Information

Egypt clamps down on well-known opposition figures

2013-03-31T18:43:49+00:00

Campaigners say arrests amount to the most serious crackdown on free speech since end of military dictatorship last summer

The TV satirist Bassem Youssef is among at least 20 well-known opposition figures detained last week by the Egyptian authorities in what campaigners say amounts to the most serious crackdown on free speech since the military dictatorship that ended last summer.

The crackdown started on Monday, when five leading activists were summoned for questioning by the prosecutor-general for allegedly inciting violence against the Muslim Brotherhood.Two of the most prominent were Alaa Abdel-Fattah and Mona Seif, siblings prominent during the 2011 uprising that toppled Hosni Mubarak. After no evidence emerged to support the initial charges, they were accused on Thursday of attacking the offices of a former prime minister – an incident that happened nearly a year ago.

Abdel-Fattah was previously imprisoned under the military regime that followed Mubarak's. As he arrived for questioning this week, he symbolically wore an all-white outfit similar to the one he was forced to wear during his jail term in 2011.

Elsewhere, former opposition MP Hamdy al-Fakhrany was charged with inciting violence in Mahalla, northern Egypt. Then on Friday evening, activists and lawyers protesting outside a police station in Alexandria were attacked, sexually harassed and detained by policemen, whose willingness to go after lawyers is a sign – observers say – that they once again feel untouchable as an institution.

Among those arrested was lawyer Mahinour el-Masry, a hero of the 2011 uprising. "For whoever doesn't know Mahinour al-Masry, she is one of Alexandria's bravest revolutionaries," said former MP Bassem Kamel.

In this week's most bizarre incident, four members of the 6 April protest movement were arrested after allegedly holding up women's underwear at a demonstration outside the interior minister's house in Cairo.

Patrick Kingsley

Bassem Youssef’s supporters protest as Egyptian satirist is detained - video

2013-03-31T18:17:22+00:00

Egyptians protests in Cairo as satirist Bassem Youssef turns himself in at the office of the prosecutor general on Sunday

Egypt's top prosecutor orders arrest of hit TV satirist

2013-03-31T10:21:26+00:00

Critics damn move against Bassem Youssef, Egypt's Jon Stewart, whose show, al-Bernameg, gets over 30 million viewers

The Middle East's most popular TV satirist has been issued with an arrest warrant and questioned by Egypt's top prosecutor for allegedly insulting Islam and the Egyptian president.

It is the latest in a series of arrests of opposition activists, lawyers and politicians this week – and according to Egypt's foremost human rights campaigner, it heralds the most serious affront to free speech since associates of Egypt's Muslim Brotherhood assumed power last year. "This is the crackdown," said Heba Morayef, director of Human Rights Watch (HRW) in Egypt.

Bassem Youssef, who is known as Egypt's Jon Stewart, rose to prominence after the country's 2011 uprising. His show has more than 30 million viewers across the Middle East and he has been sued several times by private individuals.

But this is the first time that the prosecutor general, Talaat Abdallah, has followed up one of the complaints with legal action – a symbolic gesture that suggests President Mohamed Morsi's Islamist-led regime is now prepared to take a more authoritarian stance against its critics.

Youssef's show, al-Bernameg, critiques both fundamentalist clerics and Morsi – whose face Youssef once controversially projected on to a pillow – and is seen as a triumph for free speech in the post-Mubarak era.

But that rosy view has been rocked by the prosecutor's intervention, the significance of which Youssef explained in an interview with the Guardian earlier this month, when he said: "You can't prevent people from suing us. The tipping point would be if these lawsuits are activated by the attorney general."

This weekend that moment arrived and it has been received furiously by the government's opponents.

"Pathetic efforts to smother dissent and intimidate media is a sign of a shaky regime and a bunker mentality," tweeted Mohamed ElBaradei, the leader of Egypt's main opposition coalition.

Youssef himself characteristically focused on the lighter side of his plight, arriving at court in a comically outsized version of a graduation hat worn by Morsi at a ceremony in Pakistan this month.

While inside, he said in tweets he later deleted: "Police officers and lawyers at the prosecutor-general's office want to be photographed with me, maybe this is why they ordered my arrest?"

Crowds massed outside the court chanted: "Bassem, Bassem" after he was released on bail of 15,500 Egyptian pounds (£1,500) after three hours of questioning.

But campaigners framed his situation in graver terms. "I would call this a crackdown," reiterated HRW's Morayef.

"I think it's targeted, it's planned, and obviously it comes after a couple of speeches by Morsi where he made very clear threats."

Last Sunday, Morsi gave a speech and published a series of tweets in which he promised to take necessary measures against opposition figures who incited what he called violence and rioting.

Youssef's arrest is doubly concerning for Egypt's disparate opposition because it comes just a day after nine opposition activists and four lawyers were arrested in Alexandria – and less than a week after Abdallah launched legal proceedings against five prominent activists (including the siblings Alaa Abdel-Fattah and Mona Seif) for inciting violence against the Muslim Brotherhood.

It has also raised the possibility of a wider censorship of the media. For several months, the prosecutor-general has summoned journalists for questioning on charges of criminal defamation. But no related legal proceedings have yet been set in motion, which is why this week's developments have so alarmed the opposition.

"This has been the first step, the Alaa and Mona case, and the Bassem Youssef case," said Morayef. "And that's why this is so serious."

Abdallah's actions also renewed concerns about Egypt's "Brotherhoodisation", a term used by critics of the regime to imply that the Muslim Brotherhood has used its influence to appoint its allies to administrative positions whose roles are intended to be politically neutral.

Abdallah himself has long been considered such a politicised appointment, after Morsi circumvented constitutional protocol to promote him in November.

Abdallah's decision to arrest the activists and Youssef adds to this impression, particularly as it immediately followed Morsi's speech last Sunday.

To further add to the mess, a judge this week ruled that Abdallah's appointment was illegal – but Abdallah refused to stand down.

Patrick Kingsley

Counterfeit electrical goods seized increases sixfold, FOI reveals

2013-03-30T13:00:21+00:00

The number of counterfeit electric goods seized in the UK has increase sixfold, a Freedom of Information request has revealed.

The Guardian report:

The UK has seen a sixfold increase in the number of counterfeit and potentially dangerous electrical goods seized in the past four years – fuelled by demand for “branded” designer headphones and gadgets such as hair straighteners.

Figures obtained by the Co-op from local councils and Border Force – the organisation charged with patrolling the UK’s borders – show that the value of counterfeit electrical goods seized has risen from £2.6m in 2009 to £15.7m in 2012.

During the same period budgets for trading standards – council departments responsible for identifying and prosecuting counterfeit sellers on a regional level – have been cut by 17.5% from £85m to just under £70m as part of a drive to cut costs.

You can read the full story here.

Edinburgh Council ruled to have breached freedom of information

2013-03-30T11:00:22+00:00

The Information Commissioner has criticised Edinburgh council for failing to reply to a Freedom of Information request in time.

The Scotsman report:

The City of Edinburgh Council has been heavily criticised for its lack of disclosure of information about a statutory repair scheme.

The council has been accused of overcharging hundreds of city residents for allegedly unnecessary building repair work and expending “a disproportionate amount” of the Information Commissioner’s resources by taking 16 months to release information that should have been disclosed within 20 working days, a report has said.

You can read the full story here.

Obama welcomes African leaders’ OGP plans

2013-03-30T01:00:16+00:00

So what our discussion has focused on is, number one, how do we continue to build on strong democracies; how do we continue to build on transparency and accountability. Because what we’ve learned over the last several decades is that when you’ve got good governance — when you have democracies that work, sound management of public funds, transparency and accountability to the citizens that put leaders in place — it turns out that that is not only good for the state and the functioning of government, it’s also good for economic development because it gives people confidence, it attracts business, it facilitates trade and commerce.

And all of these leaders have good stories to tell on that. They recognize that there’s still more work to be done, and so I’m very pleased that all of them are looking to move forward on the Open Government Partnership that we helped to organize through the United Nations several years ago, and that we are now seeing countries from all across the world sign up for — setting up international norms for accountability and transparency that can lead to good governance.

U.S. President Barack Obama was speaking in the Cabinet Room of the White House on March 28, 2013 after meeting with President Sall from Senegal, President Banda from Malawi, President Koroma from Sierra Leone, and Prime Minister Neves from Cape Verde.

Kraftwerk denied China visa over 1999 Free Tibet concert

2013-03-29T18:54:14+00:00

Past catches up with futuristic German electronic band after Beijing bans quartet over performance that never was

As pop stars go, they are pretty much as inoffensive as you can get, a bunch of German pensioners who practically invented electronica with their hypnotic loops and robotic antics.

But Kraftwerk have apparently fallen foul of the Chinese authorities, not for their lyrics or their dissolute ways (the most you could ever accuse them of is eccentricity) but for something they did more than 10 years ago. A case of the past catching up with the futurists.

According to reports in Beijing, the ministry of culture denied the German quartet a visa because they were scheduled to perform at a pro-Tibetan independence concert in 1999. In fact, Kraftwerk's performance at the Washington DC fundraiser was ultimately cancelled because of a lightning storm.

The Beijing-based record label Modern Sky originally invited the German group to headline its three-day Strawberry music festival in late April before China's ministry of culture denied their application. "Kraftwerk were not allowed to play … because they participated in a Free Tibet concert," an unnamed Modern Sky employee told Agence France-Presse. "We had already arranged the show, it's a pity they can't come, it's a great shame."

The festival has replaced Kraftwerk with the British pop band Travis. "I can't say we are 100% confident with Travis as headliners," Zang Keyu, Modern Sky's director of performance and operations, told the state-run Global Times newspaper. "But it's a fact we have to accept."

Kraftwerk thus become the latest victims of Beijing's rigorous control of who does and does not come to entertain its youth. After turning up their noses for decades at western rock for much of the 1980s and 1990s, China's authorities have come to view large-scale, multi-day festivals as a useful exercise in generating both popularity and cash.

But for even the most enlightened officials, so-called social stability remains a top priority. In 2008, Björk was banned from the country after repeatedly shouting "Tibet" during a song called Declare Independence. And after Elton John dedicated a Beijing concert to the dissident artist Ai Weiwei in November, China's cultural authorities bulked up restrictions on foreign artists.

At a 2011 folk festival in the city Suzhou, a large projection behind the stage displayed short messages sent by audience members – until Ai Weiwei's name flashed across the screen. That year's Strawberry festival was immediately cancelled and Zuoxiao Zuzhou, a rock musician who ostensibly sent the message, was briefly detained.

Kraftwerk's rejection underscores Tibet's special standing in the eyes of Chinese cultural apparatchiks. In March, the band Gang of Four, named after a cultural revolution-era political faction, toured through the country without a hitch.

John Lydon, who shot to fame as Johnny Rotten of the Sex Pistols, will play at a Beijing club on Saturday night. "The Chinese government has analysed my lyrics, and are fully aware of how I'm coming to China, and what I stand for, and gave me a pass with flying colours," he told the Smart Beijing online magazine. "This is a good thing for China."

The post-rock instrumental ensemble Godspeed You! Black Emperor is scheduled to perform at a marquee Beijing club next month, despite their subversive politics. "In our day-to-days, we're all witnesses to the demeaning outcomes of debauched governance," they told the Guardian last autumn.

"I read that [concert organisers] were having trouble bringing Godspeed over – not because of that, but because they have God in their name," said Liz Tung, music editor of Time Out Beijing. "And that goes to show how careless and arbitrary they are about who they're going to flag, and who they're going to let in."

She added that while cultural authorities might draw the line at Tibet associations, they rarely devote extensive energy to researching foreign acts. "I think kids get disappointed when acts are cancelled, but they're also used to it," she said. "They're used to shows being censored, movies being censored, they're used to things being pulled at the last minute for stupid reasons."

Banned bands

Lady Gaga was forced to cancel a sold-out show in Indonesia in 2012 after Islamic conservatives protested, saying that her sexy clothes and dance moves would corrupt the country's youth.

Julio Iglesias was among more unlikely acts including the Sex Pistols and Kiss to be banned from Soviet airwaves in the mid-80s.

BBC radio has enjoyed a long history of banning songs, including the Sex Pistols' God Save the Queen and Frankie Goes To Hollywood's Relax, as well the equally saucy 1930s classic The Window Cleaner, more commonly known as When I'm Cleaning Windows, by George Formby.

Acts from Billie Holiday to the Dixie Chicks have seen their music banned by radio stations. After criticising George W Bush on stage in London, the latter were defended at a Senate commerce committee briefing by future presidential candidate John McCain.

In the 1980s Tipper Gore's Parents Music Resource Centre attemped to ban an instrumental Frank Zappa album after he likened the advocacy group's agenda to a "sinister kind of toilet training programme to house-break all composers".

Singer Thomas Mapfumo moved to the US after his music was banned by Robert Mugabe's government. "Every piece of music that is critical of the government is not allowed to be played on the radio," he has said.

Jonathan Kaiman

Court upholds newspapers' right to name councillor drunk with infant

2013-03-29T18:09:20+00:00

Court denies motion for Tess Gandy to remain anonymous after agreeing with press there is clear public interest to story

Tess Gandy, a local Labour politician fined £100 by magistrates after admitting being drunk in a supermarket while in charge of her two-year-old daughter has lost a court battle to remain anonymous.

Gandy, 35, who was a Labour district councillor in Lowestoft, Suffolk, wanted an order that would have prevented the little girl – and her – being identified in media reports about the case.

But two senior judges have ruled against Gandy, who had previously been cautioned for a similar offence, after newspapers the Eastern Daily Press and the Lowestoft Journal argued that principles of freedom of speech and open justice should prevail.

Judges said the public had an "undeniable" interest in learning how Gandy, who has now resigned from Waveney district council, had behaved and of details given to magistrates in Lowestoft at a hearing in May 2012.

They described Gandy's arguments that the little girl might suffer distress if the case was fully reported as highly speculative and doubtful.

"The Eastern Daily Press and the Lowestoft Journal seem to me to have a powerful case indeed," said Mr Justice Kenneth Parker, who analysed legal argument with Lord Justice Pitchford, at a high court hearing in London.

"The criminal conviction itself, although it attracted a relatively low penalty, was far from trivial. To be drunk in public in charge of a small child of two-and-a-half years of age raises very considerable concerns regarding the general welfare of the child, especially when a caution had been administered not long before for the same offence.

"Moreover, [Gandy] was an elected councillor, and her conduct in public had twice fallen well below the standard that could reasonably be expected of an elected official by her constituents and by the public generally, who had an undeniable legitimate interest in learning, through media publication, of how [she] had behaved."

Nigel Pickover, editor-in-chief of the Eastern Daily Press, said: "At a time when some politicians are trying to bring in controls on Britain's press by statute, it is gratifying to see [the high court] protect our right to report a court case which contains important information in the public interest."

Sarah Branthwaite, a solicitor at law firm Foot Anstey, which advised the newspaper, added: "This was a matter of utmost public interest and the Eastern Daily Press took a principled stand."

Gandy told the Eastern Daily Press that she had been suffering severe postnatal depression and added: "I deeply regret the incident last year as I let myself, my family, my party and my constituents down."

A Labour party spokesman said: "We accepted Tess Gandy's formal offer to resign as a Waveney district councillor as soon as she made it, believing it to be in her best interests and the best interests of her constituents."

Matthew Taylor

South-South Initiative to establish Access to Justice and Green Tribunal in Madagascar

2013-03-29T17:48:56+00:00

From March 20-23, 2013, Ritwick Dutta of LIFE/Access Initiative India visited Madagascar, in response to an invitation from DELC/Access Initiative Madagascar. The trip and program were supported by GIZ, the German Cooperation through its Civil Society Organizations Program. The objective of the visit was to share India’s experience on Green Tribunal, drawing lessons for Madagascar in its earlier process to establish a Green Tribunal.

FOI round-up week ending 29th March

2013-03-29T14:11:23+00:00

Confidential discussions continue

2013-03-28T18:12:00+00:00

It is evident that confidential discussions are underway between a range of interested parties, all of whom have conflicting views on the proposals for a new legislative framework for European data protection. Indeed, there are so many different sets of confidential discussions going on that barely anything interesting about them is being reported.

People are obviously so busy mulling over this stuff that there’s no time for them to write about what they are up to.

So, I thought I might add something new to the mix.

I have deliberately refrained from reporting any personally identifiable information to deter fellow bloggers or journalists from contacting relevant participants with a view to publishing articles on this development themselves.

An extremely useful meeting took place in a restaurant at the Royal Exchange in the City of London today. A very select group of diners discussed how best to improve the plight of beleaguered data protection officers, who were constantly striving to ensure that they still knew what they actually needed to know to do their job properly.

The discussion moved on to how companies who had little concept of compliance with data protection ~~mumbo jumbo~~ matters could better consider just what risk they ran.

A cunning plan was hatched.

This plan will see the light of day in the fullness of time, once the principal stakeholders complete their Easter breaks and return to work.

Who might be concerned at this development?

Certainly not people who are keen to promote high data protection standards.

Perhaps people who hope that their sloppy data protection standards will remain unnoticed for a few more years.

The best bit about the event was that almost no one mentioned “the draft Regulation”. And the person who mentioned “the draft Regulation” very quickly realised what they were doing, and changed the subject.

No. Today saw a group of Brits considering a British solution to a British data protection problem. The answer won’t have to wait for any co decision procedures between the European Parliament and the Council of Ministers. It can go ahead this year. Not next, nor the year after.

More news on precisely what cunning plan has been hatched to address the issue under discussion will emerge later.

Meanwhile, happy holidays.

Note:

If anyone fancies meeting for lunch towards the end of April for a confidential sharing of information about what everyone’s up to and what we think is likely to be achieved (Regulation-wise), please let me know and I’ll arrange something in the City.

Image credit:

http://jolamble.com/wp-content/uploads/2011/06/shh.jpg

Government and private firm to run shared services together

2013-03-28T16:49:00+00:00

A new centre that will help drive £600m out of the cost of government back office functions will be jointly run by the government and the a private firm

Webinar on Citizen Engagement on Law Making

2013-03-28T14:42:37+00:00

The Open Government Partnership Networking Mechanism is pleased to announce the next Webinar on Citizen Engagement on Law Making taking place on Thursday, April 25, 2013, 10:00 AM – 11:00 AM EST. We hope you can join us. Please see the details below.

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REGISTER for this webinar here:

https://docs.google.com/spreadsheet/viewform?formkey=dEhISkQ0MkhzN084TzNrbUZJTDJqc0E6MA

JOIN the Webinar here (login 5 minutes before the scheduled time): http://worldbankva.adobeconnect.com/ogpweb/

Date & Time

Thursday, April 25, 2013

10:00 AM – 11:00 AM EST | 11:00 AM – 12:00 PM Brazil | 2:00 PM – 3:00 PM Morocco (14:00 GMT)

Citizen Engagement on Law Making

That laws are made by the citizens who must live by them is a fundamental tenet of democracy. As noted in the recently launched Declaration on Parliamentary Openness, the right of citizens to participate in governance, including in lawmaking has been enshrined in international treaties and standards frameworks for democratic parliaments, as well as in many national constitutions. Through the Open Government Partnership, many government institutions have signaled a renewed commitment to engaging citizens in lawmaking and ensuring that laws enacted are reflective of citizens’ interests. While increased citizen engagement has potential to result in better laws that meet citizens’ needs, it may also invigorate citizens’ relationships with government and build confidence in democratic processes.

This webinar will explore online and offline approaches to enhancing citizen participation in lawmaking processes by both government institutions and civic organizations. It will also discuss lessons learned with respect to citizen engagement and prospects for increasing collaboration between government and civic groups to meet common goals.

