A Game of Noes*

by | Apr 21, 2012 | Uncategorized | 2 comments

Ever since I went freelance, my FOI-requesting has enjoyed a bit of a revival. Without an employer to embarrass, I’ve found myself asking the Information Commissioner all the questions I’d been wanting to, without fear of a boss or senior manager complaining about it. Every line manager I have had in the recent past would probably not have given a toss, but even so, it’s easier to make mischief when you don’t answer to anyone. I’m operating the don’t-shit-where-you-eat rule of not FOI-ing anyone who might conceivably give me work, and I’m only asking questions that I’m genuinely interested in.

So I didn’t make the two FOIs I’m discussing here for the sake of a comparison exercise – with the Cabinet Office, I really want to see the proposals Newsnight says they have for changing the FOI charging process, while I asked HMRC for George Osbourne’s tax returns because I heard him on the Today programme being asked whether he was a higher rate taxpayer, and frankly, his answers didn’t convince me at all. However, when the responses came back relatively close together, it was impossible not to notice the difference.

This is the HMRC one: 10/10

This is the Cabinet Office one: 0/10

In both cases, the answer to my question was completely negative. HMRC refused to confirm or deny whether they held Osborne’s tax records, while the Cabinet Office told me they had no information about any changes to FOI charging, and referred me to the Ministry of Justice. However the quality of responses was so markedly different, I found myself using them on a training course last week. For anyone interested in making or responding to FOI requests, they’re equally instructive.

HMRC’s response was detailed. Don’t be distracted by the rather po-faced refusal to confirm or deny – it’s a legitimate move under FOI. They’re making a point that the concept of ‘taxpayer confidentiality’ is so important to them, and the prohibitions on disclosure they’re under are so tight, that they simply won’t make disclosures about individual taxpayers at all. I don’t agree with them. I think that there is a significant public interest in the tax records of certain individuals and organisations being open to scrutiny (for example, senior politicians, big companies who operate schemes to pay less tax, the Church of Scientology). But my opinion about the issue of principle is irrelevant. HMRC’s response is entirely legally correct – a prohibition on the disclosure of taxpayer information was introduced in 2005 and strengthened in 2009. One might wonder aloud why, as it headed towards oblivion, the Brown Government made certain that even if a taxpayer consented to the disclosure, it would still be illegal to give out their information under FOI, but that is nevertheless the case. My request for an internal review was a bit of a waste of time. From the outset, I was trying to engineer a situation where someone asked Osbourne for his consent, and as soon as I understood the prohibitions properly, I should have left it at that.

And here is where the comparison comes in. I am convinced that the HMRC answer is the correct FOI one, and giving a benefit of the doubt so large it is probably sentient, for the purposes of this post I will assume that the Cabinet Office’s answer is true. But contrast the quality of the responses.

From HMRC, I have a named FOI contact – should I wish to give them a ring to ask for clarification, I know where to go. I have a clearly formatted, detailed letter setting out what my request was, which exemption they are using, and how it applies. Although it contains a lot of detail, the letter gets to the refusal bit quickly so that if I am the kind of applicant who cares only about the Yes / No, I get it straight away. The bit about the internal review and appeal to the Commissioner is clear and helpfully explained. They offer me a detailed explanation of the background to the legislation that prevents them from disclosing, and even some context from when that legislation was passed (a quote from the Minister, no less). Even if this detail has been cut and pasted from previous responses (I assume they got a lot of similar requests), the letter also addresses specific points I made in my request, so it is the product of specific effort by the respondent, and not just a generic answer. Should I want it, they even include an appendix setting out the detail of the exemption in FOI, and the detail of the other bits of legislation that call it into being. It’s even well-written.

In short, even though HMRC have said No, my request leaves me more impressed than anything else. The person who wrote this response really knows what they’re doing, and is good at their job. More importantly, the clarity and detail with which they have said No makes any appeal to the ICO impossible. Even though my chief aim was mischief, anything further would be vexatious. I hope they don’t mind, but I will be using HMRC’s response to my request in future as an exemplar of refusing properly.

On the other hand, the Cabinet Office’s response was a lip fart. I can’t quite get away from my scepticism – I made my request on Good Friday, and by the Thursday of the next week, despite having less than three working days during a school holiday period, they are able to tell me that they hold no information. But that’ll keep for another time. Whoever tapped out the response appears not to know that the Finance Director of the Cabinet Office signed a formal undertaking last year agreeing to improve the Department’s FOI performance.  They do not inform me how to challenge the decision, they do not tell me how to complain to the Information Commissioner. There is no name in case I want to contact them, and in the first request, not even a reference number for me to quote. They didn’t tell me to piss off and stop wasting their time in so many words, but I think the sentiment is pretty obvious. It’s almost aggressively off-putting and unhelpful.

Don’t get me wrong here, friends. I have no problem with a robust approach to FOI requests. I would defend FOI to the death, but I see no reason why organisations shouldn’t demand precise requests, and I think thatthey should say no when they think a disclosure is genuinely damaging. When I train organisations, I tell them to clarify anything ambiguous (e.g. I can think of five different meanings of ‘year’, and I’m not processing your request until you tell me which one you mean), carry out ruthless (but accurate) estimates to keep requests within the cost limit, and to keep tabs on contacts with applicants who make vexatious requests, the better to make a case for refusal should they cross the line. I do not expect the FOI officer to phone me up to ask if there’s anything else I want while I’m asking or be on first name terms. But this isn’t robust. This is “come back and ask a second time if you want us to do it properly”. HMRC did a quality job first time out, and the more I think about it, my request for an internal review seems pointless. I disagree with their effective refusal to do one on procedural grounds, but I’m certainly not going waste anyone’s time complaining about it. The Cabinet Office on the other hand have forced me to ask for an internal review by not giving a toss about the quality of their response. You’d think a bit of strategic advice and assistance to account for the disparity between their version of events and Newsnight’s would be in their interests, but no. I get 33 scant words. They clearly regarded this as a momentary distraction, rather than a legal obligation and an opportunity to show a commitment to transparency and good customer service. I’m not challenging their response for the sake of it – I’m challenging it because it’s crap.

So whatever the rights and wrongs of the taxpayer confidentiality issue are, and regardless of whether Newsnight was right about the Cabinet Office’s role in FOI changes, HMRC’s FOI folk deserve a pat on the back and the Cabinet Office’s team ought to be thoroughly ashamed of themselves.



* I’d like to tell you that this is the worst pun I’m ever going to come up with, but I’m sure there is worse to come.