It’s often said that the freedom of information system should be ‘applicant-blind’. The identity of the person asking is irrelevant and should make no difference to how the FOI request is treated.
There are actually some exceptions to this (for example, if someone is just repeating the same request they submitted the day before), but as a legal principle it’s broadly correct.
In practice however public authorities often seem very keen to find out details about the people sending them FOIs.
I’ve just obtained from the Department for Business, Energy & Industrial Strategy (BEIS) some internal emails referring to an FOI request of mine in 2019. That was when I was still at the BBC, and it concerned UK reaction to past EU plans to reform the accountancy industry.
An official in BEIS’s Business Framework Directorate dealing with the request emailed colleagues asking them “to provide any information about this Martin Rosenbaum, previous contact with BEIS etc”.
The FOI team replied: “He is a BBC journalist with interest in politics & current affairs and is a specialist in freedom of information & data. He has been sending in requests from 2010, so he is quite a regular requestor.”
The information about me seems to have been intended for inclusion in the submission to the Deputy Director who had to sign off the FOI response. The eventual submission stated: “Martin Rosenbaum seems to be one of the main representatives of the BBC responsible for obtaining information from BEIS via FOI requests. There is no particular pattern in the subject matter of his requests.” And then it listed the topics of several of my previous requests.
Since BEIS had failed to respond to my request on time, I had sent a chasing email. An FOI unit official then emailed the Business Frameworks team to say:
“I know that we are in the process of opening up these files etc, but I just want to make you aware that the requestor has now written in to complain as he is still waiting for his response and we haven’t even completed a first draft let alone taken this up to be cleared by press office and SPAD … I would like to remind you that Martin Rosenbaum is a journalist – also a frequent FOI requestor, and is aware of the process and complaints procedure, so we really need to try and pull our socks up with this.”
The moral of this story for FOI requesters? If in practice FOI doesn’t operate in an applicant-blind manner, it’s good to have a reputation for knowing when and how to complain and being willing to do so.
The information law regulator has reached an agreement with itself to hold a regular series of meetings with itself, so that its staff can check up on how its staff are doing on answering freedom of information requests.
One of the tasks of the Information Commissioner’s Office is to try to improve the performance of public authorities with a particularly bad track record on dealing with FOI applications, such as … the Information Commissioner’s Office.
Last month the ICO revealed it would writing to the, um, ICO, to find out about the ICO’s plans to do better in future and so avoid being further criticised by, yes, the ICO.
This has now happened, and in an unusually speedy response to my FOI request, the ICO has sent me the correspondence.
It reveals that in the first nine months of the current financial year, the ICO only responded to 71% of FOI requests on time. At Christmas there were three requests that were over a year overdue.
The group manager for complaints wrote to the head of corporate planning to say: “We cannot ignore the fact that we have had an increasing number of complaints reported to us about the ICO in relation to late compliance with information requests. Adverse media coverage and blogs have also reported on these issues … We are therefore requesting a formal update on your recovery plans”.
The reply says “We recognise our performance is not where it should be”.
The recovery plan has now been published on the ICO website. It says they are recruiting and reallocating staff, with the aim of ensuring that 90% of FOI requests are responded to on time by the end of June, while requests over a year overdue should be cleared by the end of February.
This is all to do with the FOI requests which the ICO itself receives, not the complaints it assesses about the processing of FOI requests sent to other public bodies. That side of the ICO’s operations is also affected by serious delays.
The disclosed correspondence shows that the complaints team will meet monthly with the information access team to review progress. All those who comment agree that the ICO should treat itself in the same way it would treat any other public authority with an inadequate record of compliance with FOI law.
It does seem somewhat absurd, but it is nevertheless better than alternative arrangements – such as the ICO not being subject to FOI requests at all, or not falling under the oversight of an information rights regulator, or being let off the hook by its own staff rather than publicly and embarrassingly rebuked.
On the other hand, this process wouldn’t be necessary if the ICO actually responded promptly and efficiently to information requests.
While this request was responded to quickly, another of my FOI requests has not had a reply from the ICO nearly three months after it was submitted.
For a couple of years in an earlier phase of my life I gambled on politics. And I made money by doing so.