Presented by
Andrew G. Mandelbaum, Senior Program Officer, National Democratic Institute (NDI)
Cristiano Ferri Faria, Manager, LEgislative e-Democracy Program, Brazilian House of Representatives

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The Open Government Partnership webinar series is an initiative of the OGP Networking Mechanism to encourage peer learning and knowledge sharing on critical open government issues among civil society, government, and private sector participants. It is hosted by the World Bank Institute

Section 12 and Records Management

2013-03-28T14:38:26+00:00

Sometimes I see a request and it looks massive. Often “can I please have all of the documents about x”.

The heart sinks. The answer is likely to be that the cost limits kick in. You send the FOI on to the relevant colleagues and ask them to assess how long it will take to locate, identify and retrieve. If the cost limits are breached, you tell them that they need to put together a sensible estimate of how long it would take to answer the question in its present form and to describe how the information is held and give name of files, just so the requestor, when s/he comes back with a narrowed request has the best chance to ask something that will result in a release of information.

So, you wait for colleagues to get back to you. And they do (to be fair, they’re usually overstretched and busy doing things like ensuring that vital services are running).

Because you have trained them beautifully, they give you something delightful like:

“There are 12 people in the team. We looked for emails with the following search terms and discovered there are 4,500 emails and documents. We then looked on the shared drive and a search showed that there are 250 documents. As sampling showed that the length averages 20 pages.

We think that it would take a minute per email (some of these contain attachments and some of the email trails are long) to read them and see if they are relevant. That is 4,500 mins.

We think that it would take 5 mins per document. That is 5minsx250docs=1250 mins.

This totals 96 hrs.”

They might even send me a lovely list of file names and dates so that the requestor can narrow that way. It all looks beautiful. I am all set to refuse under section 12.

Then I notice the end of the email that I have been sent:

“We archived a lot of stuff about this project, but we are not sure where the exact files went. We know that they were filed into boxes relating to the directorate that was reorganised about 3 years ago but when we called the archive, there are apparently about 80 box files that we would have to search through. We can’t even estimate how long this would take to go through because we have no idea what’s in them. The only person that knows anything about that directorate is Bob, as everyone else has moved jobs, but Bob says he never worked on this, so doesn’t know. He offered to call Beatrice, whom he is still mates with, and who retired as she might remember something. Please advise.”

There is no way Beatrice is going to be able to tell us anything useful. No one ever remembers where they put stuff. So I am left having to do a reply that points out the inadequacy of our records management, which is bad for us. Worse still, there is simply no way that if the relevant record is in one of those boxes, that anyone will ever be able to request it. S12 will always kick in.

They might as well destroy the records and stop paying the records archive company a fabulous amount of money every year for holding them.

This is not to say that I blame the records managers. I have sat next to one for a year and can see that they work really hard. But there is usually one of them in a vast organisation that will produce an unbelievable amount of paper. And no one listen to them.

So, why am I writing this now? Because with PCTs closing and an NHS reorganisation so big that “you can see it from space” (according to David Nicholson, formerly Chief Exec of the NHS and now Chief Exec of the NHS Commissioning Board), I might just FOI every CCG and CSU and DH and local authority public health team to ask the boxes in all of their archives are labelled and what they are called.

And the catch is that I bet that there is no spreadsheet or comprehensive central log and that my question will also be covered by section 12.

Food stamps and the database state…

2013-03-28T14:02:05+00:00

The latest proposal for ‘food stamps’ has aroused a good deal of anger. It’s a policy that is divisive, depressing and hideous in many ways – Suzanne Moore’s article in the Guardian is one of the many excellent pieces written about it. She hits at the heart of the problem: ‘Repeat after me: austerity removes autonomy’.

That’s particularly true in this case, and in more ways than even Suzanne Moore brings in. This new programme has even more possibilities to remove autonomy than previous attempts at controlling what ‘the poor’ can do with their money – because it takes food stamps into the digital age…

The idea, as I understand it, is that people will be issued with food ‘cards’, rather than old fashioned food stamps. The precise details of these cards have yet to emerge, and quite how ‘smart’ they will be has yet to be seen, but the direction is clear. The cards will only work in certain shops, and only allow the purchase of certain goods. At the moment they’re talking about stopping ‘the poor’ from buying such evil goods as tobacco and alcohol, but as Suzanne Moore points out, equivalent schemes in the US have blocked the purchase of fizzy drinks. In a digital world, the control over what can or cannot be purchased can be exact and ever-changing. It allows complete control – we can determine an ‘acceptable’ list of things that people can and cannot buy.

All well and good, so people might think. Let’s make sure people only eat fresh fruit and vegetables – improve the nation’s health, instil better eating habits, force people to learn to cook. All for the better! There are, however, one or two flaws in this plan.

Firstly, it seems almost certain that the plan will be effectively subcontracted out to private companies – and limited to specific shops. In Birmingham it has already been said that these cards will only work in ASDA. Doubtless there will be tendering process, and the different supermarkets will be vying for the opportunity to stake their claims. Once they do, which products will they be directing people to buy? The most nutritious ones? The cheapest ones? The most practical ones? Or the ones that will make them the most money?

Secondly, these cards present a built-in opportunity for profiling. Just as existing supermarket loyalty cards are used primarily to profile the people who use them, monitoring shopping habits in order (amongst other things) to find ways to convince people to spend more money, these kind of food cards can be used to profile the people who use them. This may not be any different from existing supermarket loyalty cards – but at least people have a choice as to which supermarket they use, and whether they want to be profiled. This kind of a system is effectively selling the profiles of people directly to the supermarkets, without any choice at all. Now of course privacy isn’t as important as food – but is it really right that we say that poor people aren’t allowed privacy?

Thirdly, a database will be built up of those who have the cards – and it will be a database that is crying out to be used. If those selling ‘pay-day loans’ with interest rates in the thousands get access to those databases they’ve got a beautiful set of potential targets to exploit – almost certainly complete with addresses included, just in case the people need a little ‘visit’ to chivvy them along in terms of payment.

There are further implications of this kind of thing – logical extensions to the idea. Once the system is introduced, it’s almost bound to be abused. If you have a ‘food card’ but need cash – for example to pay off a loan – then if someone else says ‘I’ll buy your card for cash, but at a 40% discount’, many, many people may accept that offer. The chances of a black market growing are huge, and the implications even worse. It would make the poor poorer (by whatever discount they’re forced to accept for their cards) for starters, but there’s more. If the authorities see this kind of abuse to the system happening, they’ll try to do something about it – for example, by requiring biometrics for verification. Fingerprints are even a possibility…

…which may seem far fetched, but school canteens around the country are already using fingerprint verification to allow children access to school meals. The technology is there – and those who make it and sell it will be lobbying the government to let them have contracts to do this.

That, again, makes the situation worse – making the databases even more invasive, even more open to abuse, and so the cycle begins again.

Of course this is only a side issue compared to the main issues of divisiveness, demonisation and sheer vindictive dehumanisation that are the inevitable consequences of this kind of scheme. I’m sure, however, that these possibilities won’t have escaped the eagle eyes of those working with these kinds of schemes. It may sound like a conspiracy theory – and indeed, to an extent it is – but it isn’t nearly as far fetched as might be imagined. As well as removing autonomy, austerity provides opportunities for those unscrupulous enough to use them – and sadly, as the last few years have made far too clear, there are plenty of people and companies like that.

Shelved redevelopment plan for Fleet town centre cost £100,000 FOI reveals

2013-03-28T14:00:56+00:00

A redevelopment plan for a town centre, which was shelved, cost more than £100,000 a Freedom of Information request has revealed.

Get Hampshire report:

A RECENTLY rejected new vision for Fleet town centre cost taxpayers more than £100,000, theNews & Mail can reveal.

A Freedom of Information request has revealed that between August 31 2009 and July 28 2010, Hart District Council spent £106,250 on the Fleet Vision.

The £9 million community and entertainment hub plan was shelved in February after Hart’s development partner concluded the overall cost of the scheme was too high to be viable in the current economic climate.

You can read the full story here.

Press freedom: a tug of war, not the end of 300 years of liberty | Michael White

2013-03-28T13:58:52+00:00

The battle over press regulation after the Leveson report is merely another tussle in a country addicted to a boisterous press

The chorus of mostly Tory editorial writers and columnists who have been denouncing any external constraint on their right to have a good time keep claiming that Britain is facing the end of "300 years of press freedom". Stirring stuff, but not true. Why should we believe their dire predictions for the future when they can't even be bothered to get the past right?

Since newspapers started appearing in this country in the early 17th century – the earliest surviving paper dates from 1621 – there has been a running war between the press, the politicians, the courts and their agents, and the police. Sometimes one side gets the upper hand, then another. But the battle over press regulation after the Leveson report is just that, another battle in a country unusually addicted to a boisterous press.

Not the first, but not the last either. In the 1920s and 30s press lords such as Harmsworth (Times), Beaverbrook (Express) and Rothermere (Mail) openly bullied elected governments, but also connived in self-censorship. Their British readers heard nothing of the Prince of Wales's affairs until a bishop broke the dam and he – by now Edward VIII – abdicated to marry his twice-divorced squeeze in December 1936.

Mrs Simpson's divorce in Ipswich ("King's Moll Divorced in Wolsey's Home Town", cried one US tabloid) was kept out of the papers too by collusion at the top. More importantly, so was much critical reporting of the Nazi regime in Berlin because it undermined PM Neville (1937-40) Chamberlain's doomed strategy to prevent war by appeasement. Chamberlain was a pioneering media manipulator who bullied editors, tried to get correspondents sacked and generally behaved as badly as the press lords do whenever they get the upper hand – as in the Murdoch era now ending.

Back in the 17th century all printers needed a state licence to publish news and then only news from abroad, which was (rightly) deemed safer. Inevitably there was an appetite to learn of the mounting struggles between Charles I and his parliament, filled by privately-circulated subscription sheets, what the Guardian's Andrew Sparrow (in his book, Obscure Scribblers) called "Stuart samizdat". Printers were duly prosecuted.

Nothing new there then. But the idea that the abolition of licensing in 1694 – six years after the liberal "glorious revolution" – settled the issue of press freedom until Lord Justice Leveson produced his recipe for tyranny doesn't hold water.

In his final 2004 edition of his Anatomy of Britain series (to fit the popular mood he called this edition Who Runs This Place?), the late Anthony Sampson noted that the one institution in battered, post-imperial Britain whose power had actually grown since he started writing was the media.

Yet even now British libel laws remain pretty fierce (that defamation reform may be a casualty of the current standoff is one evident irony). Censorship of the theatre, much of it absurd, by someone called the Lord Chamberlain survived until 1968, with the support of more reactionary newspapers, despite decades of protest for reform. D-notices (nowadays DA Notices) are still occasionally issued to protect state security. There is sometimes dispute over it. Life goes on, as does the press.

When king and parliament joined in civil war in 1641, the abolition of the hated star chamber court gave printers and would-be journalists the green light. It didn't last. John Milton's famous pamphlet, Areopagitica (1644) defending the freedom of conscience and speech against government censorship has been much invoked lately in newspapers generally unsympathetic to long-haired leftie poets on disability benefit. But as the Cromwell republic became less tolerant – surprise, surprise – Milton fell foul of his own government and its revived licensing habits.

And so it stayed. Charles II was personally tolerant (with his tabloid love life he had to be), but parliament insisted on repressing dissent via the 1662 Licensing Act. In 1680 MPs did agree to print the results of their votes – not the debates, let alone which way individual MPs voted.

The pro-Protestant revolution of 1688 asserted parliament's own freedom, but was only relatively liberal, a winning formula for stable oligarchy and growing prosperity, but with clear boundaries. They were challenged.

Catholics and dissenters still excluded from office until the 19th century (the throne to this day) and there was no mention of a free press, despite philosopher John Locke's eloquent attacks on the licensing laws which duly lapsed. Prosecution of troublemakers continued just as the spread of unlicensed newspapers continued – in defiance of the 1712 Stamp Act, which tried to keep them out of the hands of the unwashed British public by imposing a heavy 1p tax on every copy – at least doubling the price.

By the time stamp duty was abolished in 1855 against the widespread opposition of fearful MPs, it was 4p per copy, making an eight page paper cost 7p or a third of many a worker's daily wage. Publishers did not pass on all the profits generated by the tax's removal – another recurring theme – though it did allow the new Daily Telegraph (not so elitist as the Times had become) to build what would be the biggest selling daily until Harmsworth invented the mass circulation Daily Mail in 1896.

Long before then Anthony Trollope's Palliser novels (1865-80) had created in Quintus Slide of the People's Banner, a muck-raking, blackmailing rascal of an editor who would be easily recognisable as a species of red-top or blogging operator today. Modern rotary printing presses and the 19th century railway network to distribute copies made modern Fleet Street, just as technological innovation today – the internet and beyond – now threatens to be its undoing.

Despite repression the 18th century had nonetheless been a more glorious era for rumbustious journalism, not least in the growth and popularity of savage cartoons to entertain all classes at the expense of the government of the day. Robert Walpole, Britain's first de facto PM (1721-42) bribed a talented hack called Daniel Defoe (of Robinson Crusoe fame) to write supportive pieces that ostensibly opposed him. Prosecutions were routine.

If stamp duty (an advertising tax came later) was one weapon of the governing classes, a charge of seditious libel was another, regularly deployed against journalists and publishers for undermining the key pillars of authority – the crown, the king's government and religion.

As amazed foreigners noted – they still do – the London press, much of it technically illegal (no stamp), remained a running riot of sedition compared with autocracies governing most of Europe. The American colonists would soon entrench the right of free speech in their constitution. A free press was more important than a free government, declared Thomas Jefferson (though President Jefferson later changed his mind).

The greatest showdown of the century occurred in 1763, when the infant government of George III tried to prosecute everyone – it issued a "general warrant" – connected with publication of the 45th edition of the North Briton, which had been savaging Lord Bute's administration with high-level aristo-funding by opposition peers. The brains behind the paper was the radical and rake, John Wilkes who (just to complicate things) was MP for Middlesex at the time.

Convicted of seditious libel and outlawed, Wilkes was expelled as an MP, twice re-elected (shades of Tony Benn's battle to disclaim his peerage in the 1960s) and twice more expelled before he prevailed, winning important battles for liberty – not least the informal right to report parliament, previously harassed by officialdom.

The French revolution, attacks on religion and domestic radicalism prompted more repression, including the 1792 Libel Act, at least it gave those charged the benefit of jury trial. But in 1803 Speaker Abbott reserved a few places in the public gallery for reporters to report proceedings. Before he went on to better things, young Charles Dickens was a gallery reporter. The author of Sketches by Boz took with him a lifelong disdain for politicians, and John Stuart Mill – himself a liberal politician – enshrined his utilitarian right to express it.

The awkward fact is that, like great ages of politics – football or economic progress too – great phases of press reporting and opinion ebb and flow too. The scandal-rich Crimean war (1854-56) made the brilliant William Howard Russell of the Times the first modern war reporter, but decades of imperial military ineptitude made officialdom reach for repression again by the time the second world war broke out.

Heavily censored and patriotic war correspondency became the order of the day as the carnage continued. When the media helped break the American public's support for the Vietnam war in the 60s, a similar pattern of military control over reporters movements and copy would later reassert itself; in the Falklands (1982) and other operations up to the "embedded" era of Iraq (2003).

On the back of a German spy scare the Official Secrets Act of 1889 had already been beefed up (in a single afternoon) in 1911 to become a scourge of serious investigative journalism until modified in 1989 after decades of fights between Fleet Street and Westminster. A naval officer was convicted under it only last year.

Sometimes the press got it right, sometimes wrong, as in the 1962 John Vassall spy affair (1963) when two journalists were jailed for not revealing sources which (many suspected) did not exist. Fleet Street did not protest hard. But its excesses in reporting Vassall prompted fatal establishment complacency when the five-star Profumo sex scandal broke in 1963. It proved a Fleet Street's annus mirabilis and brought down the Macmillian government.

In The Abuse of Power, his unexpectedly candid memoirs (1978), James Margach, for decades a highly discreet political correspondent – latterly for the Sunday Times – described what he called "the war between Downing St and the media" since Lloyd George. Of four crises he identifies as ones where newspapers excesses "connived in effect at turning the press's own flank", Vassall was one.

The first of Margach's four came in the 30s, when Beaverbrook and Rothermere (of later Blackshirt sympathies) actually formed their own political party to try and overthrow Stanley Baldwin. "Power without responsibility, the prerogative of the harlot," was Baldwin's famous riposte – which any PM today could use if he/she had the guts. Tony Blair's "feral beasts" speech bravely picked on the Indy, the weakest in the pack.

Baldwin cowed the press lords then – in time for Chamberlain to bully them over Hitler – but their attacks on the Attlee government (1945-51) prompted Nye Bevan's "most prostituted press in the world" (though Beaverbrook provided him and his wife, Jenny Lee MP, with their country cottage, as he did Michael Foot) and the first of many Leveson-style inquiries. It led to the original Press Council.

Vassall was the third, and the fourth (there have been many since) was the Daily Mail's strident allegations of bribery and corruption at state-owned-and-flagging British Leyland in 1977, though (as with the "Zinoviev letter" election smear against Labour in 1924) the crucial document printed on page one was easily shown to be a forgery.

No government was strong enough to do much about it in the 70s, and when a strong one came along under Margaret Thatcher she adopted Lloyd George's maxim "square 'em or squash 'em". It was mostly squaring, though the Guardian was forced to hand over leaked defence documents which identified the leaker as Sarah Tisdall. It had lost a court battle to plead protection under the 1981 Contempt of Court Act – and faced the threat of recurring cash fines.

When a jury got its chance to pronounce on another civil service leaker, Clive Ponting in 1985 it acquitted him. As the Guardian found fighting the police and politicians in the 90s, juries can be good allies.

It is not that right is usually on one side or the other, or that the public interest – and the readers interests – are better protected in Whitehall or Fleet Street. Neither side has a monopoly of virtue. Fleet Street is right to protest that there is still much wrong with the cross-party proposals over Leveson, but wrong to say 300 years of press freedom are at stake. It just isn't true.

A system of self-regulation with a flick of external monitoring – not as tough as what the tabloids seek for the NHS this week – will just provide a new battleground with no permanent winner. The real threat to newspapers in 2013 is commercial viability in the internet age, not government censorship at a time when censorship looks ever more difficult in free societies.

Forget about Hacked Off's posturing. Just read Alan Rusbridger's account of Fleet Street's backstairs manoeuvres and note in passing that his predecessor, Peter Preston, regularly takes a different view on Leveson (and much else) in his Observer media column, as does Simon Jenkins in the Guardian, who calls Leveson mere revenge.

Not much pluralism visible in the choir of Tory pundits agreeing with their tax-efficient owner's view on Leveson. It is a U-turn on their initial positive response, except newspapers never do U-turns, only politicians do. The war goes on – as usual.

Michael White

You wait ages for an official report about the ICO’s data protection audit powers

2013-03-28T13:28:37+00:00

… and then two come along at once.

On 21st March 2013 the House of Commons Justice Committee published a report about the ICO (see our earlier post here), recommending, among other matters, that the ICO should be given the power to carry out compulsory data protection audits of NHS Trusts and local authorities. With uncanny speed, on 25th March 2013 the Ministry of Justice (MOJ) published a consultation document on the proposed extension of the ICO’s compulsory audit powers to cover NHS bodies. Despite the coincidence of timing, the MOJ’s proposal is not in fact a response to the Justice Committee’s report, but is prompted by a recommendation from the ICO itself.

