What was in Merseyside Fire and Rescue Authority’s 2 page response to the FOI consultation? Next is the response to the FOI consultation from the Merseyside Fire and Rescue Authority. Again I’ll declare an interest as I’m alluded to in their response (in fact my profession is named) and my appeal to the Information Commissioners … Continue reading “What was in Merseyside Fire and Rescue Authority’s 2 page response to the FOI consultation?”
What was in Merseyside Fire and Rescue Authority’s 2 page response to the FOI consultation?
ICO Information Commissioner’s Office logo
Next is the response to the FOI consultation from the Merseyside Fire and Rescue Authority.
Again I’ll declare an interest as I’m alluded to in their response (in fact my profession is named) and my appeal to the Information Commissioners Office last year is explicitly referred to in a report going to councillors next week.
Now by their own figures, responding to all the FOI requests over the whole of last year (2015) used up the equivalent of ~0.375 of a full-time employee.
From what I remember, this means that they allocate more resources to their press office than FOI.
Staff wide Merseyside Fire and Rescue Service had last year an estimated 700 firefighters and I’d estimate 300 staff that aren’t firefighters (of course this is directly employed staff, not staff employed by contractors).
So 0.0375% of its staff budget (approx) is spent on answering FOI requests, the equivalent of around a third of a job of a full-time employee.
Below is the MFRA [Merseyside Fire and Rescue Authority] response to the FOI consultation, which you can compare to Liverpool City Council’s response.
Although it states it’s from the MFRA [Merseyside Fire and Rescue Authority] by the way it’s written “The Service considers” one assumes that as with LCC’s response it’s been drafted by officers. Unlike the attitude taken by Liverpool City Council Merseyside Fire and Rescue Service state they are "supportive of the Freedom of Information (FoI) Act".
Merseyside Fire and Rescue Authority
Freedom of Information Call for Evidence
Merseyside Fire and Rescue Authority (MFRA) would like to make the following comments in relation to questions 3 and 6 of the Independent Commission on Freedom of Information Call for Evidence:
Question 3:What protection should there be for information which involves candid assessment of risk? For how long does such information remain sensitive?
The Service considers that there should be some protection for public authorities in relation to the release of risk registers. High level information about risks and mitigation is appropriate for release and many authorities will publish this as a matter of course. When a request is made for detailed risk registers relating to on-going projects or activities, this is much more difficult for this Service to deal with. It is vital when ensuring that public services are being delivered effectively, that all risk are considered and that staff feel able to “think the unthinkable”. Often these risks are mitigated, but they still remain in risk registers and are open to misinterpretation or being sensationalised. The Service would request that consideration be given to risk registers of this type only being release after the project is completed.
Equally releasing risk mitigation measures prior to the completion of the project may compromise the
measures themselves exposing services to additional risk.
Question 6: Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? What kinds of requests do impose a disproportionate burden?
The Service is supportive of the Freedom of Information (FoI) Act, and values its role in allowing people access to information and giving them the right to find out about matters and decisions that affect them. However, use of the Act has become increasingly popular and the volume of FoI requests has increased over the years. For example, the table below shows the increase in requests to MFRS since 2011:
Year
FoI Requests received
FoI requests believed to be for commercial purposes (as far as can be established with the information available)
2011
72
Not recorded
2012
82
Not recorded
2013
101
Not recorded
2014
138
13
2015
131
17
Dealing with this increase in requests has had an impact on the Service which for Merseyside Fire Authority undoubtedly places increased pressure on relatively small teams. Over the last four years, the Fire and Rescue Authority has had to make savings of £20 million as a result of Government spending cuts. The Authority is required to make a further £6.3 million savings in 2015/16. It is also clear that the Authority will also face further significant cuts over the course of the next Parliament. The Authority has already made significant reductions in its support services and staffing, which means there are fewer staff available to service FoI requests. To save £6.3 million in 2015/16, the Authority has identified another £2.9 million to be cut from support services, further reducing capacity.
Whilst the Service respects the rights of citizens to ask for information that may affect their lives and communities and recognises the role that journalists may play in seeking out inefficiencies or poor practices in the public sector, there is a cost associated with that. The staff collecting, collating, checking, redacting and authorising release of the requested information all have other work to do. As a result, dealing with a FoI request is likely to take staff away from core business.
