‘Oh dear’, the view within Whitehall

‘It’s not good’, ‘Oh dear’ – civil servants uneasily puzzling over how messages relevant to a freedom of information request disappeared from Nadhim Zahawi’s mobile phone when he was a business minister.

This is part of an FOI disclosure to me, which reveals as well how the Cabinet Office discouraged government departments from checking personal mobile phones or private email accounts for material when answering FOI requests.

The documents also show that the Department for Business, Energy and Industrial Strategy (BEIS), which was dissolved earlier this year, had a blanket policy requiring all releases of information under FOI to get clearance from the departmental press office and ministers’ special advisers.

This process would make it easier for FOI responses to be improperly affected by political interference and communications considerations.

BEIS also relied on the controversial Cabinet Office FOI Clearing House to approve an FOI response it intended to send.

All this is apparent in an FOI reply to me from the Department for Energy Security and Net Zero, a successor to BEIS. The government refused to release this material until it was forced to do so by the Information Commissioner’s Office.

According to the records disclosed, in 2021 the Cabinet Office told BEIS that it should ‘not normally be necessary’ for departments to ask individuals to search their personal devices or accounts for official information relevant to a request, unless there were ‘limited and exceptional circumstances’.

Ministers and officials are supposed to copy to official record systems any messages from their personal devices or accounts that constitute government business. However in reality it is plain that this often doesn’t happen, even though these communications are legally subject to FOI.

A few weeks ago the Cabinet Office issued new guidance which is more in keeping with the law. This states: ‘When responding to information access requests, departments should consider if relevant information may be held in NCCCs.’ (NCCCs are ‘non-corporate communication channels’, such as private email accounts and chat apps on mobile phones).

My request for information related to the department’s handling of an earlier FOI application in April 2021 from the Times journalist George Grylls. This was for messages between Nadhim Zahawi, then a junior business minister, and David Cameron, about Greensill Capital, the financial services company for which Cameron lobbied. Grylls’ request specifically included asking for Zahawi’s phone to be searched.

BEIS replied to Grylls that it did not hold any information within the terms of his request, which was puzzling as Cameron himself revealed some such messages to a Commons committee.

It later transpired that Zahawi had informed officials at BEIS that he did not have any messages from Cameron on his phone. When pressed he said he attempted to find the WhatsApp messages on his mobile but they were no longer there.

BEIS told the ICO: ‘It is our understanding that Mr Zahawi does not know how the WhatsApp messages from Mr Cameron came to be deleted from his mobile phone.’

The disclosure to me reveals some anxious discussion among BEIS civil servants struggling with how to handle the issue of information disappearing from Zahawi’s phone. On discovering that the WhatsApp setting enabling automatic deletion of messages had only been introduced in November 2020 and was not retrospective, one wrote ‘it’s not good’, and another replied ‘oh dear’. A senior private office official added: ‘I’m just getting a bit worried about the effect of another clarification/exchange with him [Zahawi] on this.’

The disclosure also sheds light on the approval procedures for FOI replies from BEIS. The officials responsible for handling the request from Grylls were instructed by the department’s FOI team: ‘All requests involving disclosure of information need to receive clearance from News Desk and SpAds before being issued.’

But according to the Cabinet Office’s FOI guidance, special advisers must not be allowed to make ‘decisions on whether or not to withhold the information requested’.

BEIS also asked the Cabinet Office’s FOI Clearing House for ‘clearance’ before sending its reply that no relevant information was held. This is despite the fact that the Cabinet Office has insisted that the Clearing House (which is to be replaced) only had ‘a small-scale advisory function’.

The treatment of my FOI request by BEIS was extremely dilatory. The department first failed to respond to my initial request for five months, until I had asked the ICO to intervene, who then instructed BEIS to reply. BEIS then took another five months to process an internal review, again not replying until after I had complained to the ICO.

BEIS refused to release this information, arguing that doing so would inhibit officials from expressing their views in a free and frank manner. The ICO then itself took 12 months to decide the case, meaning that I received the material almost two years after I asked for it in May 2021.

It is not surprising that last year the ICO issued a practice recommendation requiring BEIS to improve its generally poor performance in handling FOI requests.

‘Oh dear’, the view within Whitehall Read More »

Integrity and honours

Police investigating allegations about the honours system and links to a royal charity advised the Foreign Office not to release information under FOI about an award given to a Saudi businessman.

The Metropolitan Police’s central specialist crime unit told Foreign Office officials that disclosing the material publicly could damage the process of law enforcement.