The MOJ’s consultation document asserts that significant data protection compliance problems exist within the NHS. Over the last six calendar years (2007-2012) the ICO has received over 5,000 data protection complaints from individuals about the health sector: the only sectors that have generated more complaints over that period are lenders, local government, and general business. During the same period, the NHS self-reported over 500 data security breaches to the ICO. The MOJ document gives six examples of monetary penalty notices against NHS bodies, for amounts ranging between £60,000 and £325,000.

The ICO can already carry out consensual audits of NHS bodies; the MOJ document refers to a number of issues that have been highlighted as a result of these, including the use of unencrypted mobile media holding sensitive personal data. Most NHS consensual audits have come about as a result of referrals from the ICO’s Enforcement team, but of the NHS organisations referred for audit by Enforcement only 53% have agreed. This compares unfavourably to the 71% level of agreement for the public sector as a whole.

A compulsory audit can be initiated by the ICO serving an “assessment notice” under DPA section 41A. Where this power exists, data controllers can still agree to consensual audits; and according to the MOJ report, no assessment notices have yet been served, because 100% of data controllers covered by the existing scope of section 41A have agreed to an audit when asked to do so by the ICO. In other words, the mere existence of the power of compulsory audit has been enough to secure compliance, meaning that so far there has been no need for the ICO to use the power.

The MOJ’s proposal to extend the power of compulsory audit does not require primary legislation: it would be given effect by an order made by the Secretary of State under section 41A(2)(b) of the Data Protection Act 1998. All public authority data controllers in the NHS would be covered, throughout the UK. In other words, the proposal would cover all NHS bodies listed in Part III of Schedule 1 to the Freedom of Information Act 2000 (likely to be amended following NHS reforms in England), and all Health Service data controllers in Scotland listed in Part 4 of Schedule 1 to the Freedom of Information (Scotland) Act 2002. Note that the proposals will not cover private or third sector health bodies providing services to the NHS, though the MOJ document refers to the possibility of a further order to include these bodies at a later date.

The consultation will remain open until 17th May 2013.

Timothy Pitt-Payne QC

'NHS 111 causes chaos for desperate patients'

2013-03-28T13:06:00+00:00

The government has been warned not to sacrifice patient safety to satisfy political deadlines, days ahead of the England-wide NHS 111 launch

Index calls on Bahrain government to free Nabeel Rajab

2013-03-28T11:23:05+00:00

Nabeel Rajab, BCHR – winner of Bindmans Award for Advocacy at the Index Freedom of Expression Awards 2012

Index on Censorship has called upon the Bahraini government to release 2012 Index Freedom of Expression Award winner Nabeel Rajab and other prisoners of conscience, and honour its promises to uphold freedom of expression.

Index’s Chief Executive Kirsty Hughes said:

“The continued imprisonment of Nabeel Rajab and other activists shows that Bahrain is not serious about reform. The targeting of human rights activists and imprisonment of prisoners of conscience shows that government commitments to reform are for now meaningless.

“Index calls on the Bahrain government to respect the right to peaceful protest and the right to free speech, to end its violations of these rights and to implement fully the recommendations of the Bahrain Independent Commission for Inquiry (BICI).”

According to the Project on Middle East Democracy, the government of Bahrain has only succeeded in fully implementing three of the 26 recommendations made by the Bahrain Independent Commission for Inquiry (BICI) report in November 2011.

Members of the Bahrain Centre for Human Rights (BCHR) have faced repression from Bahrain’s regime for their tireless work documenting human rights violations committed by the government, since popular protests began on 14 February 2011. According to BCHR, there have been 89 deaths since the start of the country’s uprising.

In March 2012, accepting the Index on Censorship Advocacy award on behalf of BCHR, human rights activist Nabeel Rajab said that the international community heard little about uprisings in Bahrain because “we have oil”. He is currently serving a two-year sentence for organising so-called “illegal gatherings”. The founder of BCHR, Abdulhadi Alkhawaja, is on hunger-strike to protest his ill-treatment in prison. Alkhawaja is currently serving a life sentence for allegedly plotting to overthrow the ruling regime. His daughter Zainab is also on hunger strike and serving a three-month jail sentence.

In April, international attention will once again turn to Bahrain when it hosts the Formula 1 Grand Prix. Last year, the Bahraini government attempted to use the race to gain positive international attention while continuing to clamp down on protesters who are critical of the regime.

The post Index calls on Bahrain government to free Nabeel Rajab appeared first on Index on Censorship.

FOI reveals effect of independent sector on Kent grammar schools

2013-03-28T11:00:34+00:00

The number of children who go to fee paying schools and have been given places at grammar schools in Kent has been revealed by a Freedom of Information request.

Kent Online report:

More than 400 children from dozens of fee-paying independent schools have been offered places at Kent grammar schools this year, according to figures obtained by KentOnline.

The figures are slightly below last year, but underline the continuing impact of the independent sector on the county’s selective system.

Just weeks ago, the county council revealed proposals to revamp the 11-plus test in an effort to make it less coachable and more “tutor proof”.

You can read the full story here.

Government is warned not to exclude offline people

2013-03-28T10:10:00+00:00

The government must not deny public services to those who cannot or will not go online, a spending watchdog has warned

Health regulator says NHS services should be subject to ‘freedom of information requirements’ on a ‘consistent basis’.

2013-03-28T10:00:37+00:00

A review of the NHS has said the Freedom of Information Act should be applied consistently to all services provided by the NHS, including private companies who are using public money.

GP Magazine report:

The review makes 30 recommendations including making all providers of NHS services subject to ‘freedom of information requirements’ on a ‘consistent basis’.

It said the government should ‘rapidly extend access to the NHS pension scheme’ for all staff moving from a public provider to other NHS-funded ‘clinical’ providers. VAT refunds should also be applied to some charitable NHS-funded health care providers, the report recommended.

Health minister Lord Howe said: ‘We are committed to making sure that patients can access services delivered by the best possible providers.

You can read the full story here.

'Paedophile watch' Facebook group harmful, warn police

2013-03-27T16:52:00+00:00

A Facebook group that has reportedly published details on convicted paedophiles could be 'extremely harmful'

Rachel Robinson: ORGCon North

2013-03-27T16:06:00+00:00

(Audio/Video)

Giving a preview of her talk, Rachel Robinson goes through her view of The Snoopers' Charter she will go in depth in the ORGCon North. More previews to come.

Join us at ORGCon North 2013!

Private NHS Providers and FOI

2013-03-27T14:35:43+00:00

Monitor have recommended that FOI requirements should apply to private providers of NHS services. I’m not sure we should be too optimistic that much will ensue.

Regardless of one’s views of the Health and Social Care Act 2012* it is important that, if “any willing provider” can be commissioned to provide private health services, there should be parity of treatment. And, indeed, the need to ensure a “Fair Playing Field” was, at least ostensibly, what led the Secretary of State for Health to ask Monitor (“the sector regulator of NHS-funded health care services”) to conduct

an independent review of matters that may be affecting the ability of different providers of NHS services to participate fully in improving patient care

That review has now finished, and was laid before Parliament by the Secretary of State yesterday.

My specific interest is in the section regarding transparency. Monitor note that

Historically, public providers have faced higher levels of scrutiny than other providers, including requests for information under the Freedom of Information Act. This degree of scrutiny can improve accountability to patients and promote good practice. Freedom of Information requirements have been extended through the standard NHS contract to private and charitable providers. However, it is not clear that this is operating effectively as yet, and other aspects of transparency do not apply across all types of provider

Accordingly

The Government and commissioners should ensure that transparency, including Freedom of Information requirements, is implemented across all types of provider of NHS services on a consistent basis

This could be read as a recommendation that the Freedom of Information Act 2000 (FOIA) be extended to all (including private) providers.

However, I am not sure we should be too optimistic that the recommendation will be read in this way by the Department of Health. The Justice Committee, in its recent post-legislative scrutiny of FOIA, was unconvinced that FOIA needed to be extended to private providers of public services, feeling that the use of contractual terms to ensure transparency was sufficient:

The evidence we have received suggests that the use of contractual terms to protect the right to access information is currently working relatively well…We believe that contracts provide a more practical basis for applying FOI to outsourced services than [extending FOIA to those private providers]

and rather unsurprisingly the government, in its response to the Justice Committee, agreed

The Government therefore does not intend, at this time, to legislate to extend FOIA obligations to contractors.

Given this, I suspect that, rather than taking up Monitor’s recommendation and extending FOIA to private healthcare providers, the government will merely reiterate the point about the use of contractual terms to promote transparency aims.

However, even if FOIA is not to be explicitly extended to include private contractual providers, there is a potential way forward which would achieve those transparency aims in a clearer and more enforceable way. This is the proposal by the Campaign for Freedom of Information, who observed (in light of the post-legislative scrutiny reports)

We don’t believe that relying on every authority to insert an appropriate clause into every contract one at a time is likely to be effective. The FOI Act itself should state that all such contracts are deemed to include a wide disclosure requirement, automatically bringing information about the contractor’s performance and the way the contractor goes about it within the Act’s scope

This seems eminently sensible. I wish eminently sensible things would happen more often than they do.

*I happen to think it’s an example of an ideologically-driven privatisation of public services which we will look back on in decades to come as a drastic mistake.

Lords mistaken in their calls for Ofcom Internet regulation

2013-03-27T14:30:00+00:00

(Blog) The Lords often make very helpful contributions to legislative debates, but this really isn't one of them. There are huge amounts of regulation constraining Internet providers, from eCommerce to copyright, that cover the necessary ground already.

'Police need social media intelligence hub'

2013-03-27T13:24:00+00:00

Police forces across the UK need to do more share social media intelligence, but civil liberties must be taken into account, says think-tank

British spooks team up with private firms to fight 'industrial scale' cyber threats

2013-03-27T12:48:00+00:00

MI5, GCHQ, the new National Crime Agency and industry analysts are to join forces in a new 'Fusion Cell'

The social media shaped hole in surveillance law

2013-03-27T12:18:05+00:00

Over the last decade there has been an increasing change in the nature of surveillance – particularly the ability to search online, through social networks and through semi-public sources of information, reinforcing the need for the law to be reformed to protect the public from unwarranted surveillance.

What needs to be made very clear is that just because information is on the internet, it does not necessarily follow that the police should collect and analyse it. It is essential that it the gathering of information is proportionate, necessary, balanced against the need of police to do their job, allows for a free and open internet and meets the public’s expectations of privacy.

Our recent report on the use of private investigators by public authorities highlighted how the Regulation of Investigatory Powers Act 2000 (RIPA) is in fundamental need of reform to protect against unauthorised surveillance; whether that be acquiring data through social media websites or the use of private investigators undertaking surveillance without appropriate supervision and authorisation. As the Joint Committee on the draft Communications Data Bill Warned, the “language of RIPA is out of date and should not be used as the basis on new legislation.”

A new report by the Centre for the Analysis of Social Media (CASM) has highlighted the difficulties of balancing between policing and expectations of online privacy. The report talks about social media intelligence (SOCMINT), the gathering of “powerful, recent and possibly decisive intelligence”, as being an inevitable part of modern policing; however there are clear questions regarding the legal basis for its use, which is currently unclear.

CASM sensibly conclude that “there needs to be an enabling ethical, legal and regulatory framework that allows the police to use social media with the confidence that what they are doing is legally permissible, protects the reputation of their organisation and ultimately commands public confidence.” This can certainly be achieved by creating a clear framework that is unambiguous, consistently applied across the country and with a strategy that links enabling legislation police practice, doctrine and procedure.

RIPA does provide the basic legal basis for SOCMINT, however it has to be understood that Facebook and Twitter (and most other social networks) did not exist when RIPA was created, and we have seen from other the Twitter trials that it is exceptionally hard to simply slot new technologies into existing legislation.

Due to the ambiguity and lack of clarity it is inevitable that public authority ‘official tweeters’ will occasionally find themselves in hot water. One example being 4 out of 45 officially accredited ‘tweeters’ at Northamptonshire police being stripped of their duties following concerns that their tweets might breach the Data Protection Act for both investigative and legal reasons.

Arguably, intrusive policies like this do not make the public safer or tackle the causes of crimes and gangs. However the way that information and criminal activity is taking place is changing, and as a result so must the ways in which we maintain law and order. However, at the forefront of these changes needs to be digital freedom and liberty reaffirming that RIPA is badly out of date and in need of fundamental reform before any further powers complicate the law further.

11KBW Information Law Conference, 18th April 2013

2013-03-27T09:55:04+00:00

11KBW is a leading set of barristers in Information Law with a wide range of expertise across all aspects of this complex and rapidly evolving area.

Chair
Timothy Pitt-Payne QC

Venue
The Royal College of Surgeons of England, 35-43 Lincoln Inn Fields, London WC2A 3PE

Topics include
The Crown Jewels? – Safe space, policy and the veto
FOI use and abuse – Costs, vexatious and repeated requests, and search obligations
Recent cases in FOIA/EIR
Going to penalties – MPNs, handling and reporting data breaches
Privacy, safeguarding and surveillance – (including T v Greater Manchester, and Southampton v ICO)
Social media and the law

We are delighted to have Richard Thomas the former Information Commissioner for the UK giving a keynote address at the conference.

An expert panel will be dicussing ” The future of data protection”.

Full Programme click here.

CPD
The conference will be credited 4.5 hours CPD - SRA/BSB

Cost
£99 + VAT (20%) = £118.80 to attend half day plus lunch
£150 + VAT (20%) = £180.00 to attend full day

How to Book
To book your place on this conference please email RSVP@11kbw.com with the delegate name, firm, email address and any purchase order details you may require. You will be then sent a confirmation email of your place and invoiced. We do not have the facilities to accept payments by credit or debit cards.

Local Government likely to follow NHS down the mandatory data protection audit road

2013-03-26T20:36:57+00:00

I am going to make a simple prediction; within 19 monthsÂ Local Authorities will be subject to compulsory data protection audit.

Why do I think that? Well IÂ think it is obvious if one reads the MoJâ??s consultation document that argues that the ICO should have the power to audit NHS data controllers on demand.

For instance, if you consider a â??complaintâ?? to the ICO as a possible data protection compliance issue, then the following Table shows that Local Government are the main offenders with respect to data protection failure. They are well ahead ofÂ NHS bodies which are likely to be subject to compulsoryÂ audit (when the consultation process is complete).

Â

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â (Click on picture for a larger image).

Secondly, with respect to data loss, Local Authorities,Â the table below shows that Local Government is second in the list of â??reportable data losersâ??.Â So, who is next in line if the ICO gets wider powers?

As an aside, note that 78% of all reportable data losses relate to either error in disclosure procedure, lost data or hardware and stolen data or hardware. So, procedures and counter-measures in this area should reduce three quarters of the data loss risk.

Finally, Local Government is blessed with a Secretary of State, Mr Pickles, who likes a good headline or two. Mandatory data protection audits for Local Government would reinforce hisÂ â??Protecting the tax-payer from careless town-hall bureaucratsâ?? image.

The only real question I think, is which type of organisation is after Local Government for a compulsory audit? Why not the Banks that we all own!

References

Consultation document widening the powers of audit to NHS bodies on:Â https://consult.justice.gov.uk/digital-communications/ico-assessment-notices

This document is to be discussed at our Data Protection Update session (April 18th; London) â?? details on http://www.amberhawk.com/uploads/Brochures/Amber_Update%2015%20April%202013.pdf

Drop the Dangerous Blogs Bill: leave blogs out of the Crime and Courts Bill

2013-03-26T17:52:00+00:00

(Audio/Video) New clauses are being rushed into law this week, that are trying to include websites in Lord Leveson's press regulation proposals. But by bringing in web news publishers, they are putting at risk the voice of many small news bloggers across the UK .

Don’t blame Leveson…

2013-03-26T17:44:09+00:00

There’s been a lot of anger around about the new regulatory system for the press, even before the details have really been sorted out. Some in the press are calling it the end of freedom of speech. Many are angry and worried about the impact on bloggers and tweeters. Quite a few magazines and newspapers are already saying they won’t join the new regulator, even before the form of that new regulator has been announced. Some are saying that the ‘exemplary damages’ system that accompanies the Royal Charter may breach human rights – and may be challenged in the European Court on that basis.

Some of this anger may be well placed – and some of the challenges may have validity. The situation for bloggers is far from clear, and every attempt that is made to clarify it seems to make it muddier – the latest being an exemption for ‘small blogs’, without a definition of what a ‘small’ blog is. Is this blog of mine small, for example? Would it be determined by number of hits? By average hits? By number of unique visitors? All of those figures can be misleading. I still remain unconvinced that even if bloggers are covered by this law that there is really much to worry about from it. We have much bigger concerns, such as the use of public order and other speech laws (as I’ve blogged about before) but I can understand why people are concerned and agree that we need clarity and properly written law, making the situation clear and giving appropriate protection for bloggers and tweeters.

What I am clear about, however, is that many people are trying to lay the blame for all of these problems (and directing their anger) at the wrong targets.

Leveson isn’t really to blame. It seems clear that he doesn’t understand the internet very well (particularly given what scant attention he gave it in his report) and he does seem to have somewhat authoritarian tendencies where the internet is concerned, as his first speech after his report suggested. However, he was just doing his job – and in the most part doing it pretty well.

Much though it goes against the grain to say it, the politicians aren’t really to blame either: they’re just doing what politicians do. They’re following what they perceive to be public opinion, and acting in the usual way. For even David Cameron to end up backing this kind of solution, given his connections with certain elements of the press, the political pressure must have been pretty strong, and not just from the opposition and the Lib Dems. Yes, they could have drafted their proposals better, and yes they could have been more carefully thought through, and given more time rather than being hastily agreed at 2.30 am in Ed Miliband’s offices, but that’s still not the fundamental problem.

Of course they all had their parts to play, and they all should take some of the blame – but not that much. The lion’s share of the blame lies with one group, and one group alone: the press themselves. None of this would have happened if the press had not behaved abysmally – and what has happened would have been much less oppressive if some of the key elements press had shown at least some sign of humility. Instead, what we’ve seen these last few days has reminded most people of exactly why the press need regulation – and why there’s such an appetite for press regulation. The death of Lucy Meadows, so viciously monstered by Richard Littlejohn in the Daily Mail, and the hideous way that they reported her death, maintaining their transphobia even as they reported her death, was the most horrendous example, but it was not unique. They way that the Daily Mirror put a picture of actor Colin Baker, next to a story about a Dr Who sex scandal with which he had no connection was another awful example.

For those of us who study regulation it is a familiar cycle. When people or groups push the limits of bad behaviour, that’s when regulators swing into action. They often end up ‘over-regulating’, using sledgehammers to crack nuts, but if the nuts didn’t need cracking in the first place they wouldn’t do it. In my specialist field, that of internet privacy, it has happened again and again. The ‘right to be forgotten’, an idea that has caused consternation in some circles, would never have been brought into action if it hadn’t been for Facebook making it so difficult for people to delete their accounts. The ‘cookies directive’, the piece of legislation that brought about all those annoying warnings when you visit websites, would never have happened if behavioural advertisers (and in particular Phorm) hadn’t invaded our privacy again and again and again.

In all these cases, the ‘offenders’ were asked nicely to change their ways – and didn’t. All they did was metaphorically laugh in the face of the potential regulators, assuming they were out of reach, or untouchable. Regulators react to that kind of thing – and there are repercussions. Often those repercussions fall upon innocent bystanders – such is the case now with the responsible press, and many bloggers, potentially suffering as a result of the overreach of the regulators.