What the Service believes is particularly difficult to justify is the extent to which commercial organisations use FoI to request information to develop new business leads or seek a commercial advantage. The private sector is effectively using the diminishing resources of the public sector for free, when those resources could be put to better use and there is no return on that investment for the public sector.
What we would ask the Commission to consider is either, levying a charge for such requests, or the ability for an organisation to refuse the request where the applicant is not able to demonstrate that the request is in the public interest.
Even when requests could be considered to be in the public interest, for example in relation to a public consultation on the Service’s plans, the enthusiasm of some members of the public to seek more and more detailed information can place significant pressure on a small authority. Five requests from one person for similar but subtly different complex information in the space of one or two months does result in disproportionate effort. This is despite the fact that individually, the cost of meeting the requests would not be sufficient to justify refusal and the subtle differences between requests rule out treating them as vexatious. It is the cumulative effect that has the impact.
It is also difficult to treat requests as vexatious or indeed classify the work required as excessive without it being perceived by the requestor or indeed the public or press as defensive – so in effect services provide the information for fear of being perceived as less than transparent.
Merseyside Fire & Rescue Service has been recording the time spent by all officers involved in processing all FoI requests since July 2015 (32 completed requests). Given it was already keen to understand and share the impact of such requests with the Authority and Government departments.
As such the total time spent since recording began has totalled 153 hours spread across a range of staff from administrators to the Chief Fire Officer. This equates to an average of 4.8 hours per request. If this was applied to the total number of requests received so far this year it would total 629 hours or 90 working days. With the lost time costs in the thousands.
This is resource that can be ill afforded during these times of austerity, so it is vital that the FoI requests processed are of valid public interest and not to further the profits of a commercial organisation.
The Service has welcomed the opportunity to contribute to this call for evidence and looks forward to the publication of the outcomes.
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What was Liverpool City Council’s incredible 6 page response to the FOI consultation?
ICO Information Commissioner’s Office logo
You can tell a lot about the culture at a public body by its response and reaction to issues such as FOI and filming of public meetings.
I had better declare an interest as a FOI request I made to Liverpool City Council is currently being considered by ICO for a decision notice.
Considering there were over 30,000 responses to the recent consultation on changes to FOI legislation it’s something that attracts a lot of strong feeling.
I’m going to start first with Liverpool City Council’s response to the consultation. Those who know Liverpool City Council may say that their response sums up their attitude. From the tone of their response they don’t like openness and transparency and recommend that the goalposts are moved to prevent having to respond to so many FOI requests (whilst displaying a lack of awareness as to why they receive so many FOI requests in the first place). I think that responses like this are often like a window on an organisation’s soul.
It gives some telling insights on the internal review process of FOI requests at Liverpool City Council with comment such as “that an Internal Review is unlikely to reach a different conclusion”, therefore they propose abolishing internal reviews.
They also want advance notice of decision notices so that they can for want of a better word nobble ICO to change what they don’t like as in LCC’s world decision notices are described as “inappropriate”.
Liverpool City Council
Rt. Hon. Lord Burns
Chair – Commission on Freedom of Information Cabinet Office
9th Floor
102 Petty France London
SW1H 9AJ
Evidence Submission on review of Freedom of Information Legislation
I write further to my letter of 12 October and with regard to the Call for Evidence document issued by the Commission on Freedom of Information on 9 October, enclosing for the attention of the Commission the formal evidence submission of Liverpool City Council.
I would appreciate it if you would acknowledge receipt of this submission and would again take the opportunity to affirm our willingness to continue to engage constructively with the Commission during the course of its review.
I look forward to hearing from you in due course. Yours
sincerely
Ged Fitzgerald
Chief Executive
Response
These matters all have a starting point and undergo a number of iterations before coming forward as formal options. It is essential that this process should not be undermined by requests being made for copies of any emails or communications which formed part of the iterative process of decision making. Ultimately the governance framework ensures any decisions taken are informed and legal. This is a cornerstone of any effective public authority – from Central Government to local authorities – and it is essential that this ability to develop policy, proposals and explore options is maintained otherwise it would impair the quality and ability of public authorities to make informed decisions.
The application of this Exemption requires a person qualified under the Act to give their reasonable opinion, and guidance has been issued by the ICO as to the acceptable format of this. It is clear from the consultation document as well as practical experience that there is a need for such Exemption otherwise the quality of both record-keeping and decision-making by public authorities would be impaired.
