a talk at the Centre for Freedom of Information, University of Dundee, 19 October 2011
First an illustrative little story. In 2005 under what was then the new freedom of information (FoI) legislation I asked the Department for Environment, Food and Rural Affairs in London about a list of potential nuclear waste dumps which the government waste agency, Nirex, had given them. This was a Defra official’s baffling response:
What I am saying is that we don't have the list. I wouldn't want and couldn't be definitive about whether we had never had it. All I am saying is that if we did once have it, there's no record or memory of that being the case.
Maybe they could have just said: “Sorry, we lost it.” Six months later, after a lot of backstage political manoeuvring and several U-turns – all of which I know about because of a later FoI request – the list of possible nuclear waste dumps was released. Two months after that I heard back from the UK Information Commissioner, to whom I had appeal earlier when it looked like the list might not be released, saying he was ready to begin his investigation. I had to point out that if he had read the newspapers, he would know that the information had all been released so the investigation was redundant. As you’ll see from what I’m going to say, I’m not sure that the UK Information Commissioner’s attitude has improved much since.
First, a brief overview of what I’m planning to say:
- I will start by outlining my experience with freedom of information.
- Then I will say a quick word about the frustration of delays, and differences north and south of the border.
- Then I will talk about my appeal to the Information Tribunal against the refusal of the Ministry of Defence, and then the UK Information Commissioner, to release reports on nuclear safety. That is what I mostly want to talk about.
- I’ll finish by drawing out some lessons and making some observations about the different appeal processes north and south of the border.
experience with freedom of information
I have to stress that what I am talking about is just my experience, and my personal views. Others of course may have different experiences. Here, in summary, is my experience so far:
245 requests under Freedom of Information Act and Environmental Information Regulations to more than 30 government agencies in UK
61 to Scottish Government
43 to Ministry of Defence
27 to Health and Safety Executive
18 to Scottish Environment Protection Agency
17 to UK government departments (including 6 to DECC)
17 to Nuclear Decommissioning Authority, and other parts of nuclear industry
10 to Scottish Natural Heritage
6 to the Environment Agency
6 to Transport Scotland
40 to other public sector agencies
Just under half – 117 out of 245 requests – were made to UK bodies under the jurisdiction of the UK Information Commissioner, with the rest made to Scottish public bodies under the Scottish Information Commissioner.
They were mostly about environmental issues: nuclear power, nuclear weapons, transport, food, agriculture, pollution, development, wildlife, waste, Donald Trump etc.
Roughly half of requests so far have contributed to published stories.
I’ve made 30 appeals to Scottish Information Commissioner (SIC), mostly against the Scottish Government: 24 won, 6 lost (depending on how you define winning and losing).
I’ve made only 5 appeals to UK Information Commissioner so far: 2 won, 3 lost.
I’ve made one appeal to the Information Tribunal in London, which I won. This is the one I’m going to talk about.
I recognise that much progress has been made by some agencies, including the SIC, in clearing backlogs. But there are still major problem with delays with UK agencies. I’ll give give one, ongoing, example from south of the border. It took ten months in 2005 and 2006 for the Ministry of Defence (MoD) to decide not to release a document about nuclear safety on the Clyde - a delay for which they profusely apologised. The delay in responding "was neither reasonable nor acceptable”, an MoD official said in a letter. "I apologise again for these failings and will ensure that both the Defence Logistics Organisation and the Clyde Naval Base are made aware of them and the need to ensure that future requests are dealt with in accordance with the Act.”
Since then I have received a series of further responses from the MoD offering repeated apologies for delays on other requests, some of which are now stretching over years. Half a dozen requests I made to the MoD in October 2008 have taken two or three years to get a response. Earlier this year, the UK Information Commissioner announced an inquiry into the prolonged delays experienced in a number of public sectors agencies, including the MoD, to which I have contributed. That’s good, but I’m yet to be convinced that we’ve cracked the problem.