It all began with a Tory leadership election, and what turned out to be the sadly erroneous views of ITN’s then political editor. That was 1995.
I stopped after I joined the BBC in 1998, since it could have created a conflict of interest – which also prevented me taking up a consultancy role I was offered by the betting company Sporting Index to advise on political bets.
So it wasn’t a long phase, but the benefits to me were not only financial – I learnt life lessons from gambling.
Betting involves taking specific decisions which have plainly identifiable consequences, sometimes very soon. You get a reality check on your opinions and mode of thinking. This means it should provide good opportunities for clear ‘feedback’, both positive and negative, for learning and improving.
I largely focused on spread betting, where decisions could easily have significant financial consequences, for good or ill. I wasn’t betting for ‘fun’, or to buy extra interest or excitement in events, or to hedge or reinforce my emotional reaction to what happened politically, all of which could be rational reasons for risking (or squandering) a few pounds. My aim was purely to win money.
(An explainer on spread betting, for those who want it: Suppose for example a betting company offers a ‘spread’ of 340-350 for the number of seats the Tories will win at the next election. If you think they’ll get more, you can ‘buy’ at 350 at a stipulated stake per seat, say £20. If the Tories then get eg 375 seats you’d win (375-350)x20 = £500; but if they got eg 335 seats you’d lose (350-335)x20 = £300. On the other hand, if you were predicting they’d get 335, you could ‘sell’ at 340 and if right in due course make (340-335)x20 = £100; but if they got 375 you’d lose (375-340)x20 = £700.)
Lesson 1 – It’s in the detail
I became intrigued in betting when John Major, then a beleaguered prime minister, told his many internal party critics to “put up or shut up”, and John Redwood went for the “put up” option. Which led to the 1995 Tory leadership contest.
I was watching the ITN lunchtime news on the day of the ballot, and its political editor Michael Brunson said Redwood would get about 45 votes. I thought “If it’s good enough for Michael Brunson, it’s good enough for me”, and phoned a spread betting company. Later that day it was announced Redwood got 89 votes and I lost £150.
Yet what I gained was the insight that money could be made – but it needed my own careful analysis, not a reliance on the views of others.
And this meant: no general impressions, no broad judgments – that’s more or less plucking figures out of thin air. Instead break the factors of a situation (eg the Conservative parliamentary party) down into component parts and look for whatever detailed evidence exists.
In due course in the 1997 Tory leadership election I made over 20 times what I’d lost on the 1995 one.
Lesson 2– Opinions and decisions aren’t the same
I learnt how big the difference is between holding an opinion and actually being willing to stake your money on it. When I was deciding whether to place a bet, and I forced myself to think through properly whether the evidence really supported a view I held, I then realised that maybe it didn’t. And this sometimes applied even when I’d previously been enthusiastically advocating that viewpoint in conversation with others.
There was no need to bet on an outcome just because I’d confidently told everybody that it was what I expected to happen. I learnt a healthy disrespect for my own judgment. It’s fine to enjoy a good argument if you want, but when it comes to decision-making with real consequences it might be better to be non-committal.
Lesson 3– The status quo is always changing
There’s a new status quo with each decision you take.
Sometimes it was possible to guarantee smallish wins by what is called arbitrage. When on some event two betting companies had different spreads which did not overlap, and you spotted it before one of them closed the gap, you could guarantee profit by selling with one and buying with another.
For example: If for Labour seats at the next election company A quoted 320-330 and company B quoted 333-343, you could buy with A at 330 and sell with B at 333 – and if you did that at say £10 per seat, you’d make £30 for sure, irrespective of the actual outcome.
Sometimes arbitrage opportunities were implied rather than being so explicit, and the bookies might not spot and stop these so readily. I can remember in the 1997 general election there were spreads available on the number of Labour MPs and on the number of women MPs which were way out of line with each other, given how many Labour candidates in marginals were women and therefore how tightly the two spreads should have moved together.
This was before online gambling, so you had to make phone calls to place the bets, which took a little time. I reckoned the safest course of action for arbitrage was first to place the bet which represented value in my way of thinking; then place the counterpart bet assuming it was still available.