Current guidance issued by the ICO (“the evidence required by the ICO would be to assess the quality of the Qualified Persons reasoning process and assist in their determination as to whether a substantive opinion could be considered reasonable…”) would appear to indicate that once the Qualified Person has reached and recorded their reasonable opinion then the ICO may only require the production of such a record but may not compel the disclosure of the information to which the Reasonable Opinion relates.
The key issue is that the Qualified Person’s opinion and record of reasoning which includes the public interest test is recorded. The ICO have produced a template for this purpose. The Information Commissioners Guidance also indicates that the potential prejudice claimed arising from any such disclosures must be at least or exceed a 50% chance of occurring.
How long after should that remain sensitive?
An additional key aspect of the decision-making process of public authorities is the duration of how long information which falls under the Exemption may be withheld from disclosure on the basis of the opinion of the Qualified Person. Information relating to ‘internal deliberations’ should remain capable of being withheld from disclosure for as long as the public authority considers necessary. Whether the information held continued to be subject to non-disclosure would of necessity be a matter for the relevant public authority to determine. It would be inappropriate to set any form of definitive time limit after which information could be deemed to no longer be sensitive if published. The sensitivity of any specific piece of information directly relates to the subject of the information itself as opposed to the date when this was created. There should be no limitation as to the period which a Qualified Person may determine that such information should not be disclosed if the subject of a formal request.
The City Council would also consider that opinions issued by Qualified Persons should not be subject to overturn if reached on a reasonable basis and in a manner consistent with ICO guidance and using their standard template. An alternative and more appropriate mechanism would be for any such opinions to be published on the website of the respective public authority and referenced accordingly within the publication scheme of that public authority. This would satisfy the accessibility and transparency requirements for such declarations and for the purposes of Liverpool City Council it is the Monitoring Officer.
An anomaly which the City Council would bring to the attention of the Commission is that of how the Environmental Information Regulations 2004 (EIR) allow an exception (as opposed to the term ‘exemption as used under FOIA) for internal communications under Regulation 12(4) (d) and yet no parallel exemption is extant under FOIA.
Recommendations from Liverpool City Council –
(i) Qualified Person Opinion & Publication – that the Section 36 Exemption be revised to state that the reasonable opinion of the Qualified Person, once drafted and recorded on the relevant ICO template and published to the website of the public authority and referenced within the Publication Scheme, that this may not then be the subject of further review by the ICO.
Questions 2 – this question relates purely to matters within the legislation which are applicable only to Central Government and as such no response is proposed to be made.
Questions 3 & 4 see response to question 6 below.
Question 5 – What is the appropriate enforcement and appeal system for Freedom of Information Requests? What is the appropriate enforcement and appeal system for Freedom of Information Requests?
Appeals & Internal Review
Current legislation includes provision whereby public authorities must provide an internal review process whereby requestors may ask the Public Authority to review the original decision of the Public Authority on their specific request.
The burden placed on public authorities in preparing responses to initial requests is further exacerbated by the requirement to undertake an Internal Review to assess the validity of its response, when in the first instance such responses are issued following careful consideration of information held in the context of FOIA legislation. In terms of the figures set out in this response below, in 2014 of 2,139 requests a total of 49 requestors sought an Internal Review. Of these, only 5 appeals were the subject of Decision Notices from the ICO with only 1 of which requiring any form of action from the City Council – approximately 0.00047% of all requests processed by the City Council.
It is our position that our approach to an FOI request is robust and thorough from the outset, and that the legislation is applied by trained experienced staff so that an Internal Review is unlikely to reach a different conclusion as evidenced by these statistics.
Essentially public authorities are being asked to repeat an assessment when undertaking an Internal Review and to undertake work twice when conducting reviews, which is inefficient and places an excessive burden on local authorities.
ICO Review
We would draw attention to the process which the ICO then undertakes when seeking information from public authorities in such instances when informing their own decision-making. Frequently the level of information sought by the ICO goes beyond that of verifying the information held or application of the exemption concerned and indeed the subject matter of the original request. This process can be both resource intensive and give additional uncertainty in those circumstances where the ICO seeks information or reasoning beyond that which could reasonably be expected on a specific case. We would seek greater clarity as to the remit of the ICO in such circumstances and of the extent to which they may undertake a review.