In my experience problems with delays are worse under the UK regime, than under the Scottish regime. This is perhaps not surprising, given how much tougher the Scottish legislation is. One key issue is the legal difference for time limits for internal reviews. In Scotland public agencies are obliged under the Scottish legislation to respond to requests for internal reviews within 20 working days. But under the English legislation there is no limit set for the time taken to respond to requests for internal reviews, meaning that agencies can, and do, take years to conduct internal reviews.
prejudice to effective conduct of public affairs
Perhaps the commonest reason to withhold information given by government officials in my experience is ‘prejudice to effective conduct of public affairs’ - section 30 of the Scottish Act and section 36 of the UK Act. The wording is always similar, like this quote from just one refusal I’ve had:
The release of the information would inhibit both the free and frank provision of advice and the free and frank exchanges of views for the purposes of deliberation.
I’ve had these words many times. The government’s argument in essence is that revealing the private advice of ministers or officials would inhibit them from providing honest advice in the future because people would be less likely to say what they think, if they knew it could end up being published. This, the arguement goes, would damage the quality of government. But I’m glad to say the SIC has been very robust in dealing with this excuse, saying that:
- it can’t be used as a blanket get-out
- every case has to be considered on its merits
- the more time passes, the less potential harm (so it maybe worth asking again later)
- the damage to be public interest has to be real to merit withholding information
So detailed consideration of numerous requests in Scotland has resulted in some documents being released, either in full or in part, and some withheld when this exemption has been used. This seems to me to be a good approach.
However, the UK Information Commissioner has, in my experience, been much less robust in dealing with this excuse. And to illustrate that I want to tell the story of my biggest and most time consuming FoI request so far.
Back in December 2006, I asked the Ministry of Defence under freedom of information law for six reports on nuclear safety, including the latest annual report on the safety of nuclear weapons by its internal safety regulator. Fourteen months after I first requested the information, and after an internal review, the MoD provided heavily censored versions of the reports, with every substantive comment made by regulators excised. In March 2008, I appealed to the UK Information Commissioner, who at the time was Richard Thomas, to overturn the decision. He was then replaced in June 2009 by Christopher Graham.
So it was Graham who eventually issued a decision in February 2010 – nearly two years after I asked for an investigation. To my surprise, he endorsed the MoD’s arguments, virtually without question. It was in the public interest for the MoD’s internal safety regulators to make criticisms “free from the ‘chilling effect’ of having these discussions made public,” the Information Commissioner argued. But I think this is the inverse of the truth. Keeping such criticisms within the MoD’s secretive citadel is far more likely to have a ‘chilling effect’ on the regulator’s frankness and effectiveness than opening them to the light of public scrutiny. That is, after all, how most other regulators, like the Health and Safety Executive, the Scottish Environment Protection Agency and the Environment Agency work.
So I did something I have never done before, and I’m not sure I ever want to do again. In March 2010 I appealed to the Information Tribunal against the Information Commissioner’s decision. It was a daunting experience, for a lay person, a non-lawyer. I debated whether to involve laywers, took advice from others more experienced, but decided in the end to go it on my own, mainly to save on costs. And to make sure I had people on my side who really believed in what I was trying to do.
The first formal communication I got from the Tribunal in April last year, I honestly couldn’t understand. I have a degree in English literature, and I read and write as a profession, but I was struggling.
Signed by judge David Marks, it was the “initial directions” for the handling of my appeal. Here’s the first sentance:
Upon reading the Notice of Appeal and the Information Commissioner’s Response, it is ordered that:
Unless either party provides to the Tribunal within 7 calendar days of the date of this order a written objection, there will be no preliminary hearing to deal with the management of this case to make directions for the final disposal of this matter; if such written objection be received within the aforesaid time period, the said preliminary hearing is to be held by way of telephone conference at a date before 16 May 20100 to be notifed to the parties with a time estimate of 30 minutes….
It went on:
The parties are to use their best endeavours to agree directions in advance of any preliminary hearing which may be held in accordance with the provisions of paragraph 1 above. If no preliminary hearing is to be held, they are to agree such directions within 21 days of the date of this order, choosing such parts as appropriate from the possible directions set out below, together with such other directions as are appropriate to the case.