So yes, you can blame the regulators if you want – but don’t forget why all this came about, and remember who’s really to blame. Not Lord Justice Leveson. Not Ed Miliband. Not even David Cameron. In the end, it is the press that have brought this upon us all.

Belarus: Media literacy vs propaganda

2013-03-26T17:05:43+00:00

In Belarus, little over half of the population accepts state propaganda as truth. Yanina Melnikava argues that the Belarusian state would like to keep it this way

State media in Belarus are widely considered to be a part of ideological machine of the ruling regime, but still they enjoy a high level of trust from the audience. The latest survey by the Independent Institute of Social, Economic and Political Studies (IISEPS) shows 55% of Belarusians trust state media, while only 39 per cent say they trust independent media.

The reason for that is a traditional perception of media in post-Soviet society: everything said in an “official” paper or on TV is considered to be trustworthy.

“Belarus has a post-Soviet society that is characterised by non-critical attitude towards everything,” says Ales Antsipenka, a Belarusian philosopher and a media expert. “A bearer of ideological dogmas is required to be loyal to the authorities and totally take for granted messages mainstream ‘official’ media deliver, transmitting only one point of view — that of the regime.”

The “vertical model of communication” remains very strong in Belarusian society, where “top-down” information flows from the authorities to the population. In this model, the authorities that stay on top of the “information pyramid” and broadcast ideas that are supposed to be accepted as universal truth.

“This model is sustained through budget subsidies to state media, through ideological choice of people who manage those media outlets, through censorship and creation of ideological filters between sources of information and audience. On the other hand, there are independent media that are allowed to practise a critical attitude to reality”, Antsipenka says.

Increasing media literacy for Belarusians would help to improve the situation. The basis for media literacy should be a possibility to question, to analyse news reports in media, and to differentiate between propaganda, censorship and manipulation technologies. In this case, the media audience should become a competent member of the media process. But the Belarusian state does not want this to happen.

“The authorities of the country, on the contrary, rely on decreasing of cultural and educational levels, and a low level of media literacy is one of the main conditions of ideological and propaganda work among population,” say Ales Antsipenka.

The question is whether Belarusian media themselves are interested in their audience being able to differentiate a quality journalistic product from a poor one. According to Aliaksandr Klaskouski, a well-known Belarusian journalist and media expert, it is the media that aim to bring quality reporting to the public that are most interested in better media literacy of the audience.

“It is more useful for tabloids or ‘barricade media’ to have an indiscriminate reader. That is why, unfortunately, not many media outlets in Belarus are really interested in increase of the media literacy level of the audience,” Klaskouski admits.

“But propaganda media outlets, both state and oppositional, should be left aside when we speak of journalism and mass media,” Eduard Melnikau, a professor of European Humanities University, argues. “Otherwise, every ‘real’ media outlet should be interested in its audience having a good level of media literacy, because an educated reader can increase the effectiveness of media themselves as they become partners and co-authors.”

This can only be achieved if the society understands how valuable quality journalism is. But this, in turn, is impossible without changing of the system of values — a process that can take years.

“It is quite easy to change public opinion; it does not take too long. But changing the system of values in society is a much more complicated and long process. If we speak of a quality journalism, it is a product that is needed by people whose set of values changed from old Soviet to a new, European ones,” says Ales Antsipenka.

At the same time, professor Melnikau is sure it is impossible just to wait for the rest of the society to change their values system.

“Media literacy is needed today, and it is needed to everybody, from politicians to street cleaners, because media is the instrument of pushing the society towards humanitarian values; without these values no developments of economy, science, culture are possible,” argues Eduard Melnikau.

But it is clear the Belarusian state is not interested in media literacy of its citizens, and the society itself does not value quality journalism. So, the question is who should take the responsibility for media education of the audience? The obvious answer is media outlets themselves. But nowadays many of them are quite marginalised or operate in semi-clandestine conditions, and rarely work effectively with their audiences. Non-governmental organisations often fail to work with the society as well, as many of them concentrate on holding on to their structures and actual “survival” in difficult authoritarian conditions.

Journalistic organisations such as the Belarusian Association of Journalists should be working in the field of media literacy. But the question is whether they will be allowed to access schoolchildren and students, who should become the main target audience for such programmes. The state holds the line of defence and substitute classes in media literacy with lessons in “political information”.

Yanina Melnikava is the editor of Mediakritika.by website from Belarus, dedicated to media analysis

The post Belarus: Media literacy vs propaganda appeared first on Index on Censorship.

Police to get cyber-bullying expertise

2013-03-26T16:28:00+00:00

Police will be better equipped to tackle online bullying after the government's law enforcement shake-up, says minister

Scots hand in more than £150,000 of lost cash to police, FOI reveals

2013-03-26T16:00:00+00:00

People in Scotland have handed in more than £150,000 of lost money to police a Freedom of Information request has revealed.

The Scotsman report:

OVER £50,000 of lost cash was handed in to Tayside Police by members of the public last year, according to new figures.

Freedom of Information requests reveal that over 6,000 people across Scotland handed money in to their local police station between October 2011 and October 2012.

You can read the full story here.

FOI reveals Richmond Council’s £286k mobile phone bill

2013-03-26T15:31:28+00:00

Mobile phones have cost Richmond Council more than £250,000 in the last year a Freedom of Information request has revealed.

Your Local Guardian report:

Richmond Council forked out more than £286,210 on phone bills in the past three years.

A Freedom of Information request by the Richmond and Twickenham Times revealed 945 staff at Richmond Council had a council=issued a Nokia, HTC or Samsung phone issued to them.

The bill for all the handsets totalled £97,668 in 2011-12, a decrease from £104,459 forked out by taxpayers in 2010/11, but a rise from the £84,083 bill in 2009/10.

You can read the full story here.

BBC suspends Sri Lankan broadcasts

2013-03-26T15:08:00+00:00

The BBC's World Service has suspended all its broadcasts on the Sri Lankan Broadcasting Corporation (SLBC) because of what its calls "continued interruption and interference" to the corporation's Tamil programming.

World Service director Peter Horrocks said: "We regret the disruption in service to our loyal audiences in Sri Lanka, but such targeted interference in our programmes is a serious breach of trust with those audiences, which the BBC cannot allow."

Evidently, there was inference to its FM relay programmes on 16-18 March and further disruption yesterday, 25 March.

Horrocks said: "We spoke to SLBC last week… and warned them they were in breach of their broadcasting agreement. Further disruption… has left the BBC with no alternative but to suspend the service with immediate effect.

"If the SLBC have specific complaints about any BBC output they should take them up with us, as we have invited them to do and not interfere directly with broadcasts in ways that are unacceptable to the BBC and misleading to our audiences."

The BBC took similar action in 2009 when its services were also disrupted. It is possible for audiences in Sri Lanka to listen to the BBC on shortwave and via the corporation's online services,

Source: BBC World Service

Roy Greenslade

A FOI practitioner's view of DPA/privacy

2013-03-26T13:02:24+00:00

Whenever I say that I know almost nothing about DP and anonymisation, work and FOI colleagues laugh this off. Of course, I know loads about section 40 of the FOIA and of course, I have done loads of cases where I have made judgements about release of data relating to individuals (whether remuneration of senior staff or, in an 'anonymised' form, healthcare stats). I have read the ICO guide on anonymisation. Studied for hours the Department of Health case where abortion stats for young people were requested, which ended up in court.

And that is what is significant. A few days ago I would have written "...anonymised form..." rather than what I have only just learnt (in this respect, I seem to be years behind everyone else) should be "...'anonymised' form...".

Although I have heard privacy experts rumble on about the horrors and dangers of releasing data without what looks like identifiers, I have never really understood what they were talking about - which is my fault - I should have read something to understand the basics.

Now that I have, my faith in anonymisation has been shaken.

I hope people do throw rotten cabbages and tomatoes at me - I should have learnt this a long time ago. But it seems to be a secret, at least, among my peers who practice FOI but also know little of DP and privacy: you cannot really anonymise personal data in a useful way.

The article that I read, that was referred to by Professor Douwe Korff, at a recent National Association of Data Protector Officers (NADPO) seminar was Paul Ohm's 'Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization'.

In this paper, which is available here, Ohm refers to data administrators and their faith in anonymisation. He then shows the dangers.

When I handled a FOI about abortion stats, colleagues from neighbouring organisations shuddered at the thought of releasing the data. I spent most of a month arguing with them but they had no arguments to give, as they seemed to know even less about it than me - they seemed to think that it would not be safe, but nothing more rooted in reason. At the end of the day, we did not release the data, but not for any good reason that I was aware of.

I am so glad that I followed the line of people that I did not really believe.

So, for you FOI practitioners out there, who routinely spend time managing the release of data, if you are anything like me, please read Ohm's paper and take, as I have done, the first few steps towards understanding the dangers.

FOI reveals Welsh council spends £640k on one school’s asbestos ‘crisis’

2013-03-26T13:00:46+00:00

Caerphilly Council has spend more than half a million pounds dealing (or not dealing) with asbestos at a single school, a Freedom of Information request has revealed.

The South Wales Argus report:

CAERPHILLY council will have spent at least £643,364 dealing with the issues of asbestos at Cwmcarn High School come the end of the school year.

This includes the costs of surveys, transporting pupils to alternative accommodation in Ebbw Vale and keeping the vacant school secure.

But nothing has yet been done to manage or remove asbestos at the site.

You can read the full story here.

Will bloggers be protected? Maybe – if your blog is “small”

2013-03-26T12:23:00+00:00

(Blog) We had a tactical victory yesterday: the Lords passed a government “holding amendment” to exclude ‘small blogs’ but didn’t decide what that might mean.

EU wants to cut 60bn off broadband costs

2013-03-26T12:11:00+00:00

New rules from Brussels could cut 60bn off the cost of delivering high speed broadband to people across EU countries

FOI reveals police called to Doncaster hospital 16 times a week

2013-03-26T12:10:19+00:00

South Yorkshire Police are being called to deal with incidents at Doncaster’s hospital 16 times a week, a Freedom of Information request has revealed.

The Star report:

POLICE are being sent to deal with incidents at Doncaster Royal Infirmary around 16 times a week according to Freedom of Information figures.

The statistics were disclosed by South Yorkshire Police after a suicidal man who pulled out a knife at the hospital’s accident and emergency unit when officers arrived to arrest him was given one ‘last chance’ by a judge.

Jason Holdgate, 20, was told by Judge Paul Watson QC at Sheffield Crown Court he needed help not prison as he sentenced him to a two-year community order.

You can read the full story here.

Doing BCS (ISEB) Courses? Top Tips from a Successful Candidate

2013-03-26T11:59:44+00:00

I have been asked to write a blog on what I had learned from recently taking – and thankfully passing – the ISEB/BCS courses in FOIA and DPA. Maybe I internalised the legislation too much, but for some reason I … Continue reading →

Can the Lords salvage something from the Justice and Security Bill?

2013-03-26T10:31:57+00:00

Today Andrew Tyrie MP and Anthony Peto QC have published their follow-up paper on the Justice and Security Bill for the Centre for Policy Studies. It makes for harrowing reading.

The Bill now heads back to the Lords today, where it started. The House of Lords voted for major amendments, introducing more discretion for judges and making the use of CMPs a last resort. The Government removed most of these amendments during Committee stage, in most cases by a single vote, despite repeated warnings that the Bill’s proposals constitute a radical departure from fundamental constitutional principles.

As Andrew Tyrie MP says: “The Lords did good repair work on the Bill, but the Government has undone much of it. The Lords now have a final chance to restore their original sensible amendments and further improve the Bill. I very much hope that they will do take it.”

The report makes nine recommendations for amendments, almost all of them supported by the Joint Committee on Human Rights (JCHR).

Closed Material Procedures (CMPs) should be a last resort
The Court, not the Secretary of State, should consider whether a claim for Public Interest immunity (PII) could have been made in relation to the sensitive material.
Even where a CMP is approved, the judge should be able to balance the interests of justice against those of national security in deciding if information should be disclosed.
Where CMPs are used, summaries of the national security sensitive information should be provided to the excluded party and his or her legal representatives.
There should be a periodic review of the legislation conducted by an independent reviewer.
The Bill should contain a periodic renewal clause.
The definition of “sensitive information” under the Norwich Pharmacal provisions should be amended.
The Chairman of the Intelligence and Security Committee should be elected, consistent with the proposals of the House of Commons Reform Committee (Wright Committee).

The report is absolutely right. A civil and open society cannot do justice in secret. If there is to be a bill, these safeguards are essential and we urge the Lords to restore them.

NHS 111 'putting patient safety at risk'

2013-03-26T10:31:00+00:00

Patients' lives could be put at risk if the government does not reconsider the rollout of its new non-emergency NHS 111 advice, warn doctors

Global view

2013-03-26T10:00:20+00:00

Index CEO Kirsty Hughes looks at the current climate for free speech around the world, from press regulation in the UK to ongoing challenges to digital freedom

In our increasingly digital times, freedom of expression may look like one of the positive beneficiaries of our ever more interconnected world. Countries like China or Iran build firewalls and employ small armies of censors and snoopers in determined attempts to keep their bit of the internet controlled and uncritical of their ruling elites. But with social media, blogs, citizen journalism, and ever greater amounts of news on a diverse and expanding range of sites, information is shared across borders and goes around censors with greater ease than ever before.

Yet online and off, free speech still needs defending from those in power who would like to control information, limit criticism or snoop widely across people and populations. And it would be a mistake to think the free speech attackers are only the obvious bad guys like China, Iran or North Korea.

While Putin’s Russia jails members of Pussy Riot, passes new laws to block websites and journalists continue to face risks of violent attack, it is Turkey, in 2013, that has more journalists in jail than even Iran or China. In 2004, the European Union assessed Turkey as democratic enough to be a candidate for EU membership. Today, Turkey’s government puts pressure on media companies and editors to rein in critical journalists and self-censorship is rife.

Meanwhile, in the UK, a fully paid-up member of the democracy club, the government and opposition argue over whether Parliament should regulate the print media (“statutory underpinning”, to use the jargon introduced by the Leveson Report into the phone-hacking scandal). On 18 March, the UK’s three main political parties agreed on a new press regulation system whereby an independent regulator would be set up by royal charter. And in this debate over media standards and regulation, the most basic principle, that politicians should not in any way control the press (given their interests in positive, uncritical press coverage), has been too easily abandoned by many. Yet the press faces big questions: what has happened to its standards, how can individuals fairly complain? Similar debates are under way in India, with corruption and the phenomenon of ‘“paid news” among concerns there. Falling standards provide easy targets for those who would control press freedom for other reasons.

Plenty of governments of all shades are showing themselves only too ready to compromise on civil liberties in the face of the large amounts of easily accessible data our digital world produces. Shining a light on requests for information — as Google and Twitter do in their respective transparency reports — is one vital part of the campaigns and democraticdebate needed if the internet is not to become a partially censored, and highly monitored, world.

Google’s recent update of its figures for requests for user data by law enforcement agencies shows the US way ahead of other countries — accounting for over a third of requests with 8,438 demands, with India coming in at 2,431 and the UK, Germany and France not so far behind India.

Both India and the UK have also used too widely drawn laws that criminalise “grossly offensive” comments, leading to the arrest and prosecution of individuals for innocuous social media comments. Public outcry and ensuing debate in both countries is one sign that people will stand up for free speech. But such laws must change.

A new digital revolution is coming, as millions more people move online via their mobiles. As smart phone prices fall, and take-up expands, the opportunities for free expression and accessto information across borders are set to grow. But unless we are all vigilant, whether we face democratic or authoritarian regimes, in demanding our right to that free expression, our digital world risks being a partially censored, monitored and fragmented one. This is the global free speech challenge of our times.

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

The post Global view appeared first on Index on Censorship.

Press regulation rules may exclude small-scale bloggers

2013-03-25T22:22:22+00:00

Ministers will try to close loopholes in crown and courts bill to allow for media with 'very different public expectations'

The government has moved to exclude small-scale bloggers from the threat of media regulation, and will hold a miniconsultation with the newspaper industry on how best to construct a workable definition of the bloggers that need to be protected.

Ministers concede that the definitions offered so far may have loopholes, and will attempt to put in place a clear watertight amendment after Easter when the crown and courts bill returns to the Commons.

Lord McNally, the justice minister, said the government's aim was to bring under the ambit of the regulator only the main elements of the press as well as what he defined as press-like activity online.

He said: "I have seen over the past week some concerns voiced regarding the extent to which bloggers and tweeters may be caught.

"Clearly, the online version of the national press or their regional counterparts, or indeed an online press-like news site, carry with them very different public expectations when compared with a small-scale blog or for that matter a tweet.

"Our definition of 'relevant publisher' seeks to make that differentiation and it does so by employing an interlocking series of tests, all of which must be met before the threshold of the definition is reached.

"This is first whether the publication publishes news-related material, second whether the publication is written by different authors, third whether it is to any extent subject to editorial control and fourth whether it is published in the course of a business."

He said Lord Justice Leveson had sought to distinguish between the grassroots small-scale activities of bloggers, and those activities that have developed over time into more sophisticated, multi-authored and news-related businesses.

He said the regulator was not intended to capture the news aggregation services of operations such as Yahoo or MSN. Nor is it intended to include social networking sites, or sites that merely moderate the comments of others.

He added that the culture secretary, Maria Miller, would ask her officials to engage with those interested on how the definition should operate.

The latest move came as the Telegraph executive director, Lord Black, used the debate on the crown and courts bill to lambast plans for exemplary damages against newspapers as a massive blow against investigatory journalism.

Lord Black urged the government to pause and think again, describing proposals to allow courts to impose exemplary damages on newspapers who have lost libel cases as "shotgun legislation" that will create "a constitutional nightmare".

He said it could not be right that the proposals, agreed "at breakneck speed", had been tacked on to the crime and courts bill without "any proper scrutiny". "They were cobbled together late at night over pizza with no thought for the legal and constitutional issues involved," he said.

Black said the exemplary damages clauses would almost certainly be contrary to European law and criticised "an unrepresentative lobby group of celebrities", a reference to the pressure group Hacked Off, which was involved in the talks between the Tories, Labour and Lib Dems that led to the controversial press deal last Monday morning.

"These amendments are wrong in principle and fundamentally flawed. They are almost certainly illegal and so will not endure. They deal with problems of an analogue past and are – in the words of the Guardian – 'illiterate about the internet'. They will either collapse or be struck down in Europe. They are a constitutional nightmare."

A second clause was also contrary to the principles of law, where costs are generally awarded against the loser, he said, claiming that publishers faced the prospect of having to bear the entire costs of a case even if they won.

His impassioned plea to the Lords to reconsider the amendments echoes the arguments expressed in a lengthy piece by the Guardian's editor-in-chief Alan Rusbridger in which he warned that exemplary damages for those who don't join the new regulator would be a "seriously bad idea that will create martyrs".

Lord McNally urged Lord Black "genuinely to pause, and say rather than to try to wreck this, could we not see whether we can make it work". He said it was regrettable that Lord Black in his speech made "no apology for the phone hacking on an industrial scale, or offer any recognition of the deep disgust of the general public which is reflected in the opinion polls we have seen".

He denied the proposals on exemplary damages were in breach of the European Convention, but acknowledged that "we are taking a trip into the unknown".

Peers agreed without votes the first tranche of Leveson amendments introduced last week in the Commons.

Patrick Wintour

Lisa O'Carroll

Around the world in 80 links: News from the parliamentary monitoring community

2013-03-25T18:47:43+00:00

Originally posted on on 22 March 2013 on OpeningParliament.org

During an OpeningParliament Google Hangout, Markus Schmidt discussed his study of the performance of the German, Swiss and Austrian parliaments against the Declaration on Parliamentary Openness. During the session, German PMOs began planning to conduct joint advocacy using the study and the Declaration to create a workplan that Bundestag staffers can follow to open parliamentary data.