Decision Notices
Additionally, in concluding reviews, the ICO will then issue a Notice (Decision or Enforcement Notice) setting out their decision on the request concerned. We would suggest that this process be reviewed and aligned more closely to that used by the Local Government Ombudsman whereby any Notices proposed to be issued should firstly be sent to the public authority concerned for response. This would provide a fair and reasonable opportunity for public authorities and the ICO to address any clear factual inaccuracies, assist in maximising the value of any recommendations contained within the final Notice issued and possibly prevent a costly First Tier Tribunal being convened. The timescale for responses by the Public Authority to any Decision Notice to be 10 working days. The inclusion of unsubstantiated and factually inaccurate statements within ICO Notices, issued without opportunity to the public authority of correction or rebuttal, is inappropriate and requires addressing.
Applications to First Tier Tribunal (Information Rights)
The final opportunity for requestors – if unsatisfied with the outcome of a review undertaken by the ICO – is to submit an Appeal to the First Tier Tribunal. There is no threshold to be met before such applications are made and, in seeking to respond, public authorities are required to expend significant resources in responding. Only on the most fundamental principles of information law should this facility be available or otherwise a cost mechanism for such applications should be introduced in the same manner adopted for applications for Judicial Review.
Recommendations from Liverpool City Council –
(ii) Internal Review – that this mechanism be withdrawn on the basis that this offers no practical benefit for requestors and merely requires the duplication of effort by public authorities.
(iii) ICO drafting of Decision Notices – a requirement be introduced whereby the ICO in drafting a Decision Notice and prior to publication, be required to formally consult the subject public authority and allowing not less than ten working days for issues to be raised by the public authority. Such issues if not accepted by the ICO must be recorded as having been raised by the public authority.
(iv) Applications to First Tier Tribunal (Information Rights) – a threshold or application fee be introduced for applications to the First Tier Tribunal, in a similar manner to that used for applications for Judicial Review.
Question 6 – Burden imposed under the Act and whether justified by the public interest in the public’s right to know
Public authorities are subject to detailed requirements set out in the Local Government Acts to date requiring the publication of information and prescribing how this is to be made available to the public. In addition, the introduction of the Local Government Transparency Code as statutory guidance introduced additional publication requirements on public authorities regarding openness and transparency in local government, which represents additional obligations beyond that already seen. Combined these elements demonstrate the breadth of requirements already inherent on public authorities to make information publicly available.
The Freedom of Information Act (FOIA) (and parallel Environmental Information Regulations 2004) place additional substantial burdens on public authorities. In terms of the resources public authorities are required to commit to dealing with Freedom of Information requests, there are a number of key points to be made.
Burden on Public Authorities
Under Section 16 FOIA and Section 45 Code of Practice, all public authorities are already under an obligation to give advice and assistance to requestors both in terms of framing requests as well as giving advice to bring such requests within the cost ceiling as laid down within the legislation. The current ceiling set out in the legislation is 18 hours, which is high in terms of resource and cost implications.
Firstly, by way of example of the experience of Liverpool City Council, the number of requests received in 2010 (1,217 requests) to the number of requests received in 2014 (2,139) shows an increase of 922 or in percentages of approximately 76%, and an increase in costs of approximately £150K per annum. This increase can be set against a context whereby the City Council has seen the funding it receives from Central Government reduced by 58% during the same period, placing substantial pressures on the viability of the delivery of essential services for its residents.
In real terms and using the figure for the average costs incurred in responding to an FOI request as set out in the Consultation Document issued by the Independent Commission, of £164 per request, the cost of responding to FOI requests based solely on this is £350K per annum to Liverpool City Council alone.
This does not take into account more complex, technical and detailed requests which have to be dealt with and which cost substantially more. The Council’s response rate within 20 working days was 88% in 2014.
The City Council would draw to the Commission’s attention the fact that that the average cost per request it has included within its consultation document is based on calculations undertaken in 2008.
It is highly probable that a similar calculation conducted today would reach a substantially higher ‘cost per request’ figure.
