Inconvenient truths

Dec 3rd 2009
From The Economist print edition

The most creative attempt yet to get around freedom-of-information laws?

STRETCHING the law on the disclosure of public documents has been a competitive sport among civil servants ever since the Freedom of Information (FoI) Act was passed in 2000. It requires public bodies to reveal information on request, but provides 23 get-outs, designed to protect secrets that ought to stay under wraps because they threaten national security, personal privacy and so on. The rules are often interpreted in a creative way.

Now The Economist has discovered a contender for the most inventive interpretation to date. After thinking about it for nearly two years and trying out various exemptions, the Home Office has refused to release a confidential assessment of its anti-drugs strategy requested by Transform, a pressure group. The reason is that next March the National Audit Office (NAO), a public-spending watchdog, is due to publish a report of its own on local efforts to combat drugs. The Home Office says that to have two reports about drugs out at the same time might confuse the public, and for this reason it is going to keep its report under wraps.

This is believed to be the first time that a public body has openly refused to release information in order to manage the news better. The department argues that releasing its internal analysis now “risks misinterpretation of the findings of the [NAO] report”, because its own analysis is from 2007 and predates the NAO’s findings. The argument uses section 36 of the FOI act, which provides a broad exemption for information that could “prejudice the effective conduct of public affairs”.

The information commissioner, who polices the FOI act, declined to comment because the case was still open. But his predecessor, Richard Thomas, who stepped down in June, questioned the novel defence. “Certainly my office was always quite sceptical of anything which said publishing information is going to confuse the public. If that’s the case, normally you need to put out some extra material alongside it to provide adequate explanation. It’s not a reason for withholding something.”

Sir Alan Beith, the chairman of the parliamentary Justice Committee, which oversees the FOI act, was sharply critical of the Home Office’s excuse. “That’s really scraping the barrel. On those grounds you would have to ban the various hospital reports that are coming out at the moment [see article] because the public are confused about that too. It’s not an argument for censorship, it’s an argument for an even more open and clear debate.” The Home Office was making “a quite ridiculous attempt to hide from freedom of information,” he said.

The legality of the decision is also in doubt, after the department admitted that its refusal to release the document had not been approved by a minister, as is required by law. A Home Office spokeswoman called it an “administrative error”. Retrospective ministerial authorisation was being sought as The Economist went to press.

Legally or not, the Home Office will be able to hang on to its report for now because the FOI act takes so long to enforce. The commissioner’s office is said to be ready to order the release of the report now. If it does, the Home Office has 28 days to launch an appeal, which could take a year. In the meantime, drugs policy will continue to be shaped—or not—by research that the public paid for but may not see.

By Tom Chivers
Published: 2:47PM BST 05 Oct 2009

The MoD document appeared on the website Wikileaks

The Defence Manual of Security is intended to help MoD, armed forces and intelligence personnel maintain information security in the face of hackers, journalists, foreign spies and others.

But the 2,400-page restricted document has found its way on to Wikileaks, a website that publishes anonymous leaks of sensitive information from organisations including governments, corporations and religions.

Known in the services as Joint Services Protocol 440 (JSP 440), it was published in 2001. As Wikileaks notes, it is the document that is used as justification for the monitoring of certain websites, including Wikileaks itself.

Under the section “Leaks of Official Information", it says: "Leaks usually take the form of reports in the public media which appear to involve the unauthorised disclosure of official information (whether protectively marked or not) that causes political harm or embarrassment to either the UK Government or the Department concerned…

"The threat [of leakage] is less likely to arise from positive acts of counter-espionage, than from leakage of information through disaffected members of staff, or as a result of the attentions of an investigative journalist, or simply by accident or carelessness."

The document is particularly keen to avoid the attentions of journalists, noting them as "threats" alongside foreign intelligence services, criminals, terrorist groups and disaffected staff.

As far as traditional espionage and intelligence threats go, the document singles out the Chinese as having "a voracious appetite for all kinds of information; political, military, commercial, scientific and technical."

However, it is "very different to the portrayal of 'Moscow Rules' in the novels of John Le Carre". The Chinese agencies do not "run agents", but instead "make friends", as befits intelligence officers in the Facebook era.

Wikileaks was also behind the memorable leaks of the British National Party membership list, the operating procedures at Guantanamo Bay and the secret workings of the Church of Scientology.

A funny thing happened to my parliamentary evidence…

Aug 27, 2009 FOI in Parliament, Freedom of Information

Readers may recall that on 30th June 2009 I gave evidence to the Committee on Standards in Public Life as part of their inquiry into MPs’ allowances. I gave oral evidence and also submitted an opening statement. I posted this statement on my blog (read it here) and the Committee posted it on their website along with transcripts from the public hearings. The committee’s website states: “The Committee publishes all evidence”.

Well that’s not entirely true. As of yesterday, my submission went missing and I received the following email:

Dear Ms Brooke

Our lawyers have advised us not publish your submission due to the following reason:

“it contains statements about named individuals which are potentially defamatory.”

We are currently seeking their clarification and requesting suitable redaction.

Once we have this, I will forward them to you for your authority, in writing, to the redaction. We will then be able to publish your submission.

Anju Still
Business Manager
Committee on Standards in Public Life

You can read my statement yourself and decide. There’s very little about named politicians and what there is has already been published elsewhere. But more to the point – what sort of public inquiry is it where those giving evidence can’t speak freely and have to worry about being clobbered by the world’s worst libel law? I don’t think the take-down of my statement is necessarily the fault of the Committee and to be fair, lawyers are always risk averse. What is a disgrace is that it should even be a risk to publish evidence given to a committee set up to investigate parliament. There’s also the shameless double standard: That MPs and those giving evidence to MPs are protected from libel by parliamentary privilege, yet those giving evidence to a public inquiry investigating MPs have no such protection. A pretty scandalous state of affairs for a so-called democracy.

It would be very funny indeed if I were to receive a libel writ from an MP for my evidence given to a public inquiry investigating MPs.

 

FBI's Michael Jackson File = 591 Pages

When I submitted a Freedom of Information Act request to the Federal Bureau of Investigation for any records they may have in their archive on Michael Jackson, I expected the agency would reply saying they didn't locate any such records, or that there were only a handful on pages on the late entertainer. I was wrong.

A letter from the FBI yesterday informs me they've located close to 600 pages on him. As I've learned from years of filing these sort of FOIAs, it's going to be a while before anything is released, and, when pages are eventually provided to me, they could be quite mundane.

Here's the FBI letter on my Michael Jackson FOIA:

posted by Michael at 3:27 PM