But once I had placed the first bet I was in a new situation, and in fact one I was quite happy with – I was sitting on a bet that I felt at the time was good value. Why on earth would I want to now go and place another bet that to my mind was probably chucking money away? Well, I didn’t, so I now realised. I went through this process a couple of times and concluded this kind of arbitrage didn’t work for me (it would of course be different in another field where I was ignorant and had no idea which bet actually represented good value).
In other words I’d planned a multi-step strategy based on the situation I was in initially. But once I’d taken the first step, I was in a new situation where the rest of that strategy no longer made sense.
Lesson 4 – Going against the herd, when the herd is wrong
Success can come from spotting when the herd is wrong, when everyone else is heading in the wrong direction – in gambling and in life. You can make money and the bookies can make money, as long as other punters are losing.
I realised that one aspect of the bookies’ talents was to price bets not always in line with predicted outcomes but so that people would go for them.
Shortly before a budget someone from a spread company told me they were thinking of opening a market on how often the chancellor would be interrupted during his speech and asked what I thought. I informed him it would almost certainly be none at all, since that was the established norm for a budget. I was then surprised to see they put up a spread of 2-4 interruptions.
When I spoke to him a few days after the budget, I asked in puzzlement why they’d done this, when people who knew parliamentary convention could take money off them by selling at 2. He explained that it had worked really well, they’d had few sellers at 2 but lots of people buying at 4 who therefore lost money – including a minor TV celebrity of the time who had bought at £1,000 per interruption, losing £4,000.
Lesson 5 – Life looks leptokurtic
Life is uncertain, and genuinely unpredictable events happen. You could lose money on decisions which on the basis of the information you had at the time were probably correct. And sometimes I thought I did. Equally well, you could win on the basis of decisions which actually were probably wrong. Doubtless I did that too.
Perhaps this is particularly applicable to politics. According to a recent data journalism newsletter from the Economist magazine (it’s called ‘Off the Charts’, it’s always interesting and I’d recommend signing up for it), forecasting accuracy from a range of sources is worse about politics than for other human endeavours such as sport or culture.
Maybe – I’m not sure if that’s true or not. But I did increasingly form the view that the probability distribution of human events was fat-tailed. Weird things happened, more often than they should. In statistical terms, there’s a case for saying that life is leptokurtic.
As they say, the race is not always to the swift, and while logic may suggest that’s where to put your money, it’s funny how often in politics it turns out that the tortoise beats the hare.
However the UK’s FOI community are not convinced that Edwards himself will turn out to be a kindly stranger. Indeed his arrival in the post is regarded with some trepidation.
This is primarily because of the surprising and indeed disconcerting remarks which Edwards made in September to the House of Commons DCMS committee, at his pre-appointment hearing.
In the FOI section he quickly and without prompting raised the topic of what he called the “extraordinary administrative burden” arising from some FOI requests, and added that “it is legitimate to ask a requester to meet the cost of some of that administration, otherwise you see there is a potential for cross-subsidisation of people who are overusing or even abusing those rights”.
Edwards also expressed a distinct lack of enthusiasm for expanding freedom of information further for private sector bodies who are contracted to deliver public services – “I suppose extending FOI to cover those organisations would be one option”, he replied rather guardedly to this suggestion from an MP.
These statements are a contrast to the stronger pro-transparency stances adopted by previous UK Information Commissioners, who have opposed fees for freedom of information requests, defended FOI against rhetoric about “burden” and “abuse”, and advocated such a broadening of the FOI system.
Nevertheless, for those who like a more positive take, there is a more optimistic viewpoint. This is that Edwards was effectively talking about the situation in New Zealand rather than the UK.
From his remarks he seemed unaware of the tight legal cost limits that apply to FOI responses in the UK. These curtail the administrative effort and cap costs, and also push requesters (or at least the more effective ones) into making narrower rather than wide-ranging applications. Such specific limits do not exist in New Zealand, where the law instead does allow charging for some FOI requests but for a range of reasons public bodies often do not make requesters pay.
Possibly Edwards had briefed himself inadequately on the FOI part of his new role. But that could also turn out to be a problem, if it is symptomatic of a neglect of FOI.
