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Hello FOI Friends + Happy Easter!
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This was supposed to go out on Thursday and I messed up the scheduling, so hopefully it won’t get completely lost in people’s inboxes.
Despite a lower than normal number of decisions (161 is relatively low) and an obvious attempt to clear out a lot of S12 cost / time based decisions (a lot of which were routine), the Commissioner made some interesting decisions in February; it was a bit hard to pick which ones I wanted to include..
If you follow my ‘FOI Daily accounts’, you’ll see some of the also-rans over the next few weeks, and one case is so bad I’m doing a quick webinar about it on April 12th. The link is at the end.
So let’s get on with it.
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1) Unvexed
The Department for Business and Trade have received multiple detailed requests from an applicant concerned with export licenses; in this case, the request applies to a list of specific companies and the aim is to find out what licenses have been granted for the export of military equipment to Israel as well as supporting information. Some of this data is published, but the applicant wants to dig deeper.
DBT refused the request as vexatious on the basis of the burden that searching for and providing the information would represent. DBT’s arguments aren’t stupid – they acknowledge that the applicant has a serious purpose, and put forward credible information about the extent to which dealing with the request might take specialist staff away from their work. They’re also able to provide a crucial part of this kind of refusal – they can plausibly cite the exemptions that might have to be applied (confidentiality, commercial interest and published in the future).
The applicant has made multiple previous requests, and it’s clear that they will continue to do so. The Commissioner acknowledges that the burden of dealing with the requests is considerable.
A few years ago, I think the Commissioner might have upheld this refusal. But they don’t. The decision identifies a wide public interest in scrutinising military exports in the current climate and while it acknowledges the impact of the request on the department’s core activities, FOI is an “important function”. More specifically, the needle moves in the applicant’s favour because there’s little evidence of DBT providing advice and assistance to achieve smaller, less burdensome requests.
IC-254410-G7S4, 23/2/24: https://ico.org.uk/media/action-weve-taken/decision-notices/2024/4028698/ic-254410-g7s4.pdf
The applicant in the DBT case accused the department of adopting blocking tactics – I think their case was plausible but on balance the Commissioner was right to reject it. In another February case, the Department for Work and Pensions’ approach was wholly unjustified. The applicant made a clear, coherent request for contacts between DWP ministers and special advisors and staff at the Daily Telegraph during a specific period.
DWP rejected this out of hand as vexatious: “It is not immediately clear to us that you are looking for particular recorded information between a DWP Minister or Special Adviser and the Daily Telegraph.” The refusal is plainly based on a theory that the applicant has to know what they’re asking for specifically and anything that could be characterised as a fishing exercise is vexatious.
It turns out that the applicant does have a specific target in mind (the suspicion that the Telegraph is running an anti-benefits campaign on DWP’s behalf), but I don’t that matters. As the ICO acknowledges, there’s an obvious legitimate public interest in understanding the relationship between government ministers and the media.
I think this one is garbage and I’m pleased the Commissioner dismissed it.
IC-257131-L4V8, 27/2/24: https://ico.org.uk/media/action-weve-taken/decision-notices/2024/4028746/ic-257131-l4v8.pdf
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2) All change
In 2022, the UK hosted a conference about human rights and freedom of religion. A statement signed by 21 countries was published after it on the Gov.UK website, but that was withdrawn and a revised statement appeared, signed by 8 countries. The request was designed to identify what changes had been made and whether any related to the involvement of Fiona Bruce MP or her staff.
The Foreign, Commonwealth and Development Office refused the request using S35 (formulation of government policy). The Commissioner accepted this without much question, so the decision moves on to the public interest, which is where the plot thickens.
The applicant says that the changes had the effect of removing what they say were unambiguous pro-abortion statements. They claim that Bruce, the Prime Minister’s Special Envoy for Freedom of Religion or Belief, is known for her anti-abortion beliefs. The public interest arguments in favour of disclosure are about revealing what her involvement was.
The crucial issue for me to highlight is this: the FCDO’s arguments are generic. Even though the Commissioner says that safe space arguments have to be given “significant weight”, they can be defeated in two ways here. First, by the time the request was made, so were any decisions. No safe space is needed any more and as you’re probably aware ‘chilling effect’ arguments (i.e. the knock-on effect of disclosure on future decisions) have to be made very persuasively.
On top of that, there are specific public interest arguments in favour of disclosure, including evidence of international controversy over the decision to change the statement and calls to have it revised again. I’ve made this point before and I’ll make it again: when weighing the balance of the public interest, specificity is heavier.
IC-257382-Y0Q9, 28/2/24: https://ico.org.uk/media/action-weve-taken/decision-notices/2024/4028757/ic-257382-y0q9.pdf
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3) Hold tight
A common area of dispute between applicant and authority is over what should be held. For example, if one police force is asked by another to carry out an investigation into a fatal accident on behalf of the coroner, surely that would generate a lot of correspondence? It wouldn’t all be done over the phone?
