On Tuesday, the self-styled “Private Prosecutor” Marcus J Ball announced to the world that he had Done An FOI.
“I have sent an FOI request to St Thomas’s NHS Trust requesting confirmation/proof that Boris Johnson wasn’t lying about being admitted there or the severity of his condition. The PR timing is just too perfect. I fear that he may be dodging responsibility by becoming a victim.”
When challenged on the wisdom of his request, he claimed that it was his ‘duty’ to ask:
“We have a duty to ask, even if we suspect they’ll blank us. It only took me 5 minutes to do that tiny bit of civilian side scrutiny. It’ll be on the record that he was doubted“.
My first instinct was that the Trust should refuse the request as vexatious. As is often noted, S14 of the FOI Act doesn’t define ‘vexatious’ so the meaning of the word has been scrutinised in multiple ICO decisions and Tribunal cases. The notorious Dransfield case resulted in useful guidance on what might constitute a vexatious request. One possibility is that the request lacks a serious purpose or value, and I think this could fairly be applied to Ball’s request. He is plainly aware that his request is unlikely to receive an answer (“even if we suspect they’ll blank us” and “We have a duty to ask the question regardless of whether or not we think they’ll allow it to be answered.” He is also happy to impugn the integrity of the thousands of people who handle FOIs, saying in another tweet that “Also, in my experience some people working in FOI offices have a moral compass. Occasionally.”
Ball’s purpose is to put “on the record” his doubts about Johnson’s version of events. The FOI Act lacks a purpose clause that explains what it is for, but sending an FOI request is plainly not an appropriate way to make a point. Either you want the information or you don’t – making performative FOIs like this one undermine the system, especially at a time of national emergency. When politicians want examples of stupid FOIs to attack the whole system (they’ve done it before, and they’ll do it again), I guarantee that Ball’s effort will be chosen.
But on reflection, there is a cleaner answer. Section 40 of FOI applies to any disclosure of personal data which would breach the GDPR. The data that Ball has requested is confirmation / proof of Johnson being admitted to hospital and information confirming the severity of his condition. This data is “data concerning health“, meaning that it is special categories data (SCD). Article 9 of the GDPR prohibits any processing of SCD unless an exemption applies.
In order for Johnson’s SCD to be disclosed, the disclosure of data would have to satisfy the first data protection principle, meaning that the disclosure has to be lawful, fair and transparent. The third element is easy enough – the Trust could simply tell Johnson his data was being disclosed. The middle element is a bit subjective; if you think that Johnson deserves to have his health records disclosed because he’s a lying racist, then you’ll probably think it’s fair. However, if you think that even lying racists deserve to have their health records protected, you’ll probably think that it isn’t. The clincher is the first part – lawful. The disclosure of Johnson’s data must be lawful, so an SCD exemption would have to apply. There are a number of such exemptions, but only two apply in this situation – the data subject (Johnson) gives their explicit consent, or the data has manifestly been put into the public domain by the data subject. You don’t have to take my word for this – the Information Commissioner’s Office’s personal data FOI flowchart says the same.
Ball argues that there is a public interest in the disclosure – it doesn’t matter whether you agree with him because public interest is irrelevant to these exemptions. For ordinary data, legitimate interests can make a disclosure lawful, and over the years, the ICO has developed an approach of a legitimate interest being disclosures of personal data when it is in the public interest. But legitimate interests isn’t an SCD exemption. Of course, you might argue that because Johnson has commented on his illness, that means he has manifestly put his data into the public domain and Ball’s request should be answered. I disagree. All it means is that the Trust can say again what Johnson has already said – and we already know that Ball and his acolytes don’t believe what Johnson has said. The Trust can’t lawfully add any additional details to what is already in the public domain.
Of course, Johnson could give consent. The argument has been made many times: what does he have to hide? By saying this, the doubters themselves have taken consent off the table. If you’re saying that unless a person consents to the disclosure of their medical records, you’ll accuse them of lying (or at best, doubt that they’re telling the truth), you’re applying pressure to the data subject. This undermines the possibility of the consent being freely given, and consent that isn’t freely given isn’t consent. Even if Johnson was pressured into giving consent, the Trust should decide that his consent was invalid, and set it aside.
