentiment, but anything deliberate will be refused.

4. Vexatious has no public interest test. Neither does the FOI cost limit. It is entirely legally correct to leave these considerations aside when using those provisions, and a refusal will not be overturned because the public interest was not looked at.

5. The ICO is not, and is not supposed to be, the people’s champion. The Tribunal will make only limited concessions to the applicant representing themselves. FOI is a legal process. Take it, yourself and your campaign seriously.