Our old friend the Balance of Probabilities comes into play here. The Commissioner can’t go into the organisation and do the search themselves. The public authority has to explain what they did and what they found and then the Commissioner has to decide on the balance of probabilities, is that likely to be true? If it’s more likely than not, they accept the organisation’s story.
In this case, a horrendous incident led to the death of a Cumbria police officer in a car accident and due to the conflict of interest, Cumbria Police can’t investigate the incident on the coroner’s behalf. The convention is that a neighbouring force does it instead, so Lancashire Police step in.
The applicant wants to see their report, but that’s exempt for uncontroversial reasons – it’s held on behalf of a court (the coroner) and S32 therefore applies. The second half of the request covers any information about Lancashire’s remit to investigate. There’s some unhelpful confusion caused by the force’s overly restrictive interpretation of the request, meaning that an email that should have been disclosed was ruled out.
But ultimately, the applicant thinks there must be more data, so the Commissioner has to weigh up Lancashire’s story. There was a phone conversation initiating the investigation (which the force says there is no record of) and then they followed clearly established procedures to investigate the incident. There was no discussion of the remit because Lancashire simply did what police forces do when asked to investigate an incident of this kind.
I have serious concerns about the Commissioner’s failure to record how decisions get made, and I can make a big song and dance about it. But in the end, if decisions are made verbally and go unrecorded, FOI can do nothing. In this case, I’m not even sure the force deserves any criticism. There’s an established way of dealing with situations like this; the absence of information suggests that they just did what they were expected to.
In any case, the Commissioner has no alternative evidence to sway them and they accept Lancashire’s explanation, which is what they’re supposed to do.
IC-261956-F3W8, 14/2/24: https://ico.org.uk/media/action-weve-taken/decision-notices/2024/4028506/ic-261956-f3w8.pdf
In similar circumstances, the Commissioner believes Cherwell District Council when they say that they hold no recorded information about a decision to remove an automatically generated message sent in reply to messages made via What Do They Know.
IC-262652-T6Q1, 28/2/24: https://ico.org.uk/media/action-weve-taken/decision-notices/2024/4028762/ic-262652-t6q1.pdf
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4) Get off the fence
One of the hallmarks of an organisation that doesn’t take FOI seriously enough is an inability to recognise an obvious EIR request as such, or refusing to commit once the question is raised. Of course, some cases are borderline and there’s genuine confusion, but often it’s either laziness or tactics. The EIR exemptions are more broadly drawn and you don’t have your nice government policy exemption to fall back on.
The Cabinet Office received a request about the Lower Thames Crossing project i.e. a proposal to build a new bridge across the Thames. While it pays to keep an open mind, I don’t think it takes a genius to figure out whether this one might be an EIR request or not. Once you start thinking about building a bridge some place, the data about your thoughts is highly likely to be part of measure likely to affect the environment.
The Commissioner isn’t impressed with the Cabinet Office approach which starts with FOI and then continues to hedge its bets. “The Cabinet Office disputed that the entirety of the reports fell under the EIR and considered that some of the information fell to be considered under FOIA.”
You’re not expected to fillet every sentence and assign it to one piece of legislation or another. Sometimes, information about a topic is mixed, but often, there’s a predominant theme and that’s clearly the case here. The Commissioner says it’s all EIR. I mention this case to highlight that, and also because the decision itself contains a decent summary of how you arrive at the decision, including the background precedents.
I suspect deep analysis wasn’t really required, but even if it is, the Commissioner lays out the process clearly here.
IC-235971-D4C0, 20/2/24: https://ico.org.uk/media/action-weve-taken/decision-notices/2024/4028681/ic-235971-d4c0.pdf
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5) Bad policy
I didn’t realise I’d picked an all central government line-up this month, but here we are. The Department for Levelling Up, Housing and Communities received a request for the business case concerning the end of the Help to Buy scheme, run by Homes England. They refused under S35, claiming that this was still a live policy issue.
The Commissioner disagrees. The policy has been set and the scheme coming to an end is essentially an HR issue. Decisions still had to be made about staff working on the scheme, but that wasn’t an issue of policy. These decisions didn’t have to be made by ministers and didn’t affect the outside world. It’s always important to look carefully at what the exemption actually covers – this isn’t a general purpose ‘live decision’ exemption. Though it comes with the complication of getting the qualified person to sign it off, S36 might have been a better choice.
DLUHC’s alternative roll of the dice is even less convincing, as they try to throw S43, the commercial prejudice exemption, into the mix. Disclosure will prejudice Homes England’s ability to effectively manage the redeployment of staff to deliver its business objectives. That sounds plausible to the Commissioner, especially in terms of negotiations with trade unions. The problem is that it has nothing to do with any commercial interest.
DLUHC doesn’t specify a commercial interest, as far as the Commissioner is aware Homes England doesn’t operate commercially and in a killer blow to this dismal attempt, DLUHC staff haven’t asked Homes England what they think. This is an essential part of any attempt to protect the commercial interests of a third party. The refusal is doomed to fail.
IC-250648-P9V2, 7/2/24: https://ico.org.uk/media/action-weve-taken/decision-notices/2024/4028407/ic-250648-p9v2.pdf
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