That certainly wouldn’t win a plain English award. It reminded me of the famous Marx brothers sketch in the film, ‘A Night at the Opera’ where Groucho and Harpo are trying to negotiate a contract for an opera singer. You might remember.
“The party of the first part shall be known in this contract as the party of the first part”, and “The party of the second part shall be known in this contract as the party of the second part”, and eventually the clause: “If any of the parties participating in this contract is shown not to be in their right mind, the entire agreement is automatically nullified." That's just the usual sanity clause, says Groucho. “Ha, you can't fool me!,” says Harpo. “There ain't no Sanity Clause!”
I’m afraid the initial directions communication from the Information Tribunal set the tone of all the commmunications I received over the following few months. I became embroiled in an intimidating and intensely legal progess, in which I frequently felt at sea. I took advice when I could, but basically I was on my own, and got little sympathy from the Tribunal, or the Information Commissioner’s lawyers. They first asked me to agree that one of my alleged grounds of appeal should be “struck out”, which I agreed to as it was a one-sentence comment in my appeal that was peripheral. I had said one of the grounds for refusing to provide information was “baffling”.
The Information Commissioner produced a brusque submission which urged the Tribunal to dismiss my appeal without a hearing. We agreed to allow the MoD to be “joined” to the appeal. And eventually, the Information Commissioner produced a set of draft directions for my appeal, which after lots of tooing and froing we agreed. Then there was lots of correspondence about the agreed bundles of evidence to be put before the Tribunal, much of which was difficult to understand. All the time I felt at a distinct disadvantage, not being a lawyer familiar with the process and the language.
My anxiety wasn’t helped by the patronising and intimidating tone of some of the communications I received from the Information Commission’s lawyers, the Ministry of Defence lawyers, or the Tribunal itself. In their plea for the Tribunal to dismiss my appeal without a hearing, the Information Commissioner’s lawyers, accused me of making a “general assertion” in the appeal which I would need to substantiate. They noted pointedly that I “failed to address” some issues and revealed that the Commissioner had set out the public interest arguments for keeping the MoD reports secret in a “confidential annex” to his decision, which I was unaware of. The Commissioner’s lawyers said that, if the Tribunal did decide to allow my appeal, they would provide a copy of this confidential annex, helpfully adding; “In the interests of clarity, a copy of the confidential annex would not be provided to Mr Edwards.”
To help me, I asked three experts if they would support my appeal, offering to pay them nothing. They included an anti-nuclear activist and researcher, John Ainslie, the independent nuclear engineer and consultant, John Large, and a former MoD senior safety official, Fred Dawson. Early on, we decided to challenge the assumption that the Commissioner, the Tribunal and the MoD could see the reports that the MoD wanted to keep secret, but we couldn’t. So John Large made a submission to be allowed to see the information if he signed a strict confidentiality agreement. He argued, cheekily perhaps, but with some justification, that he would be better able to understand and interpret the some of the highly technical content than the Commissioner’s staff.
The MoD argued that our request would render the Tribunal “otiose”. The Information Commissioner said that our reasoning was “flawed”, our references “inapt”, and our applications based on a “misunderstanding”. The commissioner concluded by inviting the tribunal to reject our application, again adding helpfully:
In the interests of clarity, the Tribunal is invited to issue a direction under rule 14(1) prohibiting disclosure of the disputed information, and a direction under rule 35(3) and 35(4)(d) Rules restricting the Appellant’s and Mr Large’s attendence at any oral hearing of this matter.
Perhaps not surprisingly, the Tribunal rejected Large’s request. In doing so, it questioned whether he was really an expert witness, accused him of wanting to “usurp” the role of the Tribunal, and argued that granting his request would breach the spirit, if not the letter of the Freedom of Information Act. The Tribunal was also disparaging about some of the concerns I had expressed about the way in which the Information Commissioner kept trying to narrow the grounds of my appeal.