The Information Commissioner’s Office has now dismissed an appeal from me and ruled the information cannot be revealed because it would jeopardise a live police investigation and prejudice the apprehension and prosecution of offenders.

The material kept secret includes emails, letters, forms, notes, briefings and committee documents.

The Foreign Office initially dismissed my FOI request on the basis that confidentiality is necessary for the ‘integrity’ of the honours system. It did not mention the police investigation, which was only raised as a factor after I complained to the ICO.

The ICO generally allows public authorities to alter their grounds for withholding material, in line with case law. While the Commissioner’s role is to assess whether the authority’s decision was correct at the time it was taken, in this case the ruling states it was, because the police had already been asked to investigate at that point.

The ICO’s decision notice explains background to the case and summarises the arguments I put forward as to why the information should be disclosed in the public interest.

Integrity and honours Read More »

A&E: when are waits shortest?

Would you like to know what times of the week have the shortest or longest waits in your local A&E department?

I’ve obtained a spreadsheet from NHS Digital (via a freedom of information request) which reveals just that.

The spreadsheet gives data separately for each provider of urgent and emergency care in England for 2021/22. For patient arrivals in each hour of the week, it shows the average duration of attendance there until discharge or admission – ie, until leaving the hospital or being admitted as an inpatient.

The overall A&E pattern is very much that there are longer waits in the late evening and overnight, shorter waits in the morning, with the afternoons/early evenings in the middle.

Source: Analysis by Martin Rosenbaum from NHS Digital data

In this chart each row going across is a different provider of emergency/urgent care in England (I have excluded those with only partial data or which are not 24-hour services), and each column is an hour of the week, going from 0000-0059 on Monday to 2300-2359 on Sunday. The red cells show longer average waiting times, the green cells shorter waits, and the yellow ones intermediate times.

It makes clear that for almost all providers, patients who arrive just before midnight or in the hours afterwards experience the longest waits on average, while those who arrive in the morning have the shortest waits.

This pattern is the same on every day of the week, including weekends. The very longest waits of all tend to be overnight from Monday to Tuesday.

The exceptions to this are mainly urgent treatment centres rather than A&E departments – their busiest times are often late afternoon or early evening. They appear congregated towards the top of this chart due to the ordering of the NHS provider code system.

Some providers show much greater variation in waiting times across different points of the week than others do.

Overall national statistics about busy times of the day in A&E are published routinely, but as far as I am aware this dataset broken down by different local providers and hour of the week has not been released before.

In a period when there is increasing concern over waiting times for emergency and urgent care, it is important and valuable localised information.

A&E: when are waits shortest? Read More »

ICO sets out new targets for improvement

Information Commissioner John Edwards launching his new strategy

John Edwards is clearly adapting to life in the UK, seven months after he arrived here from New Zealand to take up the role of Information Commissioner.

Launching his three-year strategic plan for the Information Commissioner’s Office yesterday, he succeeded in saying ‘day-ta’ most of the time, although he did manage to come out with at least one ‘dar-ta’.

While data protection (however pronounced) is certainly the main focus of his attention and indeed the dominant activity within his budget, the new Edwards plan is also important for those concerned about the FOI side of the ICO’s work.

To his credit Edwards has recognised publicly as well as privately that the substantial delays in the ICO’s handling of FOI complaints are not acceptable. In his speech he said that the administering of FOI law ‘requires fundamental change, and that change has to start in my office’.

He and his team have also shown a welcome willingness to engage with the FOI community and discuss (in his words) ‘how we fix a system that clearly needs fixing’.

As the ICO leadership itself recognises, things are now at the stage where requesters need to start seeing practical results rather than just hearing expressions of intention.

As part of its plan the ICO announced new objectives for its work on handling complaints under FOI law and the Environmental Information Regulations (EIR). These include:
• ensuring that less than 1% of its caseload is over 12 months old
• reaching a decision on 80% of complaints within six months
• ensuring that 66% of tribunal appeal decisions go in the ICO’s favour

The current serious casework delays are illustrated by new up-to-date statistics which the ICO also released yesterday, with a commitment to do this regularly.

This is a valuable improvement, because in recent periods the ICO has only been publishing an inadequate series of datasets which are outdated, patchy and limited to closed cases.

The latest figures (for end of June 2022) show that 7.2% of active cases were over 12 months old. The ICO had reached a ‘first decision’ within six months on only 67.7% of cases.

The new dataset of open casework reveals that the ICO is still investigating one complaint relating to Brent Council nearly 26 months after it was made in May 2020.

There are 25 FOI/EIR cases that were still unresolved over 18 months after they were received. Of these, one of them actually involves a complaint about the ICO itself.