But what if the Trust have data that demonstrates that he wasn’t as sick as he claimed? Ironically, the exemption would still apply. If they have any data concerning Johnson’s health, even if it showed he wasn’t as ill as he claimed to be, the exemption would still apply because data that shows you’re anything from in the peak of physical fitness to being at death’s door is still ‘data concerning health’. The exemption applies. You might argue that the hospital would be under a moral duty to reveal the truth, but that would be to undermine one of the foundations of medical practice: doctor / patient confidentiality. Even if Johnson was exaggerating his condition for political purposes, to decide not to use the exemption and disclose his medical data would violate doctor / patient confidentiality. It would set a dangerous precedent. If you ask me which I would prefer – letting Johnson get away with spin or watering down the assumption that what your doctors know about you should remain secret, I have no hesitation in siding with patient confidentiality. There’s an old line about how you judge a society by the state of its prisons – I think you judge a person’s true commitment to human rights by how keen they are for scumbags to have them. If you don’t think Johnson has a right to confidentiality over his health, you don’t really believe in confidentiality or privacy.
Suggesting that Johnson wasn’t admitted at all (as Ball does in his FOI) is to say that Johnson wasn’t sick. I’m not sure Ball and his supporters thought through the implications of this originally and following criticism, he was forced to acknowledge the problem:
“Just to be 100% clear, I am not calling any NHS personnel dishonest. It seems that fans of Johnson want to twist my words in order to defend him. Instead, I am calling Johnson a liar. He is a known liar. And I want to know if he lied to public or the NHS about his condition.”
You don’t have to be a fan of Johnson to follow Ball’s words to their logical conclusion (I think Johnson is a lying racist). If you’re suggesting he lied to the NHS, you’re saying that they’re too incompetent to diagnose coronavirus. If you ask for confirmation of his being admitted to hospital, you’re raising the possibility that he wasn’t. If he wasn’t admitted to hospital, you’re accusing those at the hospital who dealt with him of either lying or deliberately covering this up. Ball isn’t shy about smearing people (his complaint about the judges was full of guilt by association, and he happily maligned the majority of FOI officers), so the reputations of everyone involved in Johnson’s care are apparently just collateral damage in his crusade. Much has been made of the claim that medical practitioners at the hospital were asked to sign the Official Secrets Act (I don’t actually know if this happened). If it *did* happen, is Ball seriously suggesting that the OSA is now being used to cover up a conspiracy involving the Government and numerous health professionals and NHS staff, but despite this, they’ll be obliged to admit all in reply to his FOI?
I believe Ball doesn’t just know he’s going to get refused, he probably wants to be. Whether they pick vexatious, or Data Protection, or confidentiality, he can use it for publicity (one of his companies is a PR company, so it’s clearly something he’s interested in). Then he can hype his request for an internal review. Then there’s the appeal to the ICO. And then the Lower Tribunal. And then the Upper Tribunal. And then, if the inevitable crowd-finding allows, the Court of Appeal. Marcus can put on a smart suit for the Metro photographer and go to the Court of Appeal. Whatever the outcome, it can be spun as an achievement. For someone who wants to raise their profile, FOI is a long and protracted process with plentiful opportunities for publicity-inducing setbacks. It’s just another crusade to be spun as fighting for truth and please donate here.
I think Marcus J Ball is a chancer; he’s obviously entitled to make this request, but I’m entitled to say that it’s an attention-seeking waste of time and NHS staff could better spend their time on other things. Any other things. Ball poses as a campaigner for truth but he promotes himself using misdirection and bullshit. He says he “prosecuted Boris Johnson for lying about £5 billion of public spending” and the website for his company ‘Stop Lying in Politics’ lists a number of “achievements” including the above mentioned prosecution, a High Court Judge being “held to account” and £700,000 raised by crowdfunding. The truth is that his prosecution of Johnson failed, the “holding to account” bit was Ball petulantly complaining to a regulator after he lost, and at least some of the £700,000 went on cupcakes, self-defence lessons, and Ball’s salary. ‘Stop Lying in Politics’ is described as not for profit and a ‘social enterprise’, but according to Companies House, it’s a company with one shareholder (Ball). His use of FOI in this case is primarily to promote Marcus J Ball, and can only contaminate the legislation in the eyes of people who are always looking for excuses to water it down.
Whatever the Trust do with his request, they can’t win. Ignoring it will be proof of the conspiracy. Refusing it will be proof of the conspiracy. Answering it would be a breach of confidentiality and data protection. The best they can do is answer it as quickly as possible, give Ball the refusal he’s probably desperate for, and hope that his noise gets lost in all the other nonsense our beleaguered society is drowning in.