Table 1. Number of request received by Liverpool City Council in 2010 and 2014 and associated costs
2010
2014
Month received
Total
Month received
Total
Jan-10
92
Jan-14
226
Feb-10
62
Feb-14
215
Mar-10
82
Mar-14
177
Apr-10
97
Apr-14
189
May-10
104
May-14
161
Jun-10
109
Jun-14
151
Jul-10
116
Jul-14
143
Aug-10
106
Aug-14
187
Sep-10
126
Sep-14
171
Oct-10
105
Oct-14
180
Nov-10
140
Nov-14
193
Dec-10
78
Dec-14
146
1217
2139
£164 per request
£199,588
£164 per request
£350,796
Vexatious Requests
The City Council welcomes the revised ICO guidance. However there needs to be additional clear guidance within that around the real public interest rather than the private interests of unelected individuals or concerted campaigns which are a drain on public resources. This type of requestor continues to rise in terms of complexity and their impact on available resources.
Based on the experience of Liverpool City Council and using the average cost idicated above, a small number of “frequent requesters” are costing a disproportionate amount of time and resources responding to their requests, of up to £7,000 per individual. This needs to be reflected and addressed within a substantive manner within any Guidance issued by the ICO.
There are also resource implications even associated with dealing with frivolous requests such as “what is the total number of red pens bought by the Council in the past year”. Even though this is classed as vexatious a formal response to that effect is still required to be issued, effectively occupying valuable resources.
Charging
A further burden associated with FOIA is that of the limited charging mechanisms available under the legislation, specifically, under FOIA public authorities may only charge where the time to deal with the request exceeds 18 hours in total.
The current 18 hours threshold (Section 12) is itself a significant demand on Council resources in that a request can take up to anything just below that timescale and no charge can be made. This in effect is up to and two and half days work . This threshold should be reviewed in the light of some of the research undertaken to date i.e. the average time taken to respond to an FOI request by public authorities of 6 hours and 10 minutes with a lower threshold being established.
In terms of the current charging regime associated with Freedom of Information legislation, again the experience of Liverpool City Council in responding to requests is that the art of redacting specific documents can be very time consuming and should be included within the costs permitted when determining whether complying with a request may exceed 18 hours.
In terms of charging the approach set out in the Environmental Impact Regulations 2004 (EIR) assumes information will be available to inspect ‘for free’ but if information is asked to be supplied in a different format a ‘reasonable’ charge may be made for that supply. Specifically, this charge may extend to the time spent by Officers in responding to the EIR request and supplying the information. This differs to the approach adopted in FOIA and should be made consistent.
The City Council would also draw attention to the difficulties caused by the two disclosure regimes operable in the form of the Freedom of Information Act (FOI) and the Environmental Information Regulations 2004 (EIR). There is considerable overlap between requests which may be received under FOI but which, by virtue of the wide definition under EIR should be considered under that regime. The City Council would seek to encourage greater consistency between both regimes, through either a single consolidating Act or through amendments to both existing regimes to provide for a single common charging mechanism and consistency of the requirements for exemptions and exceptions.
Technical Issues
An additional technical issue which we would seek to highlight is that of an Exemption (Section 21 absolute, class based) which is applied in those instances where information is either already in the public domain or accessible by alternative means. The legislation still requires this to be issued with a supporting Section 17 Refusal Notice. The City Council considers that the application of this Exemption should not require the issue of a Refusal Notice as no information is being withheld given it is either already in the public domain or accessible by other means to which the requestor is then directed. The use of a Refusal Notice in such instances can give rise to an Internal Review which of its nature would only generate additional unnecessary burdens for public authorities.
Recommendations from Liverpool City Council –
(v) 18 Hour Rule – that a review of the 18 hour limit beyond which charging or refusal is permitted be undertaken and consideration given to reducing this threshold to either 6 or 7 hours.
(vi) Charging/Reasonable recovery of costs – public authorities be given greater opportunity to levy charges for compliance with requests to ensure the recovery of reasonable costs associated with fulfilling requests which would include the time taken to redact any documents. To align the charging policies for EIR and FOI.
(vii) Vexatious Requests –that Guidance issued by the ICO in relation to dealing with Vexatious requests be further reviewed and strengthened in respect of frequent and persistent requesters
(viii) FOIA and EIR Alignment of Regimes – that a concurrent review be undertaken of the FOIA and EIR to ensure greater alignment of both pieces of legislation or one consolidating Act.
(ix) Refusal Notices – the requirements for issue of Refusal Notices be reviewed to remove requirements to issue these in such instances where a Section 21 (information in public domain or reasonably accessible by other means) Exemption is applicable.
