{"id":2208,"date":"2021-02-28T09:00:00","date_gmt":"2021-02-28T09:00:00","guid":{"rendered":"http:\/\/amazonnewsmedia.com\/articles\/?p=2208"},"modified":"2021-03-23T08:42:50","modified_gmt":"2021-03-23T08:42:50","slug":"informationcommissionersofficeinformationtheatre","status":"publish","type":"post","link":"http:\/\/amazonnewsmedia.com\/articles\/2021\/02\/28\/informationcommissionersofficeinformationtheatre\/","title":{"rendered":"The Information Commissioner’s Office – Information Theatre"},"content":{"rendered":"

\"ANM:<\/a>If the new paradigm of employability is \u201cusefulness from a distance\u201d, outgoing Information Commissioner Elizabeth Denham certainly satisfies element number two, as she ran the Information Commissioner’s Office from her home in Canada for six months in 2020..<\/span><\/p>\n

As to usefulness, the recent Open Democracy report, \u201cArt of Darkness <\/em><\/a>
How the government is undermining Freedom of Information<\/em>\u201d by Lucas Amin calls that into question, taking a long and wide view of funding cuts to the department as well as the sinister \u2018Cabinet Office\u2019 clearing house.<\/p>\n

The report assumes a 41% budget cut over the same decade that has seen a 46% increase in \u2018casework complaints\u2019. The result is that funding per complaint has decreased 60% to \u00a3589. (p.30). This is scarcely enough for one terse letter from a London lawyer, but a lot of people apparently don\u2019t even get that.
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Stonewalling<\/strong><\/h2>\n

The report indeed found:<\/p>\n

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\u201cevidence to suggest that the Clearing House\u2019s primary function is to monitor and obfuscate FOI requests submitted by journalists and campaigners that the Cabinet Office perceives as reputational risks<\/em>.\u201d (p.15)<\/p>\n<\/blockquote>\n

The lack of action on stonewalling was a major finding of the report leading, to a recommendation to:<\/p>\n

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\u201cIntroduce an administrative silence rule whereby a failure to respond to a request within the requisite time period is deemed to be a refusal and can be appealed in full to the ICO.\u201d<\/em><\/p>\n<\/blockquote>\n

This is where it comes a bit unstuck, because The Art of Darkness<\/em> report, running to 39 pages, does not mention vexatious exemptions at all, as shown here.
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\"ANM:<\/a><\/p>\n

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It’s true the report’s remit didn\u2019t stretch to legal action, but “Section 14 Vexatious\u2019” is just a category, like \u2018information not held\u2019, which is featured, shown below,  so ‘vexatious’ shouldn\u2019t be left out.
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\"ANM:<\/a><\/p>\n

The growing number of withheld requests (a 14% rise since 2010), seems to match the reduction in those granted (18% drop in the period), surely they can\u2019t all be \u2018stone-walling\u2019.  And even if they are, where does that leave Alan Dransfield, whose name garnishes thousands upon thousands of Section 14 (Vexatious) exemptions by public bodies, and who has been told that his communications will not even be read by the Information Commissioner’s Office going forward: i.e. relegation from a category not even mentioned in the Open Democracy report.<\/p>\n

How stone-walling is that?
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Conspicuous Omissions<\/h2>\n
\"ANM:<\/a>

Alan Dransfield – FOIA Campaigner and Social Watchdog.<\/p><\/div>\n

Dransfield became preceding commissioner Christopher Graham\u2019s \u2018vexatious\u2019 scape-goat when his request for information on lightning protection on the Exeter Rugby ground pedestrian bridge was refused under Section 14 (vexatious). Dransfield appealed and won<\/a>.<\/p>\n

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It must continually be re-stated, among all the obfuscation, that it was not Devon County Council that appealed the decision at the First Tier Tribunal, but the Information Commissioner\u2019s Office itself under Christopher Graham. The same transparent and accountable office that held the Devon CC\u2019s hand to overturn the appeal judgement, now stonewalls Dransfield, using the trail of destruction they reeked in the process as their justification.<\/p>\n

Never mind that Dransfield\u2019s public interest concerns proved entirely founded as the plans for the rugby bridge<\/a> had no lighting protection provision, or that it was quietly retro-fitted after the fact. His colourful manner and characterful insights, have been used to create prejudice in order to define and use him as a vexatious scape-goat, on up to 15,000 refusals of information, on subjects ranging from the Libya, (overturned eventually on appeal), Jimmy Savile, Julian Assange, and of course Covid.<\/p>\n

Not that you\u2019d know to look for any of this in the report, as it simply isn\u2019t covered even though Dransfield\u2019s name is implicitly woven through the statistics, which one might have thought would be relevant to dark arts, as well as to the recommendation to raise standards of compliance:<\/p>\n

