大象传媒

A civil servant has sent me the wrong electronic version of a document, thus inadvertently revealing that the government is searching for a test case to try to overturn an Information Tribunal ruling which it doesn't like.

This ruling deals with the question of whether information is 'held' by a public authority if it is in its files somewhere but has not been collated into one document. In the , the Tribunal decided that the information is 'held' unless it requires a certain level of skill and judgment to retrieve it. That means that it can be asked for under freedom of information (although Mr Johnson didn't actually get what he wanted because it would have been too expensive to locate the material he was after).

This issue crops up surprisingly often, and the has drawn attention to cases where public bodies have claimed rather implausibly in response to an FOI request that they do not 'hold' any relevant information. Take the Leeds secondary school, which stated it held no information about complaints about bullying (even though Ofsted praised it for how it dealt with reports of bullying) - because the complaints were kept in individual pupil files and it had no specific coordinated log of them.

I have now received a letter from Revenue and Customs, responding to an FOI request, which contains a 'comment' in Word that has been left in, clearly in error. Referring to the Johnson ruling, the comment says that the Ministry of Justice is 'looking for another case to take to appeal to get this overturned'.

The Ministry of Justice would not confirm whether this is true (unsurprisingly), but says: 'In the case of Johnson v ICO and MOJ we made our position on the creation of data clear: The Act does not place a burden on public authorities to create information when responding to Freedom of Information requests.'

(As you can see from the letter, my FOI request was not a very well-informed one - I knew that HMRC could not reveal tax information about individuals, but did not realise this extended to companies - but at least I've learnt something through making the request).

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Which public authority can claim the worst record at dealing with FOI requests? Until today, the National Offender Management Service seemed a clear winner in this competition of incompetence and obstructiveness.

But today a new challenger emerges - Hounslow Primary Care Trust. to the Information Commissioner, its records management has been 'clearly inadequate' and 'totally unacceptable'.

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If you want to read the House of Commons case for appealing the ruling about disclosing MPs' expenses, you can on the website of one of the journalists their case is against, .

It spells out their arguments that revealing MPs' addresses could imperil their security and that the Information Tribunal failed to take account of MPs' 'reasonable expectations' that full details of their expenses would not be revealed.

However, even if the High Court accepts that insufficient attention had been paid to the expectations of MPs, that would not necessarily mean that the Commons would win. This is because that's only one factor to be taken into account, and the Court could still say the overall balance favours revealing the information.

It looks unlikely that the case will be heard before the autumn.

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Yesterday's last-minute decision by the House of Commons not to publish the expected information about second home expenses for MPs has still been causing controversy today.

The MPs who brought about this stance must feel very strongly about it, given the predictable terrible that has resulted for the Commons in general. But today, it's clear that on the other hand there are several MPs passionately in favour of releasing the material.

And it's still uncertain whether the Commons authorities will legally be able to proceed with their plan to postpone compliance with a from the Information Commissioner in another wider expenses case, while the High Court appeal in the second homes case is still pending.

Since the Commons has missed the deadline for appealing in the wider case, it will now need to seek special permission from the Information Tribunal for a late appeal if it wants to challenge the Commissioner's decision. Otherwise it will have to meet the Commissioner's deadline for releasing the material. If the Commons doesn't abide by that, it will be then be up to the Information Commissioner, Richard Thomas, to decide on further action to enforce timely compliance.

This case covers six politicians who were MPs at the time the information was initially requested in March 2005 - Gordon Brown, Tony Blair, John Prescott, Michael Howard, Charles Kennedy and Jonathan Sayeed. The Commissioner ruled that the Commons should release the following for 2003/4:

Travel - The individual amounts claimed for the year requested broken down by mode of travel under the following three main headings: MPs travel (further broken down into European and travel on Parliamentary business within the UK), Spouse and Family travel and Staff travel. This should include summary details of the number and cost of individual journeys undertaken.

Incidental Expenses - The disclosure of the individual amounts claimed with a description of what the expense pertains to.

Staffing - The aggregate sum paid out for each month during the year requested including the number of staff members this pertains to but excluding any reference to named staff members.

Central IT provision - A breakdown of the total cost of the provision of this equipment for the year requested including a description of what this cost pertains to.

Stationery - A breakdown of both the cost of stationery during the year requested including a description of what this cost pertains to and a separate breakdown of the corresponding cost of postage.