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EXCLUSIVE: First 83 pages of Wirral Council’s Highway Services Contract with BAM Nuttall
In 2013, Wirral Council’s Cabinet on the 7th November decided to award the Highway Services Contract to BAM Nuttall (which started on the 1st April 2014). BAM Nuttall won the contract out of three companies that bid for it and they replaced the previous contractor Colas. The contract runs from 2014 to 2018 and has an estimated value of £30 to £33 million (£6 to £6.6 million a year). You can read the Cabinet report that led to that decision and the Internal Audit report and Gateway 3 report (along with the recommendations/action plan for both of those) on Wirral Council’s website.
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At a meeting on the 7th November 2013 Wirral Council’s Cabinet spends less than two minutes deciding on awarding the £30 to £33 million Highway Services Contract to BAM Nuttall (that agenda item starts at 1m 40s)
This year was the first year I could request a copy of the BAM Nuttall contract during the audit and I’ve scanned in the first 83 pages (of a very long contract). The Highway Services Contract is for:
the provision of standby and call-out, reactive and preventative maintenance on all parts of the highway, public car park and coastal defence infrastructure for which Wirral Council is responsible, including: carriageways; footways; gully cleaning and drainage; street lighting and electrical services; traffic signs and road markings; street and coastal defence furniture; bridges; subways and retaining walls and sea wall and accesses; together with snow and ice clearance; including precautionary salting except for
maintenance of traffic signals equipment and their electrical supplies, all maintenance and improvement schemes estimated in value at over £250,000 and the provision of gritting vehicles and road salt.
The documents below cover the parent company guarantee with Koninklijke Bam Groep N.V. (no that’s not a spelling mistake but the name of a company based in the Netherlands), then the start of volume 1 (part 1) of the contract documents which covers form of agreement, bond (unfortunately the details haven’t been filled in on this), form of tender, declaration, what information is considered commercially sensitive for freedom of information requests, information assurance, insurance certificate (with AXA Corporate Solutions), parent company letter guarantee, contract data part 1 (data provided by Wirral Council, partnering information, more contract data on the optional parts of the contract (pages 62-63 add optional clauses about FOI requests) which includes matters such as TUPE, subcontracting, intellectual property, data protection, human rights, the Local Government Ombudsman, price adjustment for inflation and other optional clauses/changes to the contract).
Below are thumbnail images of the contract pages. The text on the thumbnails is just about readable on my laptop screen. If there are any pages that you find it’s not readable please leave a comment with the page number and I’ll link the thumbnail to a higher resolution image for that page.
The optional contract clauses added about FOI requests seem to mean that if a FOI request is made for information about or relating to the contract, that Wirral Council will contact BAM Nuttall and ask it to make representations if it wants information to be withheld. Page 24 of the contract classes the following parts of the contract as "commercially sensitive" which are Contract Data Part 2, The Price List and the Fee Percentage Schedules.
EXCLUSIVE: 8 page briefing note leads to Wirral’s councillors agreeing to further FOI discussions behind closed doors
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Councillors discuss Wirral Council’s response to Freedom of Information Act requests at a meeting of the Transformation and Resources Policy and Performance Committee on the 3rd December 2015
Cllr Phil Gilchrist addresses the Transformation and Resources Committee about freedom of information requests 3rd December 2015
Yesterday saw councillors discuss freedom of information requests and how Wirral Council handles them in response to this Lib Dem motion. As a number of the ICO decision notices are in response to my requests, I will declare an interest before writing any further.
Interestingly, the day before the Transformation and Resources Policy and Performance Committee met, Surjit Tour had written an eight page "briefing note" which was referred to by councillors during the debate.
The Conservative amendment to the motion was withdrawn and the Labour amendment to have a task and finish group of councillors meeting to discuss FOI behind closed doors (again) on the subject (in the spirit of openness and transparency of course!) was agreed.
You can watch the video of councillors discussing this item above.
However what will probably make more interesting reading is the briefing note itself which I reproduce below (it’s not published with the papers for the committee or indeed anywhere else). It’s a bit hard to summarise eight pages, but it’s basically eight pages of justification by officers that they’re doing their best they can on FOI (with the promise of improvements) and that it isn’t as bad as the bleak picture as painted by Lib Dem politicians. If the thumbnails are hard to read, they should each link to a more high resolution version of each page.