In Mexico last week, it was announced that the government had signed a nearly $10 million contract to create an app to release legislative information. In response, Codeando México launched #App115, a contest to build the app for free through open source tools, offering a prize of just $1,000. After the outcry, the Mexican Congress canceled the expensive contract and organizations who lined up to support #App115, like Fundar, have been invited to present its results to the Congress’ Science and Technology Commission at the beginning of next month.

In the U.S., the Sunlight Foundation published its Open Legislative Data Report Card, an analysis of the openness of data in all 50 U.S. states. The report card analyzes states based on the completeness, timeliness, and permanence of government data along with ease of access and machine readability. Sunlight, a core partner in OpeningParliament.org, has recently expanded its focus to rededicate itself to international efforts.

In Pakistan, PILDAT has invoked Freedom of Information law and filed a complaint with the Ombudsman to require the National Assembly to provide comprehensive attendance information for all members. PILDAT believes that citizens must have this data to make informed decisions about which members to re-elect.

In Chile, a new monitoring program, Deeds Not Words, from Ciudadano Inteligente plans to track the space between the government’s promises and their legislative accomplishments to expose discrepancies between what is said and what is done.

In France, the website questionnezvoselus.org raised nearly 5,000€ from citizens to fund its launch. The website will allow for direct interaction between citizens and their elected representatives, and is put together by a consortium of local CSOs with the help of Parliament Watch in Germany. For more information on Parliament Watch, check out this recent interview with its founder, Gregor Hackmack.

In Spain, the Law of Transparency and Good Government has finally passed through to the committee stage. This is only after three groups, Access Info Europe, Fundación Ciudadana Civio and Qué Hacen los Diputados, came together to start a Twitter campaign called “Where is the Transparency Law?”

Also in Spain, Miguel Ángel Gonzalo, the Archivist-Librarian of Parliament, accumulated, organized, and analyzed over 500,000 parliamentary initiatives that have been undertaken since 1977. A summary of the findings and some interesting graphics can be found here.

In Ukraine, at the request of Opora, 66 MPs recently released the names of all of their paid personal staff. Opora also released its annual monitoring report detailing the legislative activity of the Verkhovna Rada.

In Afghanistan, the Free and Fair Elections Foundation has been releasing monthly and bi-yearly parliamentary monitoring reports. View the previous two reports here.

In Serbia, the media reported on work from Open Parliament showing the speaking activity of MPs, and revealing that three MPs have not spoken once during the current parliamentary cycle.

In Poland, quotas for women on electoral lists began in 2011. According to a recent blog from the PMO Association 61, while there have been more women running for office, few of them have actually been elected. The group analyzed the issue and questioned MPs to gauge the chances of a solution.

In Europe, Parltrack, which aggregates data relating to the European Parliament, raised more than 10,000€ through a Kickstarter campaign that will allow it to continue and improve on its operations. One organization that uses information from ParlTrack, Lobbyplag, works to track the influence of lobbyists on legislation being considered in the European Parliament. It is currently tracking the General Data Protection Regulation, which is riddled with amendments lifted directly from corporate lobbyists.

In Zimbabwe, Parliamentary Monitoring Trust has been using a Scribd document library to collect and make public bill texts, legislation, and committee briefings. They also use Scribd to release their weekly e-newsletter, of which the most recent issue discusses the March referendum and provides a list of common rationales for both “yes” and “no” votes.

Other related news:

In Taiwan, an open source parliamentary minutes reader has been developed to give citizens easy access to the activity taking place on the floor of parliament.

In Italy, the Senate recently launched an open data portal. The site is updated with government data daily, released in XML format using Akoma Ntoso standards.

The European Parliament launched an open source version of its amendment-authoring tool, AT4AM.

In Canada, the non-profit group Samara recently asked MPs, community leaders, and citizens how they would revitalize Canada’s Parliament and compiled the responses into several categories ranging from technological and procedural changes, to improvements meant to amplify citizens’ voices.

Ivan Krastev argues in a recent TED talk that we are witnessing a crisis of trust in democracy, citing some jarring statistics: 89% of Europeans believe there is a disconnect between policy makers and citizens. Transparency alone is not enough to stem that trust deficit, and efforts must be made to strengthen the links between citizens and their representatives.

In Kyrgyzstan, university professor and pundit Zakir Chota argued that the popular dissatisfaction with Parliament is due primarily to citizens’ poor understanding of the work of the body.

An article appeared in the Guardian last week detailing how transparency can break the cycle of poor governance in the developing world. The article explains that while open data can help ensure transparency and good governance, data sets must be credible, reliable, and traceable to a specific source to be as effective as possible.

According to Pirate Party MEP Christian Engstrom, the IT department of the European Parliament has been blocking constituent emails to MEPs regarding a resolution that would “ban all forms of pornography in media.” Engstrom has written on his blog in the past on issues of transparency, including more transparent voting in the European Parliament.

Resources:

The Inter-Parliamentary Union launched its Social Media Guidelines for Parliaments. (Related to this: in Australia there is an ongoing debate occurring over whether MPs should be allowed to tweet during question time of plenary sessions. The Speaker argues that it leads to inefficient debate while pro-Twitter MPs claim that tweeting during session is an important component of government transparency.)

John M. Carey, a professor of government at Dartmouth College, has argued that legislative transparency increases the effectiveness of MPs by making the threat of punishment for misdeeds more present.

Events:

The Guardian, in conjunction with Google and the Open Knowledge Foundation, is holding a competition for best government data visualizations. The rules are simple: take any government data set and turn it into a unique visualization that tells the story of that set in a new way. The contest closes on April 2.

Image credit: Hot air baloons by Eric Limm Photography via Flickr

A small scale catastrophe?

2013-03-25T17:50:44+00:00

We have highlighted that the current drafting of “relevant publisher” for the purposes of the Leveson law risks capturing blogs and organisations like Big Brother Watch in a system of regulation never intended for them.

The Government’s amendment to the Crime and Courts Bill exempts “a person who publishes a small-scale blog” from the definition of “relevant publisher” is an attempt to deal with growing concern, as demonstrated by the 20 person signatory letter in Saturday’s Guardian.

Sadly the amendment offers no definition of what is “small scale” or how it relates to an organisation who publishes the blog in question, so the compromise arguably makes the situation worse. The first time an organisation is sued as being a relevant publisher would have to fight in court to prove they are not – or risk facing exemplary damages. That could be a hefty legal bill and for small organisations a fight they might not be able to even consider, let alone see to the end.

While this is not to say that we are happy for large organisations to be regulated by the state – quite the opposite – we are deeply concerned that those who cannot afford the lawyers to fight the initial case of whether they are a “relevant publisher” would be caught up in the proposed system.

According to various sources the Government will use the coming weeks to consult with relevant people to move things forward. We hope they can find a way to produce legislation that doesn’t require people to risk bankruptcy to clear up poor Parliamentary drafting.

Should religious or cultural sensibilities ever limit free expression?

2013-03-25T12:55:21+00:00

Writer and broadcaster Kenan Malik and art historian and educator Nada Shabout on one of the art world’s most contentious debates

Mark Boardman/www.mark-boardman.com

Dear Nada,

I regard free speech as a fundamental good, the fullest extension of which is necessary for democratic life and for the development of other liberties. Others view speech as a luxury rather than as a necessity, or at least as merely one right among others, and not a particularly important one. Speech from this perspective needs to be restrained not as an exception but as the norm.

The answer to whether religious and cultural sensibilities should ever limit free expression depends upon which of these ways we think of free speech. For those, like me, who look upon free speech as a fundamental good, no degree of cultural or religious discomfort can be reason for censorship. There is no free speech without the ability to offendreligious and cultural sensibilities.

For those for whom free speech is more a luxury than a necessity, censorship is a vital tool in maintaining social peace and order. Perhaps the key argument made in defence of the idea of censorship to protect cultural and religious sensibilities is that speech must necessarily be less free in a plural society. In such a society, so the argument runs, we need to police public discourse about different cultures and beliefs both to minimise friction and to protect the dignity of individuals, particularly from minority communities. As the sociologist Tariq Modood has put it, “if people are to occupy the same political space without conflict, they mutually have to limit the extent to which they subject each others’ fundamental beliefs to criticism”.

I take the opposite view. It is precisely because we do live in a plural society that we need the fullest extension possible of free speech. In such societies it is both inevitable and important that people offend the sensibilities of others. Inevitable, because where different beliefs are deeply held, clashes are unavoidable. And they should be openly resolved, rather than suppressed in the name of “respect” or “tolerance”.

But more than this: the giving of offence is not just inevitable, but also important. Any kind of social change or social progress means offending some deeply-held sensibilities. Or to put it another way: “You can’t say that!” is all too often the response of those in power to having their power challenged. The notion that it is wrong to offend cultural or religious sensibilities suggests that certain beliefs are so important that they should be put beyond the possibility of being insulted or caricatured or even questioned. The importance of the principle of free speech is precisely that it provides a permanent challenge to the idea that some questions are beyond contention, and hence acts as a permanent challenge to authority. The right to “subject each others’ fundamental beliefs to criticism” is the bedrock of an open, diverse society, and the basis of promoting justice and liberties in such societies. Once we give up such a right we constrain our ability to challenge those in power, and therefore to challenge injustice.

The question we should ask ourselves, therefore, is not “should religious and cultural sensibilities ever limit free expression?” It is, rather, “should we ever allow religious and cultural sensibilities to limit our ability to challenge power and authority?”

Best wishes,

Kenan

Mark Boardman/www.mark-boardman.com

Dear Kenan,

I too regard free speech as a fundamental good and as necessary. On the surface, thus, the simple and direct answer to the question of whether religious and cultural sensibilities should ever limit free expression should be an unequivocal NO! However, the reality is that the question itself is problematic. While free expression, and let’s think of art in this specific case, will always push the limits and “reveal the hidden”, consideration and sensitivity, including religious and cultural sensibility, should not be inherently in opposition. By positioning it as such, the answer can only be reactive. I thus disagree with your argument.

A quick note on “censorship”. Yes, we all hate the word and find it very offensive. It is a word loaded with oppression, but the reality is that censorship in some form exists in every facet of life, personal and public. It is not that one needs to restrict speech in a plural society but that this plurality needs to find a peaceful way of co-existing with respect and acceptance, as much as possible — not tolerance; I personally abhor the word tolerance and find that it generally masks hatred and disdain. No belief is above criticism and nothing should limit our ability to challenge power and authority.

I suppose one needs to decide first the point of this criticism/free expression. Does it have a specific message or reason, and how best to deliver it — or is it simply someone’s personal free expression in the absolute? And if it is someone’s right to free expression, then why is it privileged above someone else’s right — religious and cultural sensibility being someone’s right to expression as well?

For example, and I will use art again, there is a problem when art/the artist is privileged as “genius”, with rights above other citizens — except not really, since the artist is subject to other limitations that may not be religious or cultural, like those of the tradition of expression, funding, law and so on. This is not to say that a religion should dictate expression. We should remember, though, that the marvel of what we call Islamic art was achieved within full respect of Islamic religious sensibilities, but also pushed the limits and critiqued simplicity in interpreting these sensibilities.

Perhaps my view here is less idealistic and more practical, but I see many unnecessary attacks on all sides that do not accomplish anything other than insult and inflame. All I’m saying is that expression is always achieved through negotiations, including limitations.

All the best,

Nada

Dear Nada,

I’m afraid that I was no clearer at the end of your letter than I was at the beginning about your actual stance on free speech. You say you ‘regard free speech as a fundamental good’ and that the answer to “whether religious and cultural sensibilities should ever limit free expression should be an unequivocal NO!” You then, however, go on seemingly to qualify that unequivocal stance but without actually specifying what it is that you wish to qualify. Where should the line be drawn when it comes to the issue of what is and is not legitimate free speech? Who should draw that line? And on what basis? These are the critical questions that need answering. You write: “It is not that one needs to restrict speech in a plural society but that this plurality needs to find a peaceful way of co-existing with respect and acceptance”. It’s a wonderful sentiment, but what does it actually mean in practice? Should Salman Rushdie not have written The Satanic Verses so that he could find “a peaceful way of coexisting with respect and acceptance”? Was the Birmingham Rep right to drop Gurpreet Kaur Bhatti’s play Behzti after protests from Sikhs? Should Jerry Springer: The Opera ever have been staged (or broadcast)?

You suggest that “one needs to decide first the point of this criticism/free expression. Does it have a specific message or reason, and how best to deliver it — or is it simply someone’s personal free expression in the absolute?” Again, I am unclear as to the point you’re making here. Are you suggesting here that speech is only legitimate if it has “a specific message or reason”? If so,who decides whether it does? During the controversy over The Satanic Verses, the philosopher Shabbir Akhtar distinguished between “sound historical criticism” and “scurrilously imaginative writing”, and insisted that Rushdie’s novel fell on the wrong side of the line. Do you agree with him? If not, why not? You ask: “If it is someone’s right to free expression, then why is it privileged above someone else’s right — religious and cultural sensibility being someone’s right to expression as well?” This seems to me a meaningless question. A “sensibility” is not a “right”, still less a “right to expression”. If your point is that all people, whatever their religious or cultural beliefs, should have the right to express those beliefs, then I agree with you. That is the core of my argument. What they do not have is the “right” to prevent anybody expressing their views because those views might offend their “sensibilities”.

A final point: to defend the right of X to speak as he or she wishes is not the same as defending the wisdom of X using speech in a particular fashion, still less the same as defending the content of his or her speech. Take, for instance, The Innocence of Muslims, the risibly crude and bigoted anti-Muslim video that provoked so much controversy and violence last year. I would defend the right of such a film to be made. But I would also question the wisdom of making it, and would strongly challenge the sentiments expressed in it. There is a distinction to be drawn, in other words, between the right to something and the wisdom of exercising that right in particular ways. It is a distinction that critics of free speech too often fail to understand.

Best,

Kenan

Dear Kenan,

Nicely said! I believe we are ultimately saying the same thing. It is that “distinction” that you outline in your last paragraph that I call a negotiation between all sides, cultures, etc. My answer is not clear because the issue is not simple! I am saying that it is not a black and white binary divide nor can one “draw a line”. And yes, “who should draw that line? and on what basis?” is critical and essential. I believe that should be reached through negotiation. The “wisdom” of something to exist is as important as its right to exist. But there is also the question of responsibility. Free speech cannot be “inherently good” or bad. The person who utters that speech must claim responsibility for its use and effects. The examples you cite above are not all equal. Yes, they all have the right to exist. But let’s think a bit about the Danish cartoons about the Prophet Mohammed as another example. Were they not an attack aimed to inflame Muslim communities? Was it not part of Islamophobia?

Was the aim not to ridicule and play off people’s fears and prejudices? How were they a critique of Islam? What was the point? It is not that “it is morally unacceptable to cause offence to other cultures” as you once said, but the how and why are just as important as the right to cause that offence. I agree with you that the fear of consequences has become a limitation, but that isperhaps because free speech has been abused.

Perhaps I am looking at this from a different point of view. As an educator, I often face the situation, equally here in the US and in the Middle East, of how to argue a point that has become of specific cultural/religious/political sensitivity to my students. If I offend them here, they will stop listening; in the Middle East, I will not be allowed to continue. What would I gain by doing that? By negotiation I test the limits and push gently. At least in academia, I think we are at a point where we have to teach our students to not get offended by an opposing opinion and to be able to accept various opinions and to be able to accept criticism. I don’t think I can achieve that through shock alone!

Best, Nada

Kenan Malik is a writer and broadcaster. His latest book is From Fatwa to Jihad: The Rushdie Affair and its Legacy (Atlantic Books)

Nada Shabout is associate professor of art education and art history at the University of North Texas and director of the Contemporary Arab and Muslim Cultural Studies Institute

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

The post Should religious or cultural sensibilities ever limit free expression? appeared first on Index on Censorship.

UK police want Skype users' data

2013-03-25T12:51:00+00:00

Law enforcement bodies in the UK made more requests for data on Skype users than anywhere else in the world

Jamie Bartlett: ORGCon North 2013

2013-03-25T12:14:00+00:00

(Audio/Video) Giving a preview of his talk, Jamie Bartlett goes through his view of the Communications Data Bill he will go in depth in the ORGCon North. More previews to come. Join us at ORGCon North 2013!

The Justice Committee and the Information Commissioner

2013-03-25T12:08:30+00:00

On 21^st March 2013 the House of Commons Justice Committee published a report (HC 962) on the functions, powers and resources of the Information Commissioner. It is essential reading for anyone interested in understanding the current role and future prospects of the Information Commissioner’s Office (ICO).

The Committee monitors the Ministry of Justice’s associated public bodies, and as part of this remit it maintains a close interest in the ICO. On 5th February 2013 the Committee held an oral evidence session with the Commissioner and his two deputies; it also received written evidence and supplementary information from the ICO. The report reflects this oral and written evidence.

The report begins by looking at the finances of the ICO in an era of public sector austerity. The ICO performs two separate areas of work, differently funded. Freedom of information (FOI) work is paid for by grant-in-aid from the Ministry of Justice, while data protection work is financed by the notification fee payable by data controllers under the Data Protection Act 1998 (DPA). The Commissioner is restricted in terms of “virement” – i.e. in general he cannot use DPA resources to fund FOI work, or vice versa.

As one would expect, freedom of information funding has been affected by the general pressures on public expenditure: the income for this work has been cut from £5.5 million in 2011-12 to £4.25 million in 2012-13, with the ICO planning for further cuts in 2013-14. Despite these cuts, the ICO has increased the amount of FOI casework completed, and reduced its backlog in this area. The Committee is impressed by the ICO’s success in this regard, while warning that further budget cuts would risk adversely affecting performance. The Committee suggests that the rules about virement should be relaxed.

The suggestion that DPA income might be used to subsidise FOI work seems a sensible one. There is considerable overlap – FOI cases about personal data are a very important source of DPA case law. However, it is disappointing that the Committee did not tackle more directly the question of whether FOI budget cuts make sense. An effective FOI regime is a weapon against waste and fraud, and can help keep public expenditure under control. The sums involved are modest, in the overall expenditure context – even the 2011-12 figure represents less than 10p per head of UK population. It is, at the very least, worth considering whether cutting FOI funding is a false economy.

At first sight the funding position for DPA work seems significantly better. The notification fee generates an annual income of some £15 million, over three times the FOI grant-in-aid. The problem is that the EU’s proposed Data Protection Regulation would abolish the notification fee, while at the same time imposing a wide range of additional functions on the ICO. The Committee suggests that the combined effect of these proposals would leave the ICO with a DPA funding shortfall of over £42 million. The position is made yet more difficult by the recommendations in the Leveson Report as to the future role of the ICO in relation to the press, which are a further source of potential demands on the ICO’s budget. The Committee suggests that the Government needs to find a way of retaining a fee-based self-financing system for ICO work, despite the current EU proposals.

Turning to the structure of the ICO, the Committee discusses the suggestion in the Leveson report that there should be an Information Commission led by a Board of Commissioners, rather than a single Information Commissioner. The Committee disagrees: it prefers the current model, with a single Commissioner taking personal accountability for the ICO’s work. The Committee also addresses the independence of the ICO. It recommends that the ICO should become directly responsible to and funded by Parliament, so as to guarantee its independence from the Executive. However, the Committee does not suggest that the ICO’s independence has in fact been compromised in the past by its institutional relationship with the Ministry of Justice.

As to the ICO’s statutory powers under the DPA, the Committee makes recommendations in two areas.