Nevertheless we soldiered on. At the end of August last year – six months after I first lodged my appeal – the MoD pleaded for more time to extend the deadline for submission of witness statements. The QC they had originally hired had taken a one year sabbatical, their new QC had been away for a month, and the solicitor and his MoD client were also away. You know how it is. We agreed to a delay. In September, the MoD asked for another delay because the MOD’s witness “has now retired and is thus providing his evidence on a voluntary basis”. Reluctantly we again said OK.
Meanwhile I asked the Tribunal to order the MoD to release to me the submission that had been made by officials to the armed forces minister in May 2007, Adam Ingram, arguing that it was in the public interest to keep the nuclear safety reports secret. This was the opinion they had to seek from a “qualified person” under Section 36(2)(b) of the Freedom of Information Act. The MoD agreed to my request, and released a copy of the submission to the minister, and the minister’s reply. It was an eye-opener.
In the submission to the minister, MoD officials highlighted the “presentational issues” that my request involved. It pointed out that one of the documents had also been requested by another journalist. And it said:
The applicant, Mr Rob Edwards, is an environmental journalist who generally writes from an anti-nuclear standpoint. He is an avid user of the Freedom of Information Act and often appeals against RFIs [refusals] where not all information is provided.
The implication was clear: I was a troublemaking hack who will only use the information to embarrass the MoD, so we must keep it secret. That is what the minister agreed to. Unfortunately, of course that is not a ground for withholding information under freedom of information law. Yet it seemed to be part of the rationale behind the MoD’s prolonged and repeated attempts to suppress the reports, supinely endorsed by the UK Information Commissioner.
We seized on this new evidence, and hastily re-wrote our submissions to the inquiry. In the end my three witnesses submitted over 100 pages of evidence to the Tribunal. The MoD’s witness statement and annexes ran to 25 pages. The Information Commissioner did not submit any witness statement. We argued that the MoD and the Commissioner had breached freedom of information legislation. We accused the MoD of making “emotionally charged” statements that were “potentially prejudicial”, and much else.
We asked for guidance on whether the witness statements could be referred to in the media, which was opposed by the MoD. We also argued that the matter should be resolved at an oral hearing, rather than by paper submissions, so that we would get an opportunity to cross-examine the MoD’s witness and a representative of the Information Commissioner (and expose ourselves to cross-examination). This again was opposed by the MoD who argued it would be “disproportionate and unnecessary”. An oral hearing was also opposed by the Information Commissioner, who argued that the issues to be resolved were “narrow” and could be dealt with adequately by written submissions. As before, the Commissioner added another helpful rejoinder:
Should the Tribunal decide to order an oral hearing of this matter, the Commissioner reserves his right to request the Tribunal excuse his attendance.
This gave us the bizarre prospect of taking part in a hearing in which the main subject of the appeal, the Commissioner, would be absent.
As the argument about whether or not to hold an oral hearing rumbled on, the MoD’s lawyers made a surprise request. They asked that “further consideration of this application be stayed for a short period pending the Ministry of Defence considering whether to make further representations relevant to the future conduct of the appeal.” This was puzzling, and opaque. Five days later, all became clear. The MoD were about to executive a startling U-turn.
In an email on 6 October 2010, the MoD’s lawyers pointed out that the Tribunal was due to consider whether or not it was in the public interest to withhold the nuclear safety reports in May 2007. The MoD had “taken the opportunity that has arisen in dealing with this appeal to consider whether or not to continue withholding this information”. It said that it had taken the “practical step” of considering how other requests for information in this area since 2007 have been dealt with. It concluded:
Having carried out this exercise, the MOD has decided to release the information previously withheld under section 36(2)(b)(i) to the Appellant …Without prejudice to its position if this appeal were to proceed for any reason, the MOD anticipates that this pragmatic approach renders the Applicant's appeal academic.