But the public authority which features by far the most frequently in these long-delayed cases is the Cabinet Office, which accounts for nearly half of them – 11 of the 25 involve complaints about its refusal to supply information requested. It is not clear whether this is because the Cabinet Office handles especially tricky issues or whether it is particularly slow and difficult about cooperating with ICO investigations, or indeed both.

As for the ICO’s performance objective for when its decisions are appealed by dissatisfied requesters or authorities, I have done a very quick analysis of tribunal cases so far this year, and the target of 66% appears pretty close to the current success rate. My rough calculation produced a figure of 68% (it is based on the summary outcome listed on the tribunals website without checking the details of individual cases).

ICO staff accept that some of their decision notices will inevitably get overturned, but there is always a risk that faster processing of cases can lead to more reversals later.

The ICO says its new approach will include more active prioritisation of significant cases and greater attempts at speedy resolution of disputes without the issuing of a formal decision notice.

For the ICO to improve its FOI casework handling is important and will be a relief to frustrated requesters.

However it is essential as well for the ICO to tackle the crucial systemic issues of poor performance on FOI by numerous public authorities. This week the ICO also released a new framework for regulatory action.

While it is understandable that ICO staff wanted to have this revised policy in place before implementing a tougher stance, it is unclear for the moment how much tenacity will be deployed in carrying out its series of measures and enforcing better standards.

One early promising sign could be the practice recommendation it delivered this week to the Department of Health and Social Care, reprimanding the department over its failure to properly search non-corporate communication channels when responding to FOI requests.

In the Q&A session at the launch I raised one particularly egregious example of FOI deficiency, the fact that in the latest set of government statistics the Department for International Trade had breached the legal deadline for replying to requests an extraordinary 55% of the time.

I asked Edwards what more evidence he would need before taking enforcement action against a badly performing authority and he replied simply: ‘None’.

If this does indicate a much firmer attitude is being adopted, that then is good news and will be strongly welcomed by requesters pursuing their legal rights to information.

I understand the ICO has taken up the issue directly with the DIT. But how persistently determined it will actually be in tackling this sort of blatantly inadequate FOI record remains to be seen.

Edwards announced that he had persuaded government to set up a cross-Whitehall senior leadership group to drive improved compliance on data protection within the civil service. There is some hope within the ICO that this could in future be extended to cover systemic issues of government FOI compliance too.

Unlike his predecessor Elizabeth Denham whose extent of contact with the Cabinet Office had become minimal by the end of her tenure, Edwards says he’s happy with the level of engagement he has been getting from the Cabinet Office.

Edwards also stated that the ICO will be publishing its internal staff training materials on both FOI and data protection, and this is expected to happen soon.

The ICO has initiated a consultation exercise on the three-year plan. If you want to express your views, you can do so here.

ICO sets out new targets for improvement Read More »

Half a million questions

Source: Cabinet Office FOI statistics, my projection

My prediction is that today, somewhere in Whitehall, a civil servant will receive a request for information which is the half-millionth freedom of information application to UK central government departments since the FOI law came into force in 2005.

This is based on my extrapolation from the official quarterly FOI statistics for central government issued by the Cabinet Office.

Their published quarterly figures don’t include the cumulative numbers since FOI started, but I’ve been keeping track of the running total, as shown in my chart above.

At the time of the latest published data, for quarter 1 of 2022, the cumulative number of requests to government departments stood at 491,838.

The Cabinet Office won’t be releasing their next set of statistics, covering Q2 of 2022, until September, but I’ve made a projection. Assuming the number of requests in Q2 of 2022 is 7.8% down on last year, the same factor by which requests in Q1 of 2022 were down on the corresponding quarter of last year, then my estimated cumulative total after the end of quarter 2 of 2022 is just over the half million mark, at 500,076 FOI requests submitted to departments since 2005.

On this basis the half-millionth request would just squeeze into the current quarter, today!

If you’re the recipient, congratulations. I feel it should be accompanied by some kind of prize, but sadly no one, not even you, will actually know.

So that is half a million questions. The number of decent answers? Well, that’s a different issue altogether.

Half a million questions Read More »

Scotland’s alphabet effect

Last week’s local election results appear to confirm how a candidate’s chance of getting elected to Scotland’s councils is dramatically influenced by a factor which is nothing to do with their abilities – alphabetical order of surnames.

This arises from the voting system used for Scottish council elections, the Single Transferable Vote (STV), where voters number candidates in their order of preference.

Parties will stand more than one candidate in a multi-member ward if they think they have a chance of getting more than one elected.