In relation to the criminal offence under DPA section 55, the Committee suggests that this should be made recordable – that is, convictions should be recorded on the Police National Computer and hence included in any future checks relating to the individual’s criminal record. The Committee also calls on the Government to bring into force section 77 of the Criminal Justice and Immigration Act 2008, so as to allow custodial sentences to be imposed for breach of DPA section 55. The Committee sets out – at §43 of its report – a list of other offences carrying custodial penalties for which those who breach DPA section 55 might be convicted: for instance, there is the offence of unauthorised access to computer material, under the Computer Misuse Act 1990. The Committee does not, however, regard the existence of these other offences as an adequate substitute for custodial penalties under DPA section 55.

In relation to the Commissioner’s audit powers, the Committee considers that as a general rule public sector organisations should accept an offer of a free DPA audit from the Commissioner. It recommends that the Commissioner’s power of compulsory audit under DPA section 41A should be extended to NHS Trusts and local authorities.

Timothy Pitt-Payne QC

Washington Post accused of censorship

2013-03-25T11:51:01+00:00

The Washington Post has been accused by a journalist of spiking a piece he was commissioned to write about the US media's failures in the run-up to the invasion of Iraq.

Greg Mitchell, a veteran journalist and author (see here), claims his assigned piece for the Post was killed and replaced by an article that defended the media's coverage.

Headlined "On Iraq, journalists didn't fail. They just didn't succeed", it was written by Paul Farhi.

If Mitchell is right, then the Post is guilty of censorship because his own submission attacked the media coverage. That should not have been too surprising to the Post's editors given that Mitchell's latest book, So wrong for so long, is a detailed critique of the failures of US press, including the Washington Post, over Iraq. So what did the Post expect?

Mitchell tears into Farhi's article as a "misleading, cherry-picking" piece "claiming the media did NOT fail." He writes:

"I love the line about the Post in March 2003 carrying some sceptical pieces just days before the war started: 'Perhaps it was too late by then. But this doesn't sound like failure.'"

You'll find Mitchell's original on his own blog here and also on The Nation website here.

Amazon reviews of Mitchell's book - which has a preface by Bruce Springsteen - are full of praise. "Read this book. Twice", writes former White House press secretary and TV commentator Bill Moyers. "Read it and weep; read it and get enraged; read it and make sure it doesn't happen again," says Arianna Huffington.

Sources: Greg Mitchell/Washington Post/The Nation/Wikipedia

Roy Greenslade

Privacy groups urge Baroness Ludford to support stronger data rights

2013-03-25T11:06:00+00:00

(Blog) In response to her letter to the Financial Times, ORG and Privacy International have written to Liberal Democrat MEP Baroness Sarah Ludford urging her to support stronger privacy rights in the upcoming and crucial LIBE Committee vote.

GCHQ launches multi-million pound cyber institute

2013-03-25T10:53:00+00:00

British intelligence agency GCHQ has launched a new academic research institute to help in the fight against cyber threats

Free speech takes a beating in Greece

2013-03-25T10:45:51+00:00

Christos Syllas looks at the threats to journalists and activists in crisis-stricken Greece, where a climate of terror prevails

Against a backdrop of heavy austerity measures in Greece, free speech and the right to protest are being both challenged and undermined. The policies are the result of agreements between the government and the so-called troika, made up of the European Commission, the International Monetary Fund and the European Central Bank. Since 2010, steps taken to restore fiscal balance have led to the impoverishment of large segments of society and unemployment has reached new highs: 26.8 per cent in October 2012. At the same time, the rise of the neo-Nazi party Golden Dawn, with an agenda of targeting immigrants, homosexuals and “dissidents” of all kinds, has created palpable social tensions. Police repress protests and political activity by a range of groups, including anarchists and leftists, a fact that has been widely documented. These tactics have been regarded by many as evidence that the government is adopting an authoritarian stance when it comes to criticism and dissent.

The current government, run by Prime Minister Antonis Samaras’s conservative New Democracy Party, took office in June 2012. In a report published in July 2012, Police Violence in Greece: Not just “Isolated Incidents”, Amnesty International stated:

The failure of the Greek authorities to effectively address violations of human rights by police has made victims of such violations reluctant to report them. … Between 2009 and the first months of 2012, numerous allegations have been received regarding excessive use of force, including the use of chemical irritants against peaceful or largely peaceful demonstrators, and the use of stun grenades in a manner that violates international standards.

In the report, Amnesty made “urgent recommendations to the Greek authorities”, urging them to ensure that police “exercise restraint and identify themselves clearly during demonstrations” and calling for them to improve “safeguards for those in custody and creating a truly independent and effective police complaints mechanism”. The mainstream media — owned mainly by business leaders seen as having a cosy relationship with politicians — have censored or fired journalists who have attempted to speak out about the costly bailout agreements with the troika.

Those who have reported on allegations of police brutality, such as Kostas Arvanitis and Marilena Katsimi of the Greek state-owned public radio and television broadcasting corporation ERT have also been targeted. On 9 October 2012, Thanos Dimadis, a correspondent for Greek TV and radio station SKAI, reported that bailout payments had been only “partial” and carried out “under a regime of strict economic surveillance”. Later that day, he received instructions from SKAI TV news director Christos Panagopoulos not to include that information in the afternoon and evening news reports. The text of his story was removed from SKAI TV’s website. Dimadis’s report was annoying for the government, which was keen to prevent details about the bailout from becoming public. Payments from the troika had been suspended since June, after a partial tranche was released. The authorities were worried that the public would believe that payments were conditional on even more stringent austerity measures. Dimadis complained to SKAI’s news directors, threatening to resign if they did not back up his report. He eventually quit.

Dimadis told me that senior management at SKAI argued that the reason they withdrew his report was that the prime minister’s office had dismissed it as false. Moreover, Dimadis’s reactionwas described by SKAI as “over the top”.

Censoring the news

The government’s modus operandi is best illustrated by the Kostas Vaxevanis case. Vaxevanis, an investigative journalist and publisher of Hot Doc magazine, was arrested on 28 October 2012 for publishing the names of over 2000 Greek citizens who held Swiss bank accounts, dubbed the “Lagarde list”. The story focused on alleged tax evasion by wealthy Greeks during a time of economic crisis.

“A few months ago, before the release of the ‘Lagarde list’ and my aggressive arrest, there was an organised attempt to destroy my professional reputation: a publication presenting a fake receipt attempted to incriminate me as being on the payroll of the National Intelligence Service (EYP). I realised I was under heavy surveillance and one night I was ambushed by strangers at my home,”Vaxevanis told me in an interview.

During our discussion, on 26 December 2012, Vaxevanis said free speech in Greece was coming under attack yet again: “It’s not something new. When you have ongoing dealings between politicians and businessmen who own media groups, then it comes as no surprise that journalists are driven to self-censorship. Take a look, for example, at the non-existent coverage of the Reuters story on the Piraeus Bank case. You have such a big story, but what you see in the newspapers instead is an advertisement by the bank.”

On 1 November, Vaxevanis was acquitted and cleared on changes of violating privacy laws. But two weeks later, the prosecutor’s office ordered a retrial, claiming the original verdict was “legally flawed”. He could face up to two years’ imprisonment if he is sentenced. In April 2012, Reuters reported on an investigation into documents, including financial statements and property records, relating to Michalis Sallas, executive chairman of Piraeus Bank, and his wife, Sophia Staikou. The press report said “the couple may also be emblematic of the lack of transparency and weak corporate governance that have fuelled Greece’s financial problems”.

But according to journalist Apostolis Fotiadis, no major national or international media outlet reported on the lawsuit filed by Piraeus Bank against Reuters, though the New York Times anda couple of independent journalists attended the trial, including Fotiadis. The ruling is still pending.

On 29 October 2012, a popular morning talk show on the Greek state broadcasting corporation, ERT, was suddenly suspended, following a decision by ERT’s general director of news, Aimilios Liatsos. Shortly before the show was dropped, Kostas Arvanitis, co-presenter of the programme, and his colleague Marilena Katsimi had made comments on air about the minister of public order’s response to an article published in the British newspaper the Guardian written by Helena Smith.

Arvanitis told me:

I’ve been working as a journalist for 25 years. I’ve never experienced anything like this — not to this extent and with such intensity, at least. I consider what happened as aggressive meddling by the political system. It’s becoming more and more clear: every question that is different, every perspective that is different is considered provocative. You can understand what’s happening if you take a careful look at the media coverage of strikes.

Influential columnists and unsigned editorials very often neglect the reasons lower and middle working classes decide to go on strike. Instead of shedding light on their requests, these outlets prefer to present the strikes as instances of “abusing the public space” or “disturbing public peace”. This is the typical official government response as well. In the broader context, of course, this approach fails to report on the growing pressure on workers — on those who still have a job but with reduced salaries, and on those without one.

A Guardian article written by Maria Margaronis was published on 9 October and mentioned allegations of police brutality against protesters. It also referred to and confirmed an earlier article,published on 28 September, written by Helena Smith, that quoted ‘analysts, activists and lawyers’ as saying that the “far-right Golden Dawn party is increasingly assuming the role of law enforcement officers on the streets of the bankrupt country, with mounting evidence that Athenians are being openly directed by police to seek help from the neo-Nazi group”.

Margaronis also wrote:

Fifteen anti-fascist protesters arrested in Athens during a clash with supporters of the neo-Nazi party Golden Dawn have said they were tortured in the Attica General Police Directorate (GADA) — the Athens equivalent of Scotland Yard — and subjected to what their lawyer describes as an Abu Ghraib-style humiliation. If it hadn’t been for the Guardian stories, it is highly unlikely that Golden Dawn’s purported connection with the police would have reached a foreign audience — or the Greek public. The fact that these claims never made the Greek press and that Arvanitis was censored for simply commenting on one of the articles shows just how prevalent censorship is in Greece today.

Dimitris Katsaris is a lawyer for four of the protesters who alleged that they were tortured in GADA after they were arrested during the 30 October protest. He says the way the situation has been handled is a clear “indication of censorship … interviews with the anti-fascists took place in a climate of terror; at the end, the policemen tried to grab me and push me away while I was complaining to them. All of this has been recorded.” However, the censorship didn’t stop there.

Ignoring the truth

Minister of Public Order Nikos Dendias claimed on SKAI TV talk show New Folders on 16 October that the Guardian report on police brutality was false, and threatened to sue the British paper if no proof of torture was found. He questioned the source of the photographs in Margaronis’s article — which showed an injured protester — and claimed that since the anti-fascists hadn’t gone on record with their names and reports, and hadn’t filed a lawsuit against the police, the Guardian was not justified in publishing the story.

Dendias also denied assertions that the arrested protesters were afraid to go on record because they had been threatened by police or extremist Golden Dawn supporters. According to Katsaris, although SKAI and the New Folders’ presenter Alexis Papahelas were already in possession of the photographs indicating police brutality at the time they interviewed Dendias, they did not report on the evidence or broadcast the photographs; had it not been for SYRIZA MP Dimitris Tsoukalis’s intervention on the show, the photos wouldn’t have been shown on air. “From the moment the Guardian’s report was published,” Katsaris says, “I was in contact with New Folders’ editor-in-chief. A week before the show I was providing him photos and evidence that proved torture by the police.” Katsaris says he called the editor-in-chief and asked him to intervene, but after many calls, he was told there was “‘no sufficient airtime” to provide the other side of the case. “So I could not contrast the ministers’ claims. I even asked them, given the material they had, to question the minister in a fair journalistic manner. They didn’t.”

It seems that every time a story about political actions by anti-fascist protesters unfolds, the censorship machinery of the government and Golden Dawn is set in motion. Niko Ago, an Albanian national who had been working as a journalist in Greece for 20 years, faced deportation after publishing a report about alleged criminal activity by Golden Dawn spokesman Ilias Kasidiaris, who is a member of parliament. Ago revealed that Kasidiaris was facing charges for allegedly participating in a 2007 attack on a postgraduate student and for illegal possession of a firearm .Since then, Ago has been receiving threatening emails containing defamatory and racist comments, some of which he published, including one that said ”Fuck you, Albanian … all you fucking Albanians are going to get what you deserve.”

Muzzling grassroots dissent

A great deal of pressure has also been brought to bear on independent, non-corporate media collectives or individuals who offer grassroots coverage. On 20 December 2012 and on 9 January 2013, police operations were carried out at the Villa Amalias squat in Athens, which has been an important meeting place for alternative political movements for the last 23 years, and at the Radiozones of Subversive Expression, an Athens-based radio station at the University of Economics and Business (ASOEE). Anarchists, leftists and political dissidents used both sites to organise labour, anti-fascist and antiracist rallies. As part of the operations connected with the ASOEE raid, in late December, anti-riot squads and police targeted immigrant street vendors originally from Nigeria, Morocco and Bangladesh who were selling pirated CDs and wooden animal figurines, as well as those who were regarded as supposedly condemning Greece to an economic decline, as the Radiozones website put it. The government, as well as Golden Dawn, tends to regard the economic activities of immigrants as detrimental to the national economy and as a threat to local workers.

Last October, during German Chancellor Angela Merkel’s visit to Greece, nearly 100 arrests took place, as Avgi newspaper reported. During the 6-7 November general strike, a group of parliamentarians from SYRIZA denounced the massive presence of undercover police on the streets of Athens. According to the coalition, they were both acting as provocateurs among peaceful protesters and arresting people who simply looked “suspicious”. The policy of pre-emptive arrests has been repeatedly called unconstitutional by human rights organisations, including the Hellenic League for Human Rights.

Tomasz Grzyb/Demotix

During the annual Athens’ Polytechnic School rally on 17 November, dozens of pre-emptive arrests were reported on the website of the weekly political newspaper Kontra and activist websites documented many individual complaints. Indymedia Athens, the local collective of the international grassroots and activists network, published two complaints from citizens arrested on the day of the rally. In both cases, individuals were detained before the demonstration and were kept in custody for five hours without being allowed to contact a lawyer.

Mainstream media failed to report the events, while the government officially ignored complaints. Most news on the events came from blogs and free expression activists.

Online censorship

This systematic abuse is also taking place in the online environment. After posting a Facebook page that ridiculed a well-known Greek Orthodox monk, in late September 2012, a 27-year-old man was arrested on charges of‘”malicious blasphemy and religious insult”. Many online activists and commentators reflected that the page, called Elder Pastitsios the Pastafarian (which intentionally combines the name of the monk with a popular Greek food), angered members of Golden Dawn, who called for the man’s arrest under Greece’s anti-blasphemy laws. Free expression advocates responded, with the hashtag #FreeGeronPastitios trending on Twitter, and a petition addressed to parliament calling for the immediate release of the Facebook user was circulated online Vassilis Sotiropoulos, a lawyer and blogger specialising in internet legislation, writes:

“The legislature refuses to address the issue of internet censorship, thereby allowing law enforcers (prosecutors, police officers, judges and lawyers) to freely interpret and utilise the existing legal tools. This phenomenon has sometimes led to misunderstandings, which restrict individual rights of freedom of expression and privacy. Sotiropoulos added that the case of Elder Pastitsios provided perhaps the first example in Greece of an internet company disclosing information to the government in order to identify an individual accused of ‘alleged offences relating to religious satire’.

When considering freedom of speech as a universal human right, it is important to comprehend the social and economic context of our times. Currently, the political and economic elites, in Greece but elsewhere in Europe as well, are repositioning themselves within a capitalist system that is undergoing a continuous transformation.

Speaking to Al Jazeera, William I Robinson, Professor of Sociology and Global Studies at the University of California, Santa Barbara, argued that we are currently living through a phase of capitalism where “nation-state constraints” no longer apply. He stated that the “the strength of popular and working class movements around the world, in the wake of the global rebellions of the 1960s and the 1970s”, are now being effectively and successfully undermined.

Historically, during periods when there have been attempts to devalue the working class, there have also been challenges to the fundamental right to voice dissent, which has had a direct impact on efforts to improve living conditions. The current economic crisis, then, fits this model; it can also be used as an effective tool for the far right and those using fascist rhetoric to attack immigrants and workers.

Freedom of speech and protest in Greece must, then, be seen in very specific terms. The right to free expression is being systematically and effectively challenged by formidable political and economic agendas. It is crucial that activists, journalists and those being censored and abused continue to make their voices heard.

Christos Syllas is a freelance journalist in Athens. He tweets from @csyllas

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

The post Free speech takes a beating in Greece appeared first on Index on Censorship.

The Snoopers’ Charter: we need a new consultation

2013-03-25T10:10:03+00:00

The Communications Data Bill – more commonly (and fairly accurately) known as the ‘Snoopers’ Charter’ is due to re-emerge at any moment. We have been expecting it for some time – and yet have seen nothing official, and there has been no sign of a proper public consultation on the subject. That, to me, is wholly inadequate – so I have written to the Home Office, copying in my MP, Dr Julian Huppert. The contents of the letter are below. If you feel strongly about this matter – and I hope you do – you could add to the pressure to have a proper public consultation by using the Open Rights Group’s system, which can be found at:

http://www.openrightsgroup.org/campaigns/snoopers-charter-consultation

Here’s what I wrote – it is fairly long, but still only scratches at the surface of what is wrong with the overall approach to surveillance put forward in this bill:

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Dear Home Office

Re: Draft Communications Data Bill

I write to you as a legal academic, specialising in data privacy, and as a member of the public with significant concerns over the progress of the Communications Data Bill. In my opinion we need a consultation – and a public and open consultation – on the Bill for many reasons.

The media storm – and the eventual and significant criticism levelled at the bill by the Parliamentary Committee hastily convened to discuss the bill the first time around should have made it clear to the proponents of the bill that there is a huge public interest in this area. That has a number of implications:

That the criticisms levelled at the bill need to be taken seriously.
That all the interested groups, including advocacy groups and academics – and indeed the public – need to be talked to up front, not after all the work has been done.
That a ‘fait accompli’ is not an acceptable solution
That the level of ‘proof’ provided by those putting the bill forward needs to be much more convincing – and much more open – than what has been provided to date. It is simply not sufficient to say ‘it’s dangerous and something must be done’, or ‘we can’t tell you why, but we need to do this’.

Those of us interested in the Bill have been waiting for the consultation to begin – there have been leaks to the media at intervals suggesting that it would start soon, but so far nothing has been made official or public. That is both unfortunate and ultimately unacceptable. We need that consultation to begin soon, and in an open and public way.

A targeted rather than universal approach to surveillance

Though in my view the Parliamentary Committee did a very good job in scrutinising the bill and in reviewing the huge amount of evidence submitted to it, there are a number of areas that I do not believe were sufficiently considered.

These areas hit at the very essence of the approach adopted by the bill. The whole idea of a ‘gather everything for later scrutiny’ approach misses many of the fundamental risks attached to this kind of surveillance: the risks of data and system vulnerability, of function creep, and of system misuse. Much of the evidence submitted to the committee that scrutinised the Communications Data Bill examined these risks – but the committee did not, in my opinion, see quite how fundamentally they undermined the overall approach of the Bill. Nor, in my opinion, did they look sufficiently into a genuinely alternative approach.

That alternative is to go for a targeted rather then universal surveillance. This kind of approach can significantly reduce all of these risks. Putting both the warranting and the filtration systems before the gathering stage rather than the accessing stage would reduce the amount of data that is vulnerable, make the systems harder to misuse, and reduce the likelihood – or the impact – of function creep. It is closer to the concept at the heart of British justice: that people are innocent until proven guilty.