Additional Costs - The total amount claimed by the named MPs under the Additional Costs Allowance for the year outlined in the complainant鈥檚 request by category of expense.

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The fuss over MPs' expenses is set to carry on for longer, following a series of twists today in what's expected to happen next.

Despite earlier indications that they would release information about spending by 14 MPs on their second homes by Thursday afternoon, the House of Commons authorities have to appeal to the High Court.

The appeal against the Information Tribunal decision requiring disclosure is is on two grounds. First, that the Tribunal misdirected itself in deciding that the MPs' home addresses should be in general be published (this prospect has caused particular dismay in the Commons). Second, that the Tribunal paid insufficient attention to the reasonable expectations of the MPs that personal information about them should be kept private. This is one of the criteria normally assessed when personal data is considered for release under FOI, and is a wide-ranging ground that could relate to any of the information involved.

The Commons has also backtracked today in another case, which concerns a wider range of expenses (from travel to postage costs) for six MPs. This stems from a freedom of information request submitted by the 大象传媒. Earlier in the day the Commons told the Information Commissioner that it would comply with his ruling to release further (although not complete) details of this spending. The Commissioner's office then put out a statement announcing this. But the Commons now says that this has been overtaken by events and it does not intend to make any of this material public until after the High Court case on the other set of FOI requests. It has missed the deadline for appealing to the Tribunal, and whether it can really maintain this position on information, most of which has nothing to do with the issues of second homes, remains to be seen.

However it all suggests it will be months while the controversy continues over what MPs are entitled to keep secret. This must be disappointing news for those MPs and others like my colleague Nick Robinson who hoped that the focus of publicity about MPs would return to some other aspects of their activities. (Incidentally, as reports, the 大象传媒 has turned down a request for Nick's expenses. But you can see the expenses of the Director General, Mark Thompson).

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When you make a freedom of information request in Azerbaijan it should be answered within seven days. Or 24 hours, when you need the information urgently. Sounds impressive - maybe I'd get my FOI answers more quickly if I developed a new interest in Azeri matters.

If you want to know more about how the UK's FOI law compares to that of Azerbaijan, or India, Japan, Peru, Thailand and selected other countries, then UNESCO has just issued the publication you need - .

Of course, law is one thing and what happens in practice is another. Nevertheless, this provides a valuable guide to varying legal approaches adopted internationally for providing citizens with a right of access to information. South Africa, for example, excludes the Cabinet and MPs but extends its law to private businesses.

Sweden is always noted for its longstanding tradition of openness. But according to the guide's author, Toby Mendel, which country apart from Sweden, has 'probably the most detailed and comprehensive constitutional guarantee of the right to information in the world'? His answer is Mexico.

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It's been a day of changing and conflicting briefing on what MPs will do immediately after the Easter break about revealing expenses details, as by Sam Coates of the Times.

That's with regard to the on disclosing the full extent of MPs' spending on their second homes.

There's also the unresolved question of how the Commons will respond to the about revealing more details of all the expenditure they claim for.

'Freedom of Information can be inconvenient, at times frustrating and indeed embarrassing for governments'. That's the view of .

However, while the government may have found FOI frustrating and inconvenient, I would say that so far it has caused them little in the way of substantial embarrassment. It looks much more as if it's certain MPs who are going to face the true embarrassment.

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In the first such case, the High Court yesterday dismissed a government appeal against a Tribunal ruling forcing it to reveal information.

The case involves the and its financial support for the , a huge and oil and gas development in the Russian Far East.

had asked the ECGD for submissions it had received from other government departments relating to this scheme. The Information Tribunal under the Environmental Information Regulations that this material should be disclosed.

The High Court has now backed the Tribunal's decision. It decided there were some flaws in the Tribunal's judgment but these were not significant enough to uphold the appeal. ECGD says that it is pleased that the judge at least agreed that the Tribunal had made some errors, but it has not yet decided whether to appeal further to the Court of Appeal or to release the information now.

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What do academy schools have in common with security firms working for the British government in Iraq?

They are private bodies receiving public money to provide a service - and the Campaign for Freedom of Information that they should be made subject to the Freedom of Information Act.

In fact, they are just two of the sorts of private organisations which the Campaign wants to come under FOI. Others include those contracted by the public sector to provide NHS treatment, private care homes, prisons, or public transport, as well as bodies like the Press Complaints Commission and the British Standards Institute.