Surjit Tour briefing note on FOI to Transformation and Resources Policy and Performance Committee page 1 of 8 thumbnail
What do Snowden, Schrems and the end of Safe Harbour have in common? A tale of international espionage, blogging and data protection
The Cookie Monster from American TV show Sesame Street
The reason for the lack of blog posts on this blog since 9th November 2015 is a bit of a saga involving international espionage, the whistleblower Snowden and a legal case.
Five years ago when this blog was started in October 2010, it was set up as a free blog and hosted by an American company in America that runs WordPress called Automattic Inc. At this point in time in 2010 that was the best place to have it.
UK libel law at the time meant that is was better to have it hosted in a country with better protections for freedom of speech, however since 2010 libel laws have changed here.
Blogs process some personal information (for example if somebody leaves their name and email address to write a comment or for other reasons).
In order to protect the privacy of EU citizens, this data was covered by an international agreement between the EU and the American companies called the Safe Harbour Decision. Back in 2000 the European Commission had agreed that meant that the United State’s principles complied with European Union Law on this matter and the relevant EU directive.
However, then Snowden blew the whistle and the public and media became aware of the activities of the US intelligence community. An Austrian citizen called Maximillian Schrems was concerned about the activities of Facebook and as Facebook’s European headquarters is across the Irish Sea in Ireland complained to the Irish equivalent of what is in the UK called the Information Commissioner’s Office.
In his complaint he stated "in the light of the revelations made in 2013 by Edward Snowden concerning the activities of the United States intelligence services (in particular the National Security Agency (‘the NSA’)), the law and practice of the United States do not offer sufficient protection against surveillance by the public authorities".
The Irish Data Protection Commissioner responded to Schrems by (and I’m summarising here) rejecting his complaint in part because of the Safe Harbour agreement. Schrems asked the Irish court to review whether the Irish Data Protection Commissioner’s response to his complaint had been legal. However as the Safe Harbour decision had been made at the European level, it was referred to the European Court of Justice to decide.
The European Court of Justice agreed with Schrems and found the Safe Harbour agreement was invalid. The various European data protection authorities (such as the Information Commissioner’s Office here in the UK) have given organisations affected a grace period before the possibility of enforcement action.
In the UK this grace period runs to the end of January 2016 and so organisations affected can deal with the implications.
Although some of what Schrems complained about (for example no legal right for EU citizens in America to sue the Americans for unlawful disclosure of personal information) is being addressed by a law going through the American political system called the Judicial Redress Act 2015 and there is hope in some quarters that there may be a successor to the Safe Harbour agreement, what will happen next is rather unclear.
As data protection lead, my considered opinion was this. Since the Schrems case rendered the Safe Harbour agreement invalid, the only option I was looking at that didn’t involve having a crystal ball involved switching where this blog is hosted from America to within the European Union.
Last year this blog made more money in advertising than its running costs (unusual for a blog I know) and just under a month ago I had paid £68 to Automatic Inc for an extra 10 gigabytes of space so I could write some "big data" journalism stories as previously there was a 3 gigabyte cap.
As a result of the Schrems decision that £68 has been refunded, but the files used over the 3 gigabyte cap had to be transferred to the new host for the blog.
The comments and posts also had to be transferred over. As there were five years worth of these, for some reason the transfer process didn’t work doing it all as one go, so I had to do it in five files of about a year at a time.
The internal links to the old blog before I registered the johnbrace.com domain name in 2012 I also updated manually.
Then I had to make sure the blog at its new host was compliant with another piece of EU legislation (hence the picture above of the Cookie Monster from the American TV show Sesame Street) that got transposed into UK law that referred to cookies.
So, that’s why there haven’t been any blog posts for a while, because my time has been occupied dealing with compliance issues.
Next on my list of things to do as part of this project will be setting up email addresses for this blog (that is email addresses in the format @johnbrace.com ).
Ultimately it’s considered best practice for a blog to be hosted (that is where it is physically based in the world) as near as possible to most of its users. For example another website I run that caters to a North American audience is hosted in Canada (thankfully unaffected by the Safe Harbour agreement).
As you’d expect from a hyperlocal blog, 91% of the visitors to this blog are from the United Kingdom. It therefore makes sense for it to be hosted in the UK as it will now in theory be quicker for those visiting it from the UK.