1 Risks of data and system vulnerability.

It is a fundamental truth of computer data that wherever data exists and however it is held it can be vulnerable – to hacking, to accidental loss, to corruption, to misinterpretation, to inappropriate transfers and to many other things. By gathering all the communications data, this approach sets itself up for disaster – it is like painting metaphorical signs saying ‘hack me’ on the databases of information. If you build it, it will be hacked.

What is more, it is not only data that’s vulnerable but systems – if ‘black boxes’ are installed at ISPs, those black boxes will also have the metaphorical ‘hack me’ signs upon them. If you make a back door, the bad people as well as the good people can come in. It doesn’t matter how secure you think your system is, it can be broken into and hacked.

The government doesn’t have an inspiring record in terms of keeping data secure – from the Child Benefit data discs and the MOD laptops to the numerous NHS data breaches – but this is not really so much a reflection of government inadequacy to an underlying truth about data and systems. Stories of hack and data losses are in the news almost every day – and even those with the greatest technical ability and the greatest incentives to keep data secure have been victims, from Swiss banks to pretty much every major technology company. Facebook, Apple, Microsoft and Google have all fallen victim over recent months.

Ultimately, the only data that is not vulnerable is data that doesn’t exist at all. Furthermore, the only systems that can’t be hacked are systems that don’t exist. If targeted rather than universal surveillance is used, then the vulnerability is enormously reduced.

2 Risks of Function Creep

When data is gathered, or systems are built, for a specific purpose, that purpose can very easily end up being changed. This is a phenomenon particularly common in the field of anti-terror legislation and systems. Most people are aware of RIPA having been used for such things as dog fouling and fly-tipping, of CCTV cameras ostensibly for crime prevention actually being used to check children’s addresses for school catchment areas and so forth – but these are not myths or even particularly atypical. This has become something close to a ‘norm’ in this field.

There often appear to be good reasons for this function creep – not many people argued when the CCTV system for the London Congestion Charge started being used for crime prevention, for example – but it is a phenomenon that needs to be acknowledged. There isn’t really a legislative way to deal with it – caveats in laws can be sidestepped, laws can be amended in moments of ‘need’ and so forth. The only way to prevent it, as for data vulnerability, is to not build the systems or gather the data in the first place.

Again, this is a strong argument against universal data gathering – data gathered specifically, in a targeted and warranted way, presents less of a risk of function creep. Similarly, specifically designed and targeted systems are less susceptible to function creep than huge, universal surveillance systems.

3 Risks of System and Data Misuse

Another phenomenon familiar to those who study this field is that systems can be and are misused – whether it is databases searched for information about people against whom the searcher has a grudge, or collusion between the authorities and the press. The Leveson Inquiry should have made it entirely clear that such risks are not mythical – and if anyone believes that either the police and other authorities or the press have completely changed as a result of the exposure of the phone and email hacking then they are being extremely naïve.

The systems and data envisaged in this plan are particularly susceptible to this kind of misuse. The description of this kind of system as a ‘Google for communications data’ is entirely apt, and anyone who uses Google regularly should understand how easily the process of searching morphs from one thing to another. Human beings will use these systems – and human beings have human weaknesses, and those weaknesses lead almost inevitably to this kind of misuse. With universal data gathering built into the system, the database would be ripe for very serious misuse indeed.

Again, there is only one real way to deal with the possibility of system and data misuse – minimise the size and scope of the system and the amount of data involved. That, again, suggests that we need targeted rather than universal surveillance.

The Normalisation of Surveillance – and the Panopticon Chill

These are just a few of the problems that a system like this could bring about. There are many more – and I have written before about how this kind of surveillance impacts not only on privacy but on a whole array of human rights. By suggesting that universal surveillance is something that we should consider normal and acceptable we are ‘normalising’ – which has a whole set of implications.

Jeremy Bentham’s concept of the Panopticon, one with which I am sure you are familiar, is based on the idea that if people know that they’re being observed, they modify their behaviour. He envisaged it for a prison – to help control the behaviour of potentially violent and dangerous prisoners, put them in a position where they know that at any time they might be observed. In effect, this is what this kind of a system does – it tells everyone that whatever they do on the internet can and will be observed.

What will that mean? Well, it creates a kind of ‘chilling effect’ – what I would call the ‘Panopticon Chill’. It means people will be less free with their speech – and feel less free about what they do, where they go, and what they do online. That impacts upon many of our recognised human rights: freedom of expression, freedom of association and freedom of assembly to start with.

There are some who would welcome this kind of Panopticon Chill – some who think that we need to control the internet more. That, however, is to treat us as though we are prisoners in an enormous online jail. Bentham’s idea was not for ordinary peoples, but for potentially violent and dangerous prisoners. Is that how we all want to be treated? Is that the kind of society that we want to live in?

What kind of society do we want to live in?

That is the bottom line for the Communications Data Bill. Putting this kind of bill into place would be to set up precisely the kind of surveillance society that Orwell warned us of in 1984. Is that what we want to do?

There are other huge questions – not least the question of whether it will work at all. As the huge quantity of evidence submitted in the initial consultation revealed, few real experts believe that it will – anyone with expertise will be able to sidestep the system, leaving the rest of us to suffer the downsides of this kind of surveillance without the upsides even existing.

What is more, by promoting such a system in this country we not only give permission for the more oppressive of regimes to do the same (and leaders from Putin in Russia to Assad in Syria will be watching us with eagle eyes) but we would also be kick-starting the surveillance technology industry. Whichever companies win the contracts to supply the tech to enable the Bill will be looking to exploit that technology – who will they sell their systems to? What will the next systems they apply their learning and experience to? The £1.8 billion (and probably more) that the UK government spends on this will reap benefits to dictators and oppressors worldwide in coming decades.

A new draft of the Communications Data Bill?

As I understand it, only people close to the Home Office have yet seen how the Communications Data Bill will look in its new draft. I have been told that I won’t be upset when I see it – but without more information it is hard for me to be optimistic. Unless there is a fundamental change – most importantly a shift from the universal to the targeted approach, and an application of warrants and filters at the gathering rather than the accessing stage – it is hard to imagine that it will be something that I do like, and something that will inspire public trust.

A bill based on targeted rather than universal surveillance is possible. If it is brought about I believe it could not only be more compatible with human rights, send better messages to the rest of the world and be more cost effective – but it could also be more effective and less wasteful of the scarce resources of the police and intelligence services.

It does, however, require a big shift in attitudes. I hope that shift in attitudes is possible – and, at the very least, that we can have this debate in public, on reasonable and sensible terms, and without the feeling that we are being railroaded into a particular solution without any real options being presented.

A proper consultation

That, ultimately, is why we need a proper consultation. I have a perspective to present – and very particular views to put forward. I believe they are worthy of consideration – and I am very much open to discuss them. That discussion has not yet taken place. We need it to happen – and we have a right to have it happen. A proper consultation should happen now – at the drafting stage – not after everything has been already set in stone.

One real key here is that the public has not been properly informed over this debate. Initially, it appeared as though the government wanted to get this bill passed so quickly there wouldn’t even be time for Parliamentary scrutiny – it was only when the issue caused outrage that the committee was set up, and even then the consultation period was very brief and at a time when many academics in particular were not in a position to submit. We need more time – this is a crucial issue, and the public needs to have confidence that an appropriate decision is being made. The debate was characterised at times by language that should have no place in a serious debate, with opponents of the bill being accused of having blood on their hands.

This time around, we need proper consultation, with sufficient time and sufficient opportunity for all stakeholders to have their say. All options need to be considered, and in a way that both encourages and supports public participation, and develops a greater level of trust.

I am copying this letter to my MP, Dr Julian Huppert, who was on the Parliamentary Committee that scrutinised the bill, and to the Open Rights Group as well as making it public on my blog.

Kind regards

Dr Paul Bernal

Lecturer in Information Technology, Intellectual Property and Media Law

UEA Law School

University of East Anglia

Norwich NR4 7TJ

Email: paul.bernal@uea.ac.uk

Omani sultan pardons jailed bloggers

2013-03-25T09:47:55+00:00

The sultan of Oman has issued a pardon for about 50 bloggers and human rights activists who were recently sentenced to long jail terms on charges of defamation, cyber-crime or illegal assembly.

The Paris-based press freedom watchdog, Reporters Without Borders (RSF), said it was "relieved" to learn of the pardons issued by the sultan, Qaboos bin Said Al-Said.

Some 20 of the sentenced prisoners went on hunger strike in protest against their imprisonment and the time taken by the supreme court to examine their appeals.

An RSF spokesperson said: "This is an encouraging gesture for freedom of information in the sultanate… The [Omani] laws on freedom of information, including online freedom of information, must be reformed so that they comply with international undertakings signed and ratified by the sultanate."

Source: RSF

Roy Greenslade

Abbas government denied Palestinian journalists access to Obama visit

2013-03-25T09:31:35+00:00

Eighteen Palestinian journalists were denied access by the Palestinian Authority to cover President Obama's visit last week to the West Bank.

Authority officials said there were "security reasons" for the failure to give accreditation to the journalists. Some work for pro-Hamas media and some represent media close to the Palestinian Authority, led by President Mahmoud Abbas, but have been critical of it.

The 18 journalists included Mohammed Daraghmeh, who works for the Associated Press, and he was eventually granted access after making a strong complaint.

Others were not so lucky. They included: Abbas Momani (AFP), Issam Rimawi (Al Hayat Al Jadeeda), Maher Alemi (Al Quds), Nael Bwaitel (Xinhua), Iyad Jadallah (WAFA), Hudaifa Srour (WAFA) and Awad Rjoub (Al-Jazeera website). The others were from pro-Hamas news outlets.

The Authority's foreign press secretary, Abdullah Erakat, acknowledged that some journalists didn't get accreditation due to "technical mistakes" and said he had "lost sleep" over the issue. He denied that journalists were denied security clearance because of their work.

Anthony Mills, deputy director of the International Press Institute, registered concern at the denial of access, adding: "We urge the president's office to undertake an investigation into this matter and ensure that journalists for all media are given equal access in future."

Source: IPI

Roy Greenslade

Yes, hacking was a disgrace - so why did most newspapers ignore it?

2013-03-25T08:22:00+00:00

"Nobody should condone the behaviour of parts of the press that led to the Leveson inquiry," said an editorial in yesterday's Sunday Times.

But the point is that virtually all of the non-hacking press, including the Sunday Times, did condone it. They did not investigate the widespread claims of hacking when the story first broke in 2006.

They turned a blind eye when the industry's trade magazine, the Press Gazette, ran a front page in August 2006 which claimed, on the basis of evidence it had quickly obtained, that the practice of "phone screwing" (ie, hacking) had been widespread throughout Fleet Street.

Newspapers now eager to condemn the News of the World for its illegal activities did not lift a finger to expose them. Instead, they appeared to accept the obviously self-serving claim that it was all down to a rogue reporter.

Three years passed, and then The Guardian reported in 2009 that News International had quietly paid out more than £1m to hacking victims, wrecking the rogue reporter defence.

Again, papers that routinely scorn the interception of voicemail messages - most definitely the Sunday Times - preferred to turn on The Guardian rather than take its allegations seriously.

That week, The Times ran an article headlined "News International accuses Guardian over claims of voicemail hacking", which sought to rubbish the paper's revelations.

The Daily Telegraph did nothing. The Daily Mail, Daily Express and Daily Mirror all averted their gaze. Hacking, though regarded now by all these publications as a disgraceful activity, was not disgraceful enough at the time to warrant investigation.

Needless to say, The Sun - staunch defender of a free press that tells us day by day it wishes to hold power to account - blamed the messenger for the message.

Even if they could not bring themselves to assign reporting teams to the task of probing the illegal activities of a rival paper, they could have demanded that the police did so. But they did not.

There were no headlines urging Scotland Yard to root out the criminals and no editorials demanding government action. They buried their heads and hoped it would all go away.

They let the News of the World, News International and the Metropolitan police off the hook. There was none of the relentless pressure that is now being applied over the issue of press regulation.

Instead, the papers exposed as failing in their central mission have fallen back on saying that hacking was an illegal activity that the police should have investigated.

In another Sunday Times article yesterday, Andrew Sullivan wrote: "Hacking someone's phone is not freedom of speech. It's a crime. It's not journalism… Crimes are not protected under free speech… Criminal acts by editors or writers should be punished in the courts of law."

I cannot disagree with that. But his principled defence of press freedom, viewed from an American perspective, entirely misses the hacking context that led to the formation of the Leveson inquiry and its report.

Britain's national newspapers, by commission and omission, were responsible for creating the current state of affairs. If hacking is now so bad in 2013, why was it not so in 2006?

Roy Greenslade

Police Scotland and Freedom of Information

2013-03-25T00:32:54+00:00

Next week the Police Service of Scotland will take responsibility for policing Scotland from the current eight police forces in Scotland. This will have implications for Freedom of Information, at least in the short-term.

The cost of handling an FOI request is likely to increase dramatically meaning that requestors may frequently have their requests refused under section 12 of the Act (excessive cost of compliance). The new single force will continue to run eight separate IT systems while new IT systems are procured and launched. Undoubtedly it will take some time for information held in paper form to be better organised taking account of the new single force structure. Therefore, searching for information held by the new force will be rather time consuming. In some requests the new force will be required to carry out the same searches within each of the boundaries of the eight forces; if some of the old forces held the requested information on multiple systems then you could be looking at more than eight almost identical searches per request. That’s a lot of staff time simply locating whether the information is held by the force.

It is likely that most requestors will only want the information as it relates to their old force area and so it might be worthwhile for the next year or so ensuring that when you are requesting information that you are as geographically specific as possible. For example, if you would have requested the information from only Strathclyde Police were it still in existence, then state in your request that you are only interested in the information held which relates to the old Strathclyde area.

Currently if you wish a nationwide view then you would be requesting the information from the eight forces and the cost to each force would be separate from the other forces. However, now you will be requesting it from a single body meaning the cost of searching within each of the old force areas is burdened by one organisation (the new single force). As a consequence of this it will be aggregated and might engage section 12 much more easily than before.

When the new force comes into existence it will be under a great level of scrutiny to ensure that it is delivering what is needed in Scotland, but it may well become more difficult for the public and journalists to hold the force to account through FOI.

It will certainly be worthwhile watching the responses from the new single force to see if there is an increase in the number of section 12 refusals. An increase would mean less public scrutiny of a very large public authority with an enormous budget and a significant amount of power.

DH Lawrence's poetry 'ruined by censorship'

2013-03-24T00:06:30+00:00

New edition of author's work reveals him as a talented war poet who attacked British imperialism

DH Lawrence was an infamous victim of the censor as his sexually explicit novel Lady Chatterley's Lover was banned in Britain until 1960. Now a new edition of Lawrence's poems, many rendered unreadable by the censor's pen, will reveal him as a brilliant war poet whose work attacking British imperialism during the first world war was barred from publication.

His poems took aim at politicians, the brutality of the first world war and English repression – but censorship and sloppy editing rendered them virtually meaningless, to the extent that the full extent of his poetic talent has been overlooked.

Deleted passages have now been restored and hundreds of punctuation errors removed for a major two-volume edition to be published on 28 March by Cambridge University Press – the final part of its mammoth 40-volume edition of Lawrence's Letters and Works.

The Poems, the first critical edition of Lawrence's poetry, sheds new light on the miner's son who became one of the 20th century's most influential writers, with novels such as Sons and Lovers, The Rainbow and Women in Love.

The new volume's editor, Christopher Pollnitz, told the Observer that it "radically shifts our understanding of Lawrence's significance as a poet". What was removed from the poems – by state censors or publishers fearing government intervention – was the "ultimate censorship", he said, because extensive and significant cuts made the texts virtually unreadable.

Lawrence wrote poetry from 1905 until his death in 1930, aged 44. Pollnitz said it is widely assumed that only the novels suffered censorship, "but it goes all through the poetry as well".

Some 860 poems are published in the new edition. They include All of Us, a sequence of 31 war poems never fully published before, which reveal Lawrence's preoccupation with the Allies' campaigns in the first world war.

Between 1916 and 1919, Lawrence struggled to get the sequence into print. Pollnitz said publishers who knew of the banning of The Rainbow would not touch a collection that criticised imperial policy – the opening up of eastern fronts in Turkey or Iraq – and poetry that explored the evil of self-sacrifice for some abstract greater good.

Lines now restored identify places such as Salonika and Mesopotamia – explosive references at the time, Pollnitz said. "While the war was continuing, the worst defeat the British suffered was in Mesopotamia … General Townshend's charge up the Tigris towards Baghdad was one of the most costly and wasteful ventures, in lives and money, of the first world war."

The subtitle Salonika appears in Rose, Look out upon Me, a previously unpublished work. Pollnitz said: "Salonika was the Greek city to which Allied troops were sent after the attempt to storm the Dardanelles failed."

In the poem, Lawrence portrayed a common English soldier, stationed in Salonika, who is attracted to a Greek woman, but it is a doomed passion: "Oh you Rose, look out/ On a miserable weary fellow./ For once she looked down from above/ And vanished again like a swallow/ That appears at a window …"

Lawrence also wrote about the home front, and the changing roles of women – a girl startling her boyfriend by asking him to stay with her before he leaves – and how childhood innocence can be wrecked by the stresses of war.

Pollnitz added: "Lawrence's writing on war and sex were censored by publisher timidity, making All of Us unpublishable at the time, and the sequence is being fully published almost 100 years after its wartime composition."

Ill-health meant Lawrence himself was never conscripted. His insight into the war probably came from his pacifist friend, Lady Cynthia Asquith, daughter-in-law of prime minister Herbert Asquith. While war poets such as Wilfred Owen depicted the cruelty of a bloody battlefield, Lawrence tackled the loss of lives and impact on loved ones from a political point of view. He also had to write with more subtlety because censors were already watching him. In a poem titled Dust, he wrote of a relative's horrible death: "My brother died in the heat/ And a jackal found his grave;/ Nibbled his fingers, the knave;/ No more would I let him eat."

In Antiphony, he wrote of a British prisoner of war in Turkey struggling to cope with captivity – "Each evening, bitter again" – and, in Needless Worry, he explored a young woman's loss of her soldier fiancé, talking to her mother: "Why are you so anxious, there's no fear now he's dead."

In The Well of Kilossa, he referred to the war in German east Africa and the huge loss of lives in inhospitable terrain: "A draught of thee is strength to a soul in hell."

The poetry edition is published a century after 10,000 words were censored from Sons and Lovers, and nearly all copies of The Rainbow destroyed, with a sexual episode between Ursula Brangwen and her schoolmistress among offending passages. His sexually explicit 1928 novel, Lady Chatterley's Lover, became a cause célèbre in 1960 when, after a much-publicised trial, Penguin won the right to publish the complete book – a dramatic step towards securing freedom of the written word.

Dalya Alberge

This pizza-box press regulation is a sticky mess

2013-03-23T20:07:19+00:00

Leveson dreamed of a voluntary regime, not an expedient political compromise imposed at two o'clock in the morning

So, we've seen the future; but no one can be sure it will work. The brilliant QC who heads the Media Standards Trust, mothership of Hacked Off, says that if press people are unhappy, "they can come up with something else and sign up for something different". Hacked Off itself bows an exculpatory knee to bemused bloggers. The editors of the three national papers most inclined to Leveson compliance (the Indy, Guardian and FT) mix "grave reservations" with pink rejection. The leader of Britain's 1,100 largely blameless local papers talks of "crippling burdens". One politician's "statutory underpinning" is another politician's coughing fit. And a Department of Culture spokesman tells the founder of Mumsnet that "it will ultimately be for the courts to decide on the definition of a 'relevant publisher' covered by the new regulations". Are you in or out for the dog's breakfast, mum?