But of course lots of voters, who may have strong preferences between the parties, don’t particularly care about preferring one candidate from within a party to another.

It’s well established that under STV many voters have a tendency to number candidates from the same party just in the order they find them on the ballot paper, which is a major advantage for those listed first. In Scotland that is alphabetical order by surname.

To illustrate the striking extent of this I have looked at what happened last week in two Scottish councils, Aberdeen and West Lothian (the first and last councils alphabetically, in a limited attempt to avoid alphabetical bias in my selection).

I examined all the cases in these two councils where a party stood two or more candidates in one ward.

In West Lothian, there were 14 examples. In 13 of these, the candidate who came first alphabetically from that party got more first preference votes than the candidate listed second alphabetically, sometimes by huge margins.

The candidates listed first alphabetically for a party averaged 1,669 first preference votes; the candidates from the same party listed second alphabetically only averaged 745 first preferences – less than half as much.

The result was that the candidates listed first alphabetically for a party had a 100% success rate at getting elected; the candidates from the same party listed second alphabetically only had a 64% success rate of election.

In Aberdeen, there were 16 examples. In 14 of these, the candidate who came first alphabetically from that party got more first preference votes than the candidate listed second alphabetically, again sometimes by huge margins.

The candidates listed first alphabetically for a party averaged 1,223 first preference votes; the candidates from the same party listed second alphabetically only averaged 554 first preferences – again, less than half as much.

The result here was that the candidates listed first alphabetically for a party had an 88% success rate at getting elected; the candidates from the same party listed second alphabetically only had a 56% success rate of election.

Obviously it would be ideal to do this analysis for all the 32 local authorities in Scotland. But given the different locations and formats in which all the results are published, that would be a very laborious exercise which is too time-consuming for me to do right now. If there was one single national database of all Scottish local election results in a convenient format for exporting data then it would be a lot more feasible! (I also haven’t examined the impact in the very different political circumstances of Northern Ireland).

It seems clear that the current position in Scotland represents a form of institutionalised systemic discrimination. A council seat is often a step towards building a powerful political career on a bigger stage.

In the past the Scottish government has considered various means of ameliorating this situation but has not implemented any change. Potential options would include randomising the ballot paper order or listing candidates in reverse alphabetical order on half the ballot papers.

Parties could counteract the effect if they had loyal, disciplined voters who would order candidates as instructed, with different instructions issued to different subsets of voters. Roughly equalising the number of first preferences would help to get more than one of their candidates elected.

There has been some evidence of alphabetical voting affecting results in English and Welsh elections, but this is to a much lesser extent because of the different voting systems. Alphabetical voting is also an international phenomenon.

And alphabetical bias also exists in other contexts – here’s an interesting paper on its impact in an academic discipline where co-authors of papers were listed alphabetically.

By the way, when drafting this piece I noticed I had automatically defaulted to providing the Aberdeen data before that for West Lothian, so I went back and reversed that. But I did leave Aberdeen first in the chart.

The acceptance of alphabetical order as an apparently natural and unproblematic method may have a deeper and more insidious grip on our minds, and more important consequences, than we may consciously realise.

Scotland’s alphabet effect Read More »

Commons Committee calls for cultural shift on FOI

The Commons Public Administration Committee is calling for a ‘cultural shift’ across government, with ‘greater advocacy for the core principles’ of FOI and action to improve outcomes for FOI applicants.

In a new report which is highly critical of the Cabinet Office, the committee concludes: “The Cabinet Office needs to work harder to ensure a strong and enthusiastic tone from the top that supports FOI.”

The MPs also rebuke the Cabinet Office for a ‘lack of transparency’ on the workings of its FOI Clearing House, which advises other government departments on handling information requests. And they criticise the Cabinet Office’s refusal to allow an audit of its FOI operations by the Information Commissioner’s Office as ‘misjudged’.

The committee wants to see better timeliness in the freedom information process, through government conducting internal reviews of requests within the 20 days recommended in the Information Commissioner’s guidance.

These are some of the conclusions in the newly published report from the House of Commons Public Administration Committee after its inquiry into the Cabinet Office and FOI, focused around the controversial Clearing House unit.

The report also draws attention to evidence the committee received about ‘poor FOI administration in the Cabinet Office and across Government which appears to be inconsistent with the spirit and principles of the FOI Act’.

The committee chair and Conservative MP William Wragg said: “As FOI policy owner and coordinating department, the Cabinet Office should be championing transparency across government, but its substandard FOI handling and failure to provide basic information about the working of the coordinating body has had the opposite effect.”