Not surprisingly this is not a popular suggestion with many of those who would be affected, such as charities who belong to the , which is worried about the resulting administrative burden.

The CFoI report is a somewhat late response to the on the question of extending FOI.

What will the government decide? I think we can say one thing for certain - it is much more likely to extend FOI to academies than to private security firms operating in Iraq.

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The continuing is just one angle on the question of whether public funds are receiving all that they should in tax revenues.

Another issue is the size of the 'tax gap' - the gap between taxes that should be paid if everyone complied with the letter and spirit of the law, and those that actually are. This gap includes avoidance, evasion and error (although not necessarily the sort of tax planning that many non-doms are involved in).

For obvious reasons the size of the tax gap is difficult to assess. But the more it is understood, the easier it should be to tackle. In the past the government has published estimates of the gap for indirect taxation. Now freedom of information has forced it to publish which attempted the harder task of investigating the direct tax gap.

Compiled in 2005, this report estimated the annual direct tax gap at 拢22 billion, 9 per cent of tax and NI receipts. It added that it could range as high as 拢41 billion, nearly twice as much.

The research was published on Budget Day and has been little noticed amongst the mass of budget documentation. It was accompanied by a more up-to-date drawing attention to the methodological uncertainties involved, and by a on the government's strategy for protecting tax revenues.

One reason why the Information Commissioner dismissed HMRC's initial refusal to release the document was the argument that 'it is fully open to HMRC to publish the information with whatever explanations 鈥� or further information - it chooses to provide full context about its status, timing and untested nature'.

Although it was released in response to an FOI request, following the , HMRC has strangely published the report not on its , but within the of its website.

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If you've ever made a freedom of information request to the National Offender Management Service, you may well have found it a rather frustrating business.

That has certainly sometimes been the experience within the 大象传媒, and often outside too, judging by the intervention of the Information Commissioner, Richard Thomas, who has just a thoroughly caustic condemnation of the way NOMS has been handling FOI requests.

The Commissioner's long list of criticisms of NOMS include the following:

鈥� NOMS appeared to be extending the time it gives itself for considering the public interest test 鈥榓s a matter of course鈥�.

鈥� NOMS repeatedly fails to give a reliable target date by which the public interest considerations will be concluded.

鈥� NOMS does not attempt to explain the specific reasons for delay or the public interest considerations themselves.

鈥� NOMS often initially applies the same exemption even when other exemptions are more appropriate.

鈥� NOMS does not explain why the exemption applies.

鈥� NOMS鈥檚 advice on requests which are over the cost limit is typically 鈥榰nhelpful and discouraging and not in the spirit of the Act鈥�.

鈥� NOMS has failed to act upon the Commmissioner鈥檚 guidance.

鈥� NOMS has failed to meet deadlines set by the Commissioner.

And that's only some of Thomas's complaints. They are featured in a formal practice recommendation, which is the time he has issued one in relation to a national public authority.

In response, NOMS says: "Given the nature of our work much of the information requested concerns prison security or public safety and we have a responsibility to ensure that these are not compromised by an inappropriate release of information. We acknowledge, however, that our performance in answering requests for information is not what we or the public have a right to expect." It adds that it will take immediate steps to implement the Commissioner's recommendations.

As I noted, Thomas's account of the extensive and systematic failings by NOMS is in line with the 大象传媒's experience of them - for example, this case, in which NOMS spent nearly a year claiming to be considering the public interest on releasing some information, justifying the delay because it said there were so many options to consider, then finally and extraordinarily and bafflingly stating that in fact it did not hold any such information at all.

Whatever its other contributions to the cause of humanity, NOMS thus seems to have solved what philosophers call the 'ontological problem' - how to think about non-existent objects.

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People like me should be more restrained.

That apparently anyway is the of , the Scottish Information Commissioner, who says journalists should show more restraint in their use of freedom of information.

He argues that journalists are the group of requesters who most disgruntle public officials. One of the causes, in his view, is when 'they get the information, decide there鈥檚 no story and make no use of it whatsoever - so the official thinks that a lot of public expense has gone into finding the information'.

It's a fair point. I can't pretend I've never had that pang of guilt, when helpful officials have assiduously provided me with lots of material, but I've not managed to do anything with it. So if one of you is reading this, sorry. The problem as a requester is that you never know in advance whether you are going to find yourself in such a situation.