The documents, repeatedly refused for nearly four years, were released to me a few days later. They were very interesting, most notably a 2006 annual report from the MoD’s internal safety watchdog talking about issues with the MoD’s nuclear submarines, its nuclear bombs and their maintenance and transport. I wrote major articles for the Observer and the Sunday Herald revealing a series of disturbing problems. Since then, remarkably, all the subsequent annual reports by the MoD’s internal nuclear safety regulators have been released, each uncovering new problems, particularly because of the increasing pressure on resources. I have written maybe half a dozen articles as a result, and others have written many more. The public and politicians are aware of serious issues about the safety of nuclear submarines and weapons they otherwise would not have known about, and are better able to judge what to do. We are in a better place now, than we were before.
I don’t really know why the MoD decided to make such a dramatic last-minute change of heart. Maybe it was to do with a change of government, or a change of minister. I’d like to think it was because they realised that they were going to lose at the Tribunal. It may also have had something to do with the fact that if they made the equivalent of an out-of-court settlement, they would avoid a perhaps uncomfortable precedent of a Tribunal decision. There is only one clue, in the most recently released 2010 report from the MoD nuclear safety regulator. Under the heading ‘freedom of information’ it says that the MoD’s policy of keeping regulatory reports secret under Section 36 of the Act had been rejected by a “ministerial submission” in March 2010, and so the reports were now being released. It’s not clear whether this was related to my Tribunal appeal or not, and I guess I’d have to make another FoI request to find out. The MoD report noted it was spending more time dealing with FoI requests, and that various media articles had resulted. Notably, there was no complaint about how this might inhibit their ability to regulate effectively because of the “chilling effect” of publicity. I rather suspect the opposite. I think they are more powerful, not less.
A couple of footnotes to my Tribunal appeal. There was some correspondence between the Commissioner and the MoD about a few sections of the reports that remained redacted. I asked to see this correspondence, but this was opposed by the MoD and refused by the Tribunal. Because the MoD had released the bulk of the information I had originally requested, I was pressed by the Tribunal, the Information Commissioner and the MoD to withdraw my appeal. After consulting my expert witnesses and others, I decided not to do that. That might seem a bit odd, but my reasoning was this. I was pleased that I had got the information, but the person against whom I was appealing – the Information Commissioner – had not been made accountable for his decision to endorse the MoD’s secrecy - a decision which looked even more questionable given the MoD decision to release all the information. In fact the Commissioner had said very little in his defence, and had even suggested that he would absent himself from an oral hearing. So I opted to pursue the appeal in order to try and hold the Commisioner to account for a bad decision. Not surprisingly, this was fiercely opposed by the Commissioner and the MoD, and roundly rejected by the Tribunal. As a result my appeal was struck out on 2 December 2010.
So what do I conclude from this experience? Though I won, in some sense at least, it was not a pleasant experience. I wouldn’t recommend it for others, particularly if they like life. It was too daunting, too intimidating, too scary. It’s difficult for me to compare it directly with the appeal system in Scotland, because I haven’t appealed against a decision by the SIO to the Court of Session. Nor would I, I think, because I’m guessing that would be just as scary, at least as expensive and probably more daunting than an appeal to the Information Tribunal. Importantly, I’ve not had any need to appeal in Scotland, because I’ve not been presented with a decision from the Commissioner which I found wholly unreasonable.
And that’s really the nub of the matter, the key to the question of whether we should introduce a new layer of appeal in Scotland. I would suggest not. Put bluntly, the only point in having an additional layer of appeal is if you don’t have confidence in the Information Commissioner to make genuinely independent decisions in the public interest. In the UK, from my experience, that may be a concern, so a Tribunal has had its uses. In Scotland, where I think we’ve had a Commissioner who has demonstrated his independence, I don’t think an extra layer of appeal is justified.
That of course begs one crucial question. What happens if the next Scottish Information Commissioner, for whom I see the Scottish Parliament is now advertising, is a government patsy? What happens if the Parliament next year chooses an ex-civil servant inclined to official secrecy, or a lazy ex-MSP, or just someone who doesn’t really care about freedom of information? Then maybe you’ll find me first in the queue demanding a new layer of appeal in Scotland.