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\u201cOpen a committee-led inquiry into the operation of the Clearing House, which comprehensively investigates whether its operation is GDPR-compliant, whether journalists are being monitored and\/or blacklisted, whether it undermines the applicant-blind principle of the Act, whether its operation leads to delays in the request process and whether its advice is legitimate.\u201d<\/em> (p.37)<\/p>\n<\/blockquote>\n

Interestingly although the report found ‘evidence<\/em>‘ of the clearing house being used to onitor and obfuscate requests from both journalists and campaigners, protection from this  \u2018monitoring and\/or blacklisting\u2019 is recommened only for journalists, presumably campaigners can look after themselves.<\/p>\n

They’ll have to won’t they. The lack of mention of vexatiousness in the report is a failing, not least in view of the veracity of Mr Dransfield\u2019s claims. It\u2019s also rather an odd omission by its completeness, especially given the sexy \u2018Art of Darkness<\/em>\u2019 title which seems to promise \u2018the depths<\/em>\u2019.
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Very Informal Resolution<\/h2>\n

The ICO\u2019s \u201crelatively fast and cheap\u201d informal resolution on a \u201csubstantial part of its workload<\/em>” is achieved by not producing detailed records apparently, leading Amin to conclude \u201cthe data does not exist<\/em>\u201d. (p.16)<\/p>\n

This claim seems far-fetched and under questioned given how mediating lawyers love clean copies, but at least the same answer can be given to FOI requests on Non Disclosure Agreements (NDA\u2019s).<\/p>\n

The lack of such documentation adds to the quasi transparent soup out of FOI, making it harder to identify offending authorities and to correct them, and leaving the system, as the report suggests, \u2018open to abuse<\/em>\u2019.
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Re-inventing the Wheel<\/h2>\n

For example in early 2020 the First-Tier Tribunal, together with the Information Commissioner’s Office, began a very hands on exploration of Lady Arden\u2019s 2015 definition of vexatious as \u201ca question entirely without merit either to the questioner or to the public<\/em>\u201d. In the wake of the first global Covid-19 lockdown in March 2020, with wall to wall global fear porn, it must have seemeed only logical to spend time, money and media minutes questioning the free flow of information based on national boundaries.<\/p>\n

The ‘territoriality’ affair was started by a Tribunal Registrar, Rebecca Worth who, perhaps having a touch of the vapours, suddenly \u2018issued a series of stays on FOIA appeals from overseas<\/em>\u2019, according to Computer Weekly<\/a>. (These were requests for information that had already been refused by the public body recipients, now being re-questioned, again from outside the UK.)<\/p>\n

The vaporous misgivings were then upheld on Appeal by ex-Foreign and Commonwealth Office legal operations lawyer, Judge Moira Macmillan.<\/p>\n

Cue flurries of expensive public legal activity to explore the issue with high profile Barristers from not one but two prominent chambers\u2026. and the answer, announced at the end of 2020 around the same time as the \u201cArt of Darkness<\/em>\u201d report was published, was a self-congratulatory reassurance that the FOIA is indeed \u2018applicant blind<\/em>\u2019, which Computer Weekly referred to as a “Victory for free speech and openness\u201d<\/a> . This marvellous verict was judged by UT Judge Mark O\u2019Connor and, guess who, Judge Moria Macmillan.<\/p>\n

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\u201cThere is no provision in the Freedom of Information Act for the tribunal to develop access rules to say who can make a request<\/em>, gushed 11KBW Barrister Harani Iyengar, \u201cThere is simply no starting point for the tribunal to do that.\u201d<\/em><\/p>\n

\u201cFOIA is concerned with how information should be put in the public domain, and not on the character of the person applying<\/em>\u201d, she also commented.<\/p>\n<\/blockquote>\n

If the irony of that statement doesn\u2019t raise a question about why all this was happening, perhaps Harani\u2019s statement that \u201cthe hearing was unusual because all the parties were taking the same view<\/em>\u201d might give you pause for thought.<\/p>\n

No? How about the fact that all this was to “test” something that
is clearly stated in paragraph 49 of the explanatory notes on the Freedom of Information Act itself? A quick search reveals the same principles also clearly stated in other, ICO public interest documents<\/a>.<\/p>\n

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\u201cThere is a public interest in promoting transparency about the UK government and public authorities, although requesters do not have to be UK nationals or residents.\u201d And \u201cThe public interest test is about what is in the best interests of society in general, and this includes citizens of other countries.<\/em>\u201d<\/p>\n<\/blockquote>\n

In fact it goes further:<\/p>\n

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“Arguments based on the requester\u2019s identity or motives are generally<\/strong> irrelevant.<\/em>\u201d (emphasis added)<\/p>\n<\/blockquote>\n