So hopefully this gives an explanation as to why I haven’t been writing as much. There is still ~3Gb of data to transfer, email addresses to set up etc. I may take a break in updating this blog over Christmas 2015 and do that in the holidays.
So what’s the Wirral Council angle to all this? It boils down to my attitude towards the "rule of law". As an investigative journalist I often write about the public sector’s non-compliance with legislation.
However there’s an unwritten rule I’ve had in force since 2012 (that although if I did I could use internal resources to do so which seem to match those of say a local council) that I don’t go down the Schrems route and start challenging the decisions of public sector bodies through the courts.
Ultimately I’m one for political solutions rather than legal ones. Writing about a public sector body not complying with the law is one thing, but (don’t try to laugh too hard at this point) I’ve developed a policy of generally not interfering in the internal affairs of the public sector here.
The public sector as a result don’t interfere in my life much* (*to give one example telling Biffa to stop collecting the rubbish each week).
My job is to report on matters. I haven’t been a member of a political party for three years and I believe to do so would damage my independence considering my day job.
My role now, is not political activism or to overthrow governments (yes I did a fair bit of that in my more radical youth peacefully I might point out through the ballot box and political means), but to just do my job.
Ten years ago I went for a long walk from South Fulton, Georgia, across the state line to South Fulton, Tennessee and had a long think about what I wanted to do with my life. Many of the people I’d grown up with on the Wirral (the very people who if they’d stayed could have made it a much better place) had left the Wirral and for various reasons (for example career) lived elsewhere.
I knew at the time Merseyside had problems* (*yes an understatement but this was before the 2008 financial crash) and I made a choice then that altered the course of my life over the last ten years. I decided that morally from an ethical perspective that I should return and do my best to make the world a slightly better place, rather than do what many of the people I’d grown up with do and leave.
Just like Schrems was influenced in his lawsuit by time spent working in America, the time I spent in America probably influenced me in the battles I’ve had over the past few years over the issue of filming public meetings.
Freedom of speech and the diversity of media that exists in the UK are a precious matter. This blog for example allows for political speech and discourse to happen. Without such a pressure valve for society, so people can express their opinion, very bad things would happen.
Part of my formal university education (something I don’t often refer to on this blog and my days in student union politics) was about terrorism, counter-terrorism, political struggles etc and I’m sure no-one following the news will be unaware of the recent sad events that happened in France.
International politics (although I could probably write another few thousand words on the subject) is probably a little beyond the scope of this blog post. Ultimately some local politicians here on Merseyside can at times be parochial in their outlook.
I however have to take a global perspective on matters. Blogging is not just about the person writing the blog, but the community that reads the blog. Although I’m under no obligation to be open and transparent about such matters I feel considering the rumours that start going round when I stop blogging for a bit it was better to set the record straight.
I will end by making a point that’ll probably only make sense to data protection professionals or those with an interest in this area. There are protections written in to the data protection legislation to cover journalism. Ultimately the 8th data protection principle which states "Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data" doesn’t apply to journalism.
However the seventh data protection principle does apply which states "Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data".
There’s nothing I can do really to prevent the intelligence community taking an interest in this blog. In turn the intelligence community would argue and have argued that what they do is lawful. Even if this blog is hosted in the UK, GCHQ (Government Communications Headquarters) could quite happily spy on it without me knowing. Under the Five Eyes intelligence sharing agreement they could share this signals intelligence with other countries such as the NSA in America. So just be aware of what you put online as privacy died a death a long time ago. It is a trivial matter for the intelligence community to access the deep web (for example email accounts and parts of websites that aren’t available to the public).
There are also plenty of companies that for public relations purposes monitor blogs and social media. Despite the current concerns over the relatively minor costs to the public sector in responding to FOI (Freedom of Information) requests, untold £millions of your money is spent by the UK public sector on public relations. Plenty of parts of the public sector (even locally here on Merseyside) have commercial subscriptions to such services to find out what is being written about them. For every one John Brace there are an estimated four to five people working in public relations.
I exist in a world of embarrassing information that powerful people and organisations would probably prefer me not to publish. So apologies for the lack of responses to comments and emails over the last fortnight.
I will finish my last sentence with a bit of free public relations advice (unlike the public sector who pays £650+VAT for this sort of advice), never cheese off the press.
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