This has already been a serious issue at the UK Information Commissioner’s Office, whose resources, public statements and high profile casework in recent years have increasingly been dominated by the data protection side of their responsibilities, to the detriment of their FOI work.
And in New Zealand as Privacy Commissioner for eight years, Edwards himself was focused on the data protection and privacy field. The country’s freedom of information system is enforced by a different regulator, the Ombudsman (Edwards worked there much earlier in his career).
However, there are some positive views on government transparency in the personal blog Edwards wrote when a lawyer in private practice, before becoming Privacy Commissioner.
In one 2011 piece he argued for the disclosure of free and frank policy advice as “precisely what the electorate needs”. In 2012 he praised the release of briefings for incoming ministers, even if this meant they were then written with a view to public consumption, on the basis that “officials should prepare advice that to the greatest extent possible can stand up to public scrutiny”.
The disclosure of internal government policy advice and especially cabinet papers, particularly once decisions have been taken, has gone much further in New Zealand than under FOI in the UK (although journalists there are still not happy about what they don’t get). If it turned out that Edwards actually wanted to import some of that culture and practice from back home into the UK FOI system it could have a big effect on the role of the ICO.
(Incidentally, his blog also reveals that the Gatwick luggage trolley incident was not the first time he was saved financially by a helpful representative of Britain. As a young budget traveller he once faced a tricky situation with some Bolivian officials who demanded an extortionate sum to stamp his passport. Fortunately he was rescued by the intervention of the British Consul and her insistence on “bureaucratic banalities” – she maintained that any such payment would need a receipt, which for some reason the law enforcers of La Paz were reluctant to provide. And whether for good or ill, Edwards is now about to encounter more of the bureaucratic banalities of the British state).
Ensuring that freedom of information does get enough attention from his office and is pursued with energy and commitment is one crucial challenge facing the new Commissioner. Another is rectifying the sorry state of how the ICO itself complies with FOI law.
In his valedictory office webinar in New Zealand, Edwards cautiously stressed the “constant tension” and “balance” between assisting organisations to achieve their objectives and being an assertive regulator and enforcer. That was in the context of data protection, but in the FOI area as well his impact will depend on which side of that balance he actually gives most weight to.
It will also rest on what is now his personal balance between seeing the world through the perspective of administratively minded state officials or that of a lawyer representing the individual rights of citizens.
One of his New Zealand habits that it looks like Edwards will maintain is his personal Twitter feed. Informal, folksy, casual and sometimes glib, its tone and content will be rather unusual for a top-ranking British public figure at a state regulatory body.
It sometimes caused him trouble in New Zealand, and unless he’s very careful I predict it will cause him more trouble here (in many ways I think that’s a shame, as I like his friendly informality, but that’s how things work), despite the proclamation in his pinned tweet below:
His recent “I could have been someone” tweet also captured above was presumably a Christmas reference to the lyrics of Fairytale of New York. Whatever deeper personal meaning may lie hidden in his gnomic expression we can only guess at. Still, if you meet him your opening conversational gambit could be “Well, so could anyone” (perhaps after you’ve offered him a pound coin).
What kind of “someone” will he turn out to be as UK Information Commissioner?
Somebody in New Zealand who has observed Edwards’ work closely over many years told me: “He genuinely cares about people’s well-being and that institutions are well governed”.
If Edwards wants to deliver on these two notions in the freedom of information field here, he needs to ensure (a) that people’s individual rights to access public sector information are enforced rigorously and assertively, defended against resistance and backlash, and ideally extended; and (b) that the ICO itself becomes a prompt and efficient and well-governed institution in handling information casework and requests.
We shall see. Meanwhile I find it difficult to imagine any of his predecessors as Information Commissioner so gleefully tweeting this video.
“I think any trepidation of the sort you mention, based as it is on a single off the cuff response at select committee, informed, as you say, by my NZ experience, is misplaced. I have always been a strong advocate for FOI, and will continue be in my new role.”
“Also, what you have characterised as “a distinct lack of enthusiasm for expanding freedom of information further for private sector” was more in the nature of a thoughtful pause to consider the various different ways that could be achieved.”
He also said: “I didn’t even know those old blog posts were still accessible!”