Number crunching

by | Nov 7, 2014 | FOI | 6 comments

At least according to Wikipedia, St Basil of Caeseria is the patron saint of hospital administrators, while lighthouse keepers enjoy the patronage of both St Dunstan and St Venerius the Hermit. In the light of such specificity, it seems unjust that Freedom of Information Officers have no more appropriate option that St Thomas More, who covers the broad spectrum of politicians, statesmen, lawyers, civil servants, and court clerks. My vote would go to St Jude, who sponsors lost or hopeless causes, although a case could possibly be made for St Alban, who as well as converts and refugees, is the patron saint of torture victims.

St Albans Council hit the local headlines in September, when the St Albans and Harpenden Review reported the huge burden on the council represented by FOI requests. Councils bleating about the cost of FOI is not a new story, and I have complained about it repeatedly. But fans of the genre will have enjoyed some novel twists among the usual invented cost totals and reassurances that the Council takes FOI seriously. For one thing, the Council Leader Julian Daly aimed his fire at commercial companies rather than the public: “what makes me particularly annoyed are requests from businesses using FOI to get detailed information for commercial gain, instead of investing in market research“. Paul Bradshaw has already beaten me to the observation that businesses, like the public, are taxpayers anyway, but more importantly, it’s hard to imagine how a company would get market research data in any other way than FOI, unless the information was already published.

A second element was even more intriguing. In breaking down the percentages for April to June, St Albans claimed that as well as the whopping 57% of requests from commercial applicants, 13% of requests were from the Metropolitan Police. The technical term for this is bollocks, but I didn’t want to say so without checking. I made an FOI request to St Albans Council after the story resurfaced in the Herts Advertiser in October, and the results were interesting.

One question I asked was: “Did any of these police requests mention ‘Freedom of Information’ or ‘FOI’?“. Although they devoted several paragraphs to explaining their FOI process, St Albans did not actually answer, so I am going to assume that none of them did. It is true that an FOI applicant does not need to specify that they are making an FOI request, and St Albans drew my attention to a section on the Information Commissioner’s website which says that any request for information that is plainly not an EIR or a subject access request should be treated as an FOI: “Any other non-routine request for information you hold should be dealt with under the Freedom of Information Act“. It is always unwise to rely on the ICO’s website, which is generally written as if the reader is a nine-year-old; complexity and subtlety are studiously avoided. Nevertheless, even on the face of it, the ICO’s text does not support St Albans’ interpretation. A request from the police as part of an investigation is plainly ‘routine’ – St Albans received more of such requests than they did FOI requests from the public, a total of 35 in one three month period.

More importantly, when I asked how many of the Met Police requests were made under Section 29 of the Data Protection Act (i.e. made explicitly under completely separate legislation), they admitted that all of them were, and any data was disclosed under that section. It’s not clear (and I probably should have asked) whether St Albans formally refused these requests under FOI before disclosing under the DPA, but I bet that they didn’t. The police were using the Data Protection Act for what the ICO’s Data Sharing Code of Practice calls a ‘disclosure’, and what is more commonly (though less accurately) known as a data sharing request. They were asking not that the data be disclosed under FOI, but that it be disclosed one data controller to another, for the purposes of conducting a criminal investigation. The idea that anyone could think that this was an FOI request is nonsense.

It’s entirely logical for the same people who process FOI and EIR request to also handle subject access and DPA disclosures. Indeed, given that there is currently no formal obligation in England, Wales and Northern Ireland to collate and report FOI statistics to anyone, there is no reason why St Albans’ information requests team shouldn’t lump all of their workload into one system to keep track of it all. It would be nobody else’s business if they did. It’s possible that when the issue came up, the police requests were included by mistake.

The problem comes in the way that St Albans have tried to use the volume and cost of their requests as part of the FOI burden narrative that local government is still enthusiastically engaged in. A statistically significant portion of the requests they complained about were nothing to do with FOI at all. If St Albans Council can afford to stage free PR events for Eastenders Actors, then local taxpayers of any type making FOIs should pass without comment. However, if we are to have a debate about the FOI burden, it has to be conducted honestly. The Herts Advertiser version of the story remarked that St Albans received markedly more than surrounding authorities, and I can only conclude that this is because Dacorum and Watford don’t count electricity bills and stuff written on toilet walls in their FOI totals.

I don’t blame the FOI officers for this; I assume that most of the anti-FOI propaganda is generated by PR teams, senior officers and politicians. But given that it is certain that the St Albans figures have been exaggerated by the inclusion of police requests, any assertion they make about the total cost, the average cost to households, even the total number of requests that they have received, is meaningless. If public authorities want to talk about FOI, they have to start by getting their facts straight.