On August 27th, the minister for International Trade, Greg Hands MP, tweeted an important update about foreign investment in the UK:
It’s clearly a good thing if Brexit doesn’t result in the economic calamity that some have predicted, but by itself, Mr Hands’ tweet doesn’t advance the debate. To judge whether this is good news, we need to know how big a company this is, how likely they were to leave, and what investment and jobs they might bring to the apocalyptic wasteland that is the UK’s future. In short, we need to know who they are. If the Government wants to use decisions made by private companies for the purposes of propaganda, we need to be able to scrutinise who they’re talking about.
I asked Mr Hands who the company was on Twitter but he ignored me, so I made an FOI request to his Department for the name of the company and all of the information contained in the email. A few weeks later came their reply, a terse response that barely explained the nature of the exemption they were using (Section 43, which prevents disclosures that cause commercial prejudice). Of the public interest, they had this to say:
“in this case it is also important that Government protects commercially sensitive information to allow this particular business to continue to operate in anonymity to limit the exposure of its business strategy; the disclosure of which may be advantageous to competitors operating in the same sector”
I decided to ask for an internal review. The department could maintain their position by disclosing the email but removing the name, and to be honest, I was still working on the assumption that Hands might have made the whole thing up. The Department for International Trade has a difficult relationship with the truth – only this week, the Secretary of State Liam Fox appeared on television to deny sending a tweet despite the fact that the self-same tweet was being displayed on a massive screen behind him, while in a previous job, Hands tweeted about signing off an FOI request about the number of FOI requests his department had received, despite the fact that the department published the numbers.
My review request covered three areas – I had requested all of the information in the email so the metadata for the email could still be disclosed, the public interest had not been assessed properly (the Brexit debate being possibly the most important issue facing the UK in my lifetime), and finally, I said that the Department should at least contact the company to ask their consent.
The Department’s reply was in turn bland – Hands’ meeting with the company was in private, and they had made no public announcement – and meaningless. They dealt with the metadata issue with this sentence, which I still do not understand: “With reference to your request for metadata, this is nullified by the fact that we have not released any information to you for which we would be required to provide those details.”
And so off to the Commissioner’s Office I went. After a few months, the ICO achieved a result. It turned out that the Department had never consulted the company in question, despite the fact that I specifically mentioned this in my internal review request. The ICO told them that they ought to have done this, so they did. Despite their claim in their original reply that the organisation needed anonymity to limit the exposure of their business strategy, the company clearly didn’t feel the same way, so I can tell you that the company is the medical imaging firm PACS Health, and the email came from their Chief Operating Officer (Mr Hands quoted it entirely accurately).
The Department’s approach does not bode well, especially given the turbulent times the UK faces – both outside and within. Secrecy is best, they seem to think. Openness and scrutiny is to be avoided, and has no benefit. Despite having two opportunities to do it (and being prompted by me), those handling my request didn’t think it was worth contacting the company to see what they think. The assumption is that the best course of action is to keep things behind closed doors. Of course, this is a somewhat charitable characterisation of their approach, because it’s entirely possible that the Department didn’t want to contact the company in case they said yes. I mean no disrespect to the fine folk of PACS Health, but they’re not exactly Nissan. How many small companies will have to adopt the same approach to make up for the economic opportunities the UK is about to lose?
The ICO’s attitude wasn’t encouraging either. Admittedly, it was only by complaining to them that I got the information, but the Senior Case Officer wrote to me saying that because of this, they proposed “to informally and proportionately close this matter” without issuing a decision notice. I can see the merit in this sometimes but here, the ICO has an opportunity to send out a message to all public authorities – when claiming commercial prejudice to third parties and private companies, it’s vital to consult them. Doing so in my case would have avoided an internal review and a complaint to the ICO, and they had to do it in the end anyway. By trying to dodge a decision notice, the chance to send this message is lost.
The problem is that unless I withdraw my complaint, the ICO’s main option to refuse to make a decision is to say that my complaint is frivolous or vexatious, and they clearly didn’t think it was. They don’t even have the guts to be transparent about this and say ‘please withdraw your complaint so we can close the case and hit our targets‘ – the Commissioner loftily proposes to close the matter, and I am invited to give the case officer a ring if I want to discuss it.
I asked if they were refusing to issue a decision notice, underlining the point that my case is a good example of the importance of consultation, and I received a somewhat testy reply, telling me that it was clearly not proportionate for the ICO to do so given that I was going to receive the information, and the Department had been told to consult in future. The problem with this argument is that this will only benefit the Department itself, whereas a Decision Notice will be seen by other public authorities and (more importantly) FOI applicants. And separately, there is also some benefit to the Department’s shoddy approach being ventilated. They might be less likely to do it again if it’s a known fact that they did it here.
As he realised that I would object to having the case closed informally, the Case Officer confirmed that a decision notice would nevertheless be issued, although he could not resist a slightly petulant parting shot: “Please note that the process of issuing such a notice can be a lengthy one (i.e. months not weeks)“. I’m not sure why I should be chastened by a reminder of the ICO’s ponderous decision-making processes – indeed, if they were better at making and signing off decisions instead of constantly looking for excuses to close cases, it probably wouldn’t take months anyway.
On both sides, transparency isn’t valued. The Department for International Trade want to keep everything way from scrutiny; the ICO just wants to close cases without going through the admin of writing a decision notice, despite the benefit that a wider dissemination of the case might have. Whatever you think about the future, we need an FOI system that is better hands than this.