This isn't quite the euphoric picture painted by three hours of debate in the Commons last week, hailing a charter agreement that most MPs hadn't read. Nor is it the simple formula for bashing the tabloids that ordinary folk tell pollsters they endorse (before 19 million of them go out and read the selfsame slime sheets each morning). No: the problem – absolutely nil cause for rejoicing – is that the process of purported regulatory reform, culminating in what sounds like a berserk pizza party in Ed Miliband's office in the earliest hours of Monday, has been transparently idiotic, even down to four Hacked Off reps sitting eyeing the pepperoni and cheese.

The point of the exercise, remember, was to deliver Lord Justice Leveson's legacy dream of press regulation that can endure down the decades, sealing Sir Brian's name in an eternal flame. It wasn't to scribble compromises on the back of a pizza box. Nor was it to confect roseate consensus between warring political parties and celebrity pressure-groupers with legislative menaces attached. Voluntary regulation – Leveson's own formulation – demands agreement, real agreement, among participants on every side. It can't be inflicted at 2am. The Irish model so copiously referred to in parliament took four years of negotiation (repeat: negotiation) between Dublin's government and press. When Westminster politicians complain that no effort at press reform ever sticks over here, they might perhaps wonder whether they're going about it the wrong way.

And now? The charter may or may not be signed off in May. It may or may not be somehow amended to soothe Strasbourg, calm the locals, enlighten relevant publishers everywhere. We shall, probably, see a "recognition panel" appointed to validate one or more regulatory regimes, but since it's stipulated that none of the panellists can be publishers, journalists, editors, politicians or civil servants (though appointed by civil service rules), it's not clear that anybody who knows anything about the industry, the issues, or indeed any "relevant" matters, will get a job – and why on Earth should even the neediest among our great and good apply to a body for vetting bodies that don't and may never exist?

Almost the only people consistently welcomed aboard the various panels and committees enchartered here are our old chums the lawyers (as in retired judges, barristers et al). They won't put to rights the arbitration procedures that local editors fear; they'll continue to debate the rights and wrongs of exemplary damages till kingdom come. Meanwhile, the costs of a very elaborate new system mount insupportably the fewer newspapers, magazines and websites join. Will local papers do their own thing, or do nothing? It looks very likely, with magazine publishers – in the wake of Private Eye, the Spectator, the New Statesman and, for heaven's sake, a thunderously magisterial Economist – following suit. Is a regulator that only regulates the Indy, Guardian and FT a viable proposition?

Whatever happens next, it's unlikely to happen quickly. Whoever hoped that a charter-approved regulator might be up and running by 1 July has surely got another hope coming. Whoever believed that the contentious rulings on exemplary damages and arbitration costs would stir the sub-clauses of the European Convention on Human Rights (article 10) hasn't either studied the Dublin debate or read the speeches of the UK's greatest expert in this area, Lord Lester. It may sound smart to name a recognition panel and wait for customers; but the nature of that panel, once named, could also be a final deterrent.

In sum, it's all an unholy mess. The warm bath of mutualised treacle that swilled around Westminster at the beginning of the week has turned toxic. Crass politics; ludicrous misjudgments. But that doesn't mean that the press is home free.

The Press Complaints Commission has taken too much punishment. It awaits replacement. Its chairman, Lord Hunt, eagerly awaits a new challenge that has nothing to do with the press. His "foundation group", led by a former titan of the supreme court, is ready to start nominating the people who will appoint a replacement regulator covering most of Leveson's recommendations. The question now – for government, opposition and campaigners – is whether that process should be encouraged or denounced. The question for Hunt and his founding fathers is whether they can convince the doubters and rally full press support. The question, in sum, is what comes next. By agreement, one step at a time.

■ Fact-check corner: the Press Complaints Commission "has descended into complete farce because a newspaper that got into trouble was judge and jury on itself", according to Nick Clegg.

Fact: 16 men and women sit around the PCC table in these dying days. Only one is the editor of a national paper (the Sunday Telegraph). Ten are "public members", a category featuring solicitors, charity organisers, retired judges and police officers, union organisers, scions of the Royal household and a former chairman of the BBC. Some jury! No farce.

Peter Preston

Regulating the UK media sends the wrong signal to Africa | Erick Kabendera and Haruna Kanaabi

2013-03-23T20:03:21+00:00

Regimes who suppress journalists will feel vindicated by this charter

As outsiders, we have always admired the level of freedom British journalists enjoy while carrying out their work and admired the quality of journalism that follows. What's more, African journalists use British precedents to push their governments to repeal draconian media laws, most of which were enacted by British colonial governments in efforts to suppress free speech during struggles for independence.

Indeed Britain has always been, and continues to be, our point of reference in defence of unregulated media and freedom of speech. We have always respected the level of tolerance in Britain for what would be regarded in our countries as excesses of the media, and its ability to handle situations in a civilised way without resorting to the harsh measures journalists suffer in our countries.

It is for these reasons that we are concerned by the decision to introduce statutory press regulation in Britain after almost 300 years of unregulated media. This is likely to have far reaching implications beyond the UK's borders, with repercussions felt in countries that have always looked for any opportunity to restrict the work of journalists.

Indirectly the UK could send a message to African governments that statutory media regulation is now the way to go. This is a gift many African governments will receive with open hands and act accordingly. The Ugandan government, for instance, is making no efforts to repeal restrictive laws left by the British under the pretext of creating a responsible media. Indeed stricter amendments are proposed to discipline errant journalists; in addition, there have been attacks on journalists by security agencies. Meanwhile, in neighbouring Kenya, the activities of foreign journalists have caused disquiet in certain powerful quarters, and moves to restrict them cannot be ruled out when a new government takes office.

Journalists in Tanzania face continuous harassment by state security organs on the pretext of implementing media laws. Two journalists have been killed in two years and one disappeared mysteriously. A journalist was blown up by a police officer who fired a teargas canister in his stomach at close range for allegedly "asking the police too many questions" at a rally by an opposition political party. Earlier this month, a newspaper editor, Absalom Kibanda, was attacked allegedly by security personnel, his nails and teeth pulled out and his eye pierced with a sharp object. He is currently still hospitalised in South Africa.

Such incidents coupled with draconian historic media laws – enacted by the British colonial government in efforts to deal with independence movements – have made journalism in Tanzania a risky job. A media bill requiring bloggers, journalists and publishers to be licensed will soon be tabled in parliament.

The discussion in Britain on press regulation is likely to justify the passing of such laws in East Africa, since most of the decisions are based on the British legacy. Furthermore, the British government understands that its commitment to promote democracy in Africa relies heavily on independent media without which efforts to expose corruption practices will suffer. Also suffering will be the UK's reputation as a promoter of non-statutory media regulations. Efforts by the African media to develop non-statutory mechanisms to promote quality, responsibility and guarantee independence will endure serious setbacks.

While the British press argues about whether to submit or not to the requirements of the royal charter, we African journalists are worried about the consequences of this decision, particularly about its potential to set off a wave of more restrictive media laws and regulations. Our great anxiety, ultimately, is that we might lose our great point of reference, our guide, in our ambitions to build democratic societies where we can speak without fear of consequences.

Erick Kabendera is a freelance Tanzanian journalist and Haruna Kanaabi is the executive secretary of Independent Media Council of Uganda

Press regulation: instead of sensible reform, we now have a sloppy mess

2013-03-23T19:58:13+00:00

The introduction of the royal charter was beset with confusion and chaos

Lord Justice Leveson's most plangent question begins to be answered. Why, he asked repeatedly, do so many reforms of the British press, proposed down the decades by royal commissions and learned inquiries, come to very little? Perhaps because they are built on treacherous ground, because they need trust and great care even to begin to work. For both trust and care are the missing ingredients now.

Last Monday afternoon, pavilioned in effusions of cross-party regard, David Cameron ushered his royal charter through the House. By Tuesday afternoon, the prospects for a legally underpinned regime to replace the Press Complaints Commission seemed far more problematic. What went wrong? This paper supports the formation of a more rigorous, independent press regulatory system. It is not over-alarmed at the "dab of law" needed to protect it from ministerial meddling, either. Yet policy and due process have become foolishly interwoven.

Let it be said clearly that the press – divided, suspicious, too often shrill – is no easy partner in this search. To build any partnership on voluntary lines, there has to be intensive discussion, meticulous drafting and basic agreement. That did not, and could not, happen on Sunday night and Monday morning as (bizarrely) four Hacked Off campaigners, Nick Clegg and Ed Miliband guided Oliver Letwin, pizza box in hand, through the details of what they had agreed. It couldn't happen on Monday afternoon because so few copies of the charter were available to MPs. Only later – and much too late – did bloggers and websites (including Conservative Home) begin to wonder if they were "relevant publishers" as readied for rigour in the charter's text. Only later did arbitration and exemplary damages stew in a pot of confusion.

It's a Cornish pasty of a mess, a second-home mortgage for millionaire bankers. Mandarins used to condemn Tony Blair's "sofa style" of governance. David Cameron's team, alas, seem to specialise in snoozing, sloppy pizza and total tactlessness – and nothing will ever be properly regulated that way.

Brian Cathcart: a traitor to journalism – or voice of reason?

2013-03-23T19:46:24+00:00

Hacked Off's executive director sat through the night to broker the Leveson deal – and has been condemned by colleagues for his role. But he says it was vital to cure newspaper abuses

Mild-mannered and reasonable in tone, Brian Cathcart must be everyone's idea of an approachable gentleman-journalist. A traitor? A "surburban Mussolini"? Surely not. Yet the 56-year-old professor of journalism's decision to take up arms against Fleet Street to help Hacked Off's campaign for press reform has seen him branded as deluded and disloyal by former newspaper colleagues.

The opprobrium levelled at Cathcart increased dramatically last week when it was revealed he sat through the night with Nick Clegg, Ed Miliband and Oliver Letwin, the Cabinet Office minister, drawing up legislation to regulate the behaviour of British journalists. The deal brokered in Westminster in the small hours of Monday has been hailed as a political triumph for Miliband and welcomed by the wider public as an end to the backroom wrangling that followed Lord Justice Leveson's report, but it has been condemned as a betrayal by many of his fellow journalists.

Speaking to the Observer this weekend, Cathcart was still "a little shell-shocked" by the appearance of sudden victory for him and, by extension, for Leveson. The executive director of Hacked Off suspects a few of his oldest friendships will suffer permanently, whatever the outcome. "People have taken it personally," he said, "but I do enjoy the wholehearted support of a lot of very good journalists, who don't necessarily want to break cover."

He does not want sympathy, but finds some of his fellow journalists' reactions "striking". "All my working life I have written critically about various police forces and government departments and other institutions. And yet when I am part of a challenge to News International, Trinity Mirror, the Telegraph Media Group and Associated Newspapers, then I am no longer someone trying to expose wrongdoing. I am suddenly a traitor. These are big, powerful, rich organisations that offend and abuse members of the public in ways that should outrage good journalists."

On Friday, Hacked Off called for an urgent correction to one of the major sticking points for Fleet Street: the unintended vulnerability of the amateur blogger who, due to "bad government drafting", could have found themselves liable for exemplary damages. An amendment to the crime and courts bill should sort this out on Monday, Cathcart hopes, though this is unlikely to be enough to win over those editors who have expressed alarm.

So far Private Eye, the Spectator, the Economist and the New Statesman have all declined to co-operate with the royal charter. Newspaper editors have not yet formally rejected proposals, but have criticised the deal. Objections centre on the fact that any media organisation that refuses to join a new regulatory register will be penalised in court with heavier damages and, even if they win a case, will pay hefty costs.

Cathcart defends this component of the plan in principle. The detail is still being worked on, he said, but any magazine or newspaper that does not comply with regulation will effectively be preventing a complainant from using a cheaper, royal charter-approved arbitration service and so forcing them to take their case to court. "They will be making their lives much more expensive, and this has to be redressed."

Cathcart, who teaches at Kingston University and has worked for the Independent and the New Statesman, sees carrots as well as sticks for compliant publications. "There are incentives that Leveson did not outline. Editors must ask themselves if they want to encourage people to trust their journalism and if they want to show they are not afraid of being asked to have high standards. These things should be attractive, rather than the contrary."

If this deal succeeds where six other attempts to check press excesses in the last 70 years have failed, Cathcart believes it will be because the voice of the public has finally been heard: the politicians, in this instance, cannot be trusted to represent the electorate because they are too close to the press.

Yet Hacked Off's claim to represent the public is undermined by the anonymity of some of its donors. Exactly which interests, journalists have asked, are behind the campaign? Is Evgeny Lebedev, the Russian proprietor of the Independent and the Evening Standard, perhaps a donor? Cathcart would not confirm or deny this. "This is an awkward one, but not because I don't want to answer. But if I eliminate one person, then the process goes on. Some donors have asked to be anonymous and none of them is a disreputable person. They want to support our campaign, but they do not want to be turned over in the press and subjected to the kind of abusive attacks we have seen others subjected to, including Hugh Grant, who has openly supported us and is on our board."

There is a more determined response to the claim that Hacked Off poses a threat to a 300-year-old tradition of freedom of expression in Britain. Faced with the charge that foreign journalists still struggling for press freedom have been dismayed by the new law, Cathcart said a brief conversation with Gerry McCann or any of one of 50 victims of press abuse would convince them something had to be done. He cited the support of pressure groups such as English Pen, although a statement on that organisation's website underlines the "chilling" uncertainties of the new regulation, "likely to affect the free speech of us all".

Attacks on the new charter have also focused on the apparent late-night desperation of the deal. Cathcart said this was not Hacked Off's strategy, but the result of using the only political leverage available. Last weekend the prime minister faced probable defeat in both houses on the issue of press regulation and could no longer hold off pressure from Leveson-friendly MPs.

"We were aware there was whipping going on and that Cameron was looking at the numbers," said Cathcart. "I feel grateful that he signed in the end because it makes a big difference that this is a three-party deal." He believes the prime minister's main reservation, his "Rubicon", has been addressed.

Hacked Off worked hard to bring Nick Clegg and Ed Miliband together on the charter's wording. "We used our expertise in every way we could. We knocked on every door and, if they answered, we made our pitch," he said, but adds that by the time he was called to Westminster on Sunday evening much of the talk was over. He cannot remember who summoned him to Miliband's office, but suspects it was a message from the opposition leader.

"I was packed for a holiday in Rome and so it was a scramble to get to the meeting on time. I had my passport in my pocket but I didn't get to the airport." Much of the night was spent on parliamentary choreography. "This sort of housekeeping was going on around midnight, and for me, I have to say, quite a lot of the meeting was rather boring."

Contrary to fevered reports, there was no pizza served. "Or if there was pizza, it was in the Tory room. We had Kit Kats." He claims there were no rows, although clear differences over damages and court costs were voiced until it was agreed to defer these issues for later discussion. The culture secretary, Maria Miller, was not involved in talks, and Cathcart was not aware of any contact with newspaper editors.

"You might think I was the newspaperman in the room, but I am in no doubt that Oliver Letwin was fully briefed about the requirements of the industry. I felt he was doing that job." The moment of decision was difficult to pinpoint, he said, but there was a sense of relief when it was clear discussions would finish before breakfast.

"There will be a slow-burn reaction from the press now," he predicted. "Certainly a recognition body will be set up, because the charter will be promulgated. There will almost certainly also be proposals for a regulator. One or more will be put forward for recognition under the Leveson scheme. Once that is in place, it may take time before the generality of newspapers become members, but the system designed by Leveson operates by a series of incentives, so it will be more expensive to be out of it than in it."

Whether he will be described, in that first draft of history, as a traitor or as the voice of reason, he is still proud to be a journalist. He is even optimistic, he said, about the future of the press and rejects the idea that he should be reminding the public about the value of journalism at a time when much of the industry is financially challenged.

"It is an inconvenient truth that the Daily Mail, the Telegraph, and News International are making hundreds of millions of pounds. We should not forget there were journalists who believed it was their job to destroy lives. It went beyond the law, it's a moral and ethical failure."

Vanessa Thorpe

The beast of fanaticism

2013-03-23T12:30:29+00:00

Legendary Nigerian novelist Chinua Achebe died yesterday aged 82. In 1981, he addressed a writers’ conference at the University of Nigeria in Nsukka. Index on Censorship published this extraordinary speech the same year

Writers are by instinct — and, one might add (alas), experience — somewhat sceptical of governments. We fear them even when they bear gifts … This scepticism is healthy and appropriate … In the cosy optimism in which most of us elite Nigerians live and move and have our being, danger may seem rather far-fetched. But behind the smiling facade of the present dispensation slouches the rough beast of fanaticism — religious fanaticism, ethnic fanaticism and political fanaticism.

Let me illustrate briefly with what I have read and seen in the last two weeks alone. A columnist in one of our leading national dailies wrote approvingly of Iran as the one country in the Third World which has successfully checked the onslaught of both East and West with the effective weapon of religion. This was about two weeks ago. This week we have all read and heard that among the strange things happening in Iran was the execution of a poet, Sa’id Soltanpour, for crimes of “earthly corruption” and “war on God”.

It is hardly necessary to say more on the matter. Writers are natural sceptics and there is no way they can be safe in an atmosphere of religious fanaticism. I used to wonder why Bertrand Russell held that one of the greatest evils introduced into the world by religion was the notion of righteousness which, incidentally, the Jews must take credit for inventing. But looking at the contemporary world and contemporary Nigeria infested with all kinds of dangerous lunatics who believe in their own righteous justification to commit any crime in the name of God, we must understand what Bertrand Russell was talking about.

And now to political fanaticism. Do we need prophetic insight to see the deadly portents? And again the real source of worry is not the existence of fanaticism but the absence of any genuine force of public sentiment to check its manifestations and prevent a consolidation of incipient fascism.

The other day a state governor said to an airport press conference: “Damn it, I am the government!” And he received an ovation and delighted laughter instead of shocked silence.

Louis XIV of France said precisely the same thing more than 300 years ago. He not only ruined France, but two reigns later his descendant paid for it with his head in a revolution that unleashed a horrendous bloodbath. Perhaps an airport press conference is not the ideal place to argue the enlightenment and political sophistication of a country. Perhaps things are better in the sober, intellectual atmosphere of academe. If you think so, I have bad news for you. About the same time another chief executive told an audience at this university: “Politics is power, and nobody gives up power peacefully.” He was applauded. By academics! In a seat of enlightenment!

My concern here is not what politicians say or do, but the absence of a countervailing tradition of enlightened criticism and dissent. I am not talking about our accustomed factional and inter-party squabbles that are largely devoid of objective ideas and principle. I am saying that in this situation a writer, who must be free, whose second nature is to dance to a “different drummer” and not march like a boy scout, such a person has no choice really but to run great risks. And we had better know it and prepare for it.

CHINUA ACHEBE 1981

Chinua Achebe was a patron of Index on Censorship

The latest issue of Index’s magazine is Fallout: free speech and the economic crisis. Click here for subscription options and more.

The post The beast of fanaticism appeared first on Index on Censorship.

Charges under Reg 8 EIR: a Power Cut for Public Authorities

2013-03-23T12:22:23+00:00

In Kirklees Council v IC & Pali Ltd [2011] UKUT 104 (AAC) the Upper Tribunal held, in the context of property search information, that reg 8(2) EIR precluded an authority from charging for allowing applicants to inspect information in situ and that a charge was only permissible if copy documents were provided to the applicant or the information was accessed other than by means of in situ inspection. The First-tier Tribunal has revisited the application of the charging rule in reg 8 EIR, again in the context of property search information, in Leeds City Council v IC & APPS Claimants (EA/2012/0020-21) (judgment of 22 March 