But on the other hand I suspect there are plenty of cases where officials are delighted to discover that they've managed to redact out of the information they supplied anything which a journalist might find of interest. And possibly their relief at this is much greater than their concern about the time spent in answering the request.

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Last November there was a major in east London in a disused warehouse on the 2012 Olympics site.

The 大象传媒 wanted to know more about the causes of the fire and asked the London Fire Brigade for a copy of its fire investigation report. The LFB refused to supply this unless we paid them 拢89, on the basis that such reports are included in their as a document for which they charge.

The 拢89 report in question apparently consists of one A4 page with accompanying photographs.

However, after protests from us, they did agree
to reveal for free the information in the report which could be classed as 'environmental information'. So without any further charge, here it is:
鈥渢he roof and upper elevation were also lined in part with Asbestos Insulation Board (AIB) and polystyrene cladding鈥�;
鈥渋t was reported by the operators that sparks from the hot metal had fallen onto some adjacent polystyrene cladding, which rapidly caught fire鈥�;
鈥渢hick black smoke was issuing from the roof鈥�.

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exists to answer questions you've got about your health. Its telephone service gets over 8 million calls a year. But whatever the quality of its health advice, how well does it do at responding to freedom of information queries from those who want to know more about the operations of NHS Direct?

NHS Direct has just won a case at the Information Tribunal, which has ruled that it does not have to disclose the geographical phone numbers for its local call centres that lie behind the national rate 0845 number that it publicises. That's because it would disrupt their phone system's ability to provide callers with the best information in the shortest time.

But the Tribunal's contains some scathing criticism of NHS Direct over how it handled the FOI request.

The Tribunal says that NHS Direct's 'initial reply was, as they belatedly accepted, deliberately misleading', since it incorrectly stated 'we do not have geographical numbers into our contact centres for the core NHS Direct Service'.

The Tribunal goes on to attack NHS Direct for the 'confusing' way it presented its case which 'repeatedly changed'. It concludes that NHS Direct 'have only themselves to blame for the suspicion and distrust generated by the way they have handled this request for information'.

NHS Direct now says it has improved its procedures to ensure accurate information is provided in response to FOI requests. It admits it gave out flawed information in this case, but denies that it was intentional.

This is the kind of case that makes some FOI requesters think that they can't rely on the veracity of refusals and have to appeal in order to get at the truth.

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The deadline for public comments on the government's of the '30 year rule' for the release of most government records has been pushed back from last week until Monday, 14 April.

The 大象传媒 has expressed its views. In its submission to the review team, it argues that the 30 year period should be reduced substantially, favouring a reduction to 15 years as a limit which it says would bring valuable public benefits without causing the problems of being too close to current times.

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I've just spotted recent decision from the Information Commissioner which condemns what was then the Department for Constitutional Affairs for taking the 'unreasonable length of time' of almost seven months to weigh up whether it was in the public interest to disclose a particular report.

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Freedom of information is still in the news, with two court cases today.

The is the Information Trbunal to order the release of documents relating to arms dealing between the UK and Saudi Arabia. The Information Commissioner has previously CAAT's case on the basis it would harm UK relations with Saudi Arabia, but the Tribunal has an occasional habit of over-ruling him in the direction of greater disclosure.

The other case is in the High Court, where the is appealing against a that it should publish a of the Home Office's identity cards programme.

This will be followed later in the month by another important appeal in the High Court about access to information, although this one is under the Environmental Information Regulations. In this case the Export Credits Guarantee Department is appealing against the Tribunal's that it should release documents relating to the huge Sakhalin oil and gas project in Russia. This stems from an information request made by Friends of the Earth.

It is the first time such cases have reached the High Court. These two could therefore become greatly important in laying down precedents on the disclosure of internal government policy documents on matters of current controversy.

Last month was a very eventful one in the development of FOI in the UK, with the first Commissioner that cabinet minutes should be disclosed, the far-reaching Tribunal about the details of MPs' expenses, the ministerial resignation in Northern Ireland of Ian Paisley junior , and the first Tribunal that legal advice should be made public. (Maurice Frankel of the Campaign for Freedom of Information gave a thought-provoking of these and other recent FOI happenings in a seminar last week at the ).

It looks like March will be eventful too for FOI.

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