If this doesn\u2019t at least make you ask why such big globs of chocolatey sweet  lawyerliness needed to be spread over FOI, during the global events of the last year, perhaps you\u2019ve been eating a bit too much chocolate yourself.
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David and Goliath<\/h2>\n

\"ANM<\/a>With customary brashness and genuine strength, Dransfield insists he \u2018doesn\u2019t give a damn<\/em>\u2019, and only cares that each time his name is used in this fashion it is to deny other requesters their legal, civil and human rights. Given the state of information theatre, would any of this jiggery pokery be visible at all without his pithy resilience?<\/p>\n

Dransfield\u2019s scapegoating by the Information Commissioner\u2019s Office
to define what vexatiousness is, now invisibly drives further expedient redefinition of what it is not. This endeavour is helped by the burgeoning vocabularly coined by Judge Wikely including ‘smart’ words like \u201cholistic\u201d and \u201cprotean”<\/a> to help sort the vexatious from the stone-wallable.<\/p>\n

Vexatiousness doesn’t lie in requests, or even appeals to the Information Commissioner’s Office from overseas, silly, neither does it lie in pointless and wasteful legal action by judges and lawyers: of course not. What it comes down to is trust. If you trust the font, the layout, the stamps because they\u2019re \u2018official\u2019, you will never look further. Job done.<\/p>\n

Mouthy characterful upstart<\/a> o<\/a>rdinary common people, like engineer and boxing coach Alan Dransfield, with possibly more neck than many, always upset the nice veneer of propriety behind which unholy consensus otherwise all too easily rocks on. How can corruption be avoided when the mechanism for covering it up is portrayed and perceived first as scrutiny, and then as proof of transparency?<\/p>\n

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Likely Wikely<\/h2>\n

Exemptions to FOI are almost bound to increase, as they are already steadily doing, as the \u201cnew normal<\/em>\u201d sees danger in the most asinine of questions. Judge Wikely has effectively sealed that deal in his latest judgement of Dransfield<\/a>, by confirming that Human Rights under European Law don\u2019t count (para 31) as long as someone can make submissions in the first place. This was followed by the suggestion to seek judicial review, or visit the Health Service Ombudsman (PHSO), presumably all offered with a straight face and not in the least vexatiously.<\/p>\n

All this can only guarantee more bureaucracy, not open information, and the bottom line can’t take it already. These are lean times for government reputation management and it’s their own fault, but try telling them that.<\/p>\n

\"ANM:<\/a>It\u2019s not hard to see how Michael Gove\u2019s absolute power over FOI legislation as Lord chancellor to the Duchy of Lancaster, ergo Elizabeth II, compounds and perhaps explains much of the stirred sediment frothing around the clearing house kennels in the half light under the study of the Art of Darkness.<\/p>\n

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Home and Away<\/h2>\n

A<\/a> little information theatre was just the thing: a bit of a coo over Ms Denham\u2019s personal reputation, how wonderfully she\u2019d<\/em> managed running the Information Commissioner’s  Office  from abroad.<\/p>\n

Questioning the principle of territorality of information during a global pandemic was a nice PR opportunity for lawyers to wax lyrical about Parliament\u2019s intentions of openness, accountability and, yes \u2018requester blindness<\/em>\u2019 in passing FOIA in the first place.<\/p>\n

KBW lawyer Harini Iyengar\u2019s sacharine description of FOI requesters as \u2018mystery shoppers<\/em>\u2019 for the Commissioner, seems to reflect that fact that some little ICO elves were sent out for chocolate and spent over \u00a36,000 that the ICO is now investigating itself for: somebody was splashing the cash about something.<\/p>\n

\"ANM:6K on chocolates on solstice 2020? ” width=”300″ height=”125″><\/a>11KBW’s relationship with the Inforation Commissioner’s Office may be sweeter than ever, but prominent Human Rights chambers like Doughty St joining in with expensive liigation theatre to protect things that are very obviously already safe, is something you don\u2019t see very often apparently.<\/p>\n

And you really never see them sticking up for ordinary people like Mr Dransfield, whose original FOI re lighting protection in Exeter (that was not safe), as with the campaigner\u2019s other requests for health and safety information, like his enquiries into Scottish PFI, have proved well founded and squarely in the public interest<\/a>.<\/p>\n

Fawning press coverage of Human Rights Lawyers out for a spin serves to position the ICO within a supposed transparent international new normal, with oh-so-timely global free-speech recommendations for journalists, if not for campaigners, as long as nobody mentions how vexatious it all is while gobbling the post-show choccies.<\/p>\n

The contradictions are as stark as the times we live in, because what Alan Dransfield\u2019s continued use and abuse as a “vexatious” scapegoat at home does<\/em> guarantee, is that when you or I go asking for verifiable facts about our health and safety in “the new normal”, we too can easily and quietly be told to fuck right off.<\/p>\n

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by Angel Garden <\/p>\n

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