The report contains some stinging rebukes for the Cabinet Office, saying that ‘transparency is needed to restore trust’. It calls for the quarterly publication of Clearing House casework data, broken down according to the referring department, and analysed for the timeliness of replies.

The committee’s MPs were clearly particularly annoyed by the fact that the Cabinet Office now releases less information about the casework of the Clearing House than was issued in the past by the Ministry of Justice when it had responsibility for FOI and the Clearing House.

The committee is also concerned about the overall approach of the government to openness. It is worried about ‘a slide away from transparency’ illustrated by the decision to exclude the new Advanced Research and Invention Agency from FOI. The MPs call on ministers to show proactive leadership on championing FOI and set a ‘stronger tone’ on promoting its benefits.

The MPs are unhappy about a split of responsibilities, in which the Cabinet Office oversees FOI policy but DCMS funds the ICO. They argue this should be resolved by either the Cabinet Office taking over the funding or DCMS being given charge of FOI policy.

The committee’s inquiry was prompted by a Tribunal case last year, arising from an FOI request made by Jenna Corderoy, a reporter for openDemocracy. This succeeded in revealing details about FOI requests passed to the Clearing House by other departments after much resistance from the government.

Last August the government said it would set up its own internal review of how the Clearing House functions. Nothing more happened until yesterday – funnily enough, the day just before the Commons committee report was to be published – when it revealed that this review will be led by Sue Langley, the lead non-executive director at the Home Office.

The government review will examine these questions:

● Is the role of the Clearing House proportionate and effective?

● Is there sufficient information available to the public about the operation of the Clearing House?

● How is the ‘applicant-blind’ principle [that the identity of the applicant is not relevant to the handling of an FOI request] understood and adhered to across government?

● Are there other areas of FOI practice across government with scope for improvement (within the scope/line of sight of the Clearing House)?

It is expected to be completed by the summer parliamentary recess (scheduled to start on 21 July), and the Cabinet Office says it will publish a summary of the findings.

The Cabinet Office will also have to publish a formal response in due course to the report of the Commons Public Administration Committee.

I submitted written evidence to the committee, which is here, and was invited with some other journalists to give oral evidence, which is here.

Commons Committee calls for cultural shift on FOI Read More »

The perils of @JCE_IC

From the internal briefings prepared for the new Information Commissioner John Edwards, it’s clear there has been rather a lot of angst among his senior colleagues about how he conducts his personal Twitter feed.

His account’s tone was casual and folksy when he was New Zealand’s Privacy Commissioner, combining some serious policy points with jokey remarks, funny videos and cultural criticism, while slipping into the occasional political controversy. As I said when I wrote about it before, I like its friendly informality, but I’m not at all surprised that his new cautious-minded colleagues seem deeply wary about the ‘risks’.

The induction documents recently released under FOI reveal how the ICO management assembled a battery of arguments and research to try to persuade him to adopt a more corporate approach for his tweeting.

They fear that his unofficial posts could be seen as the ICO’s organisational view and policy – perhaps they’re thinking of the time he described Facebook as ‘morally bankrupt pathological liars’.

They’re worried that his personal tweets could be ‘misconstrued’ – perhaps they saw the time he pointed out that a New Zealand opposition politician sent emails in comic sans.

They’re concerned that he could be seen as endorsing individuals or sub-tweeting – linking to a Guardian article that’s seven years old to explain to him the tricky etiquette of sub-tweeting.

They certainly don’t want him conversing with other Twitter users or getting involved in Twitter spats, recommending he should ‘reduce or limit interaction with other Twitter users’.

They warn him that ‘UK media have form of going through old tweets to try and find content that could be used critically’ and so maybe he should delete some of them, though obviously I worked through his back catalogue ages ago.

They would like him to change his Twitter bio so that it directs enquiries to @ICONews, but that hasn’t happened – yet.

And naturally they want him to focus his feed on ICO work and events, and tweet about this in a timely way. They’ve done their research and thus can draw attention to the anodyne content of the personal Twitter feeds of various other heads of UK public agencies – who are largely content to retweet their organisations’ press statements, with a little extra stuff on the wonderful work of whichever outpost they have just visited, perhaps a picture of some conference they’ve spoken at, and minimal interaction with anyone else. This familiar flow of earnest tedium is presented as ‘good practice’ in corporate social media.

Still it’s not all negative – they point out that the @ICONews Twitter account has ten times the followers that Edwards has personally, and therefore they ‘can help to grow’ his follower base.

Has it changed the tone of his tweets? Maybe Edwards is being a bit more careful and corporate, but we’re still getting the muppet videos and the cautionary tales of how to behave on trains.

The perils of @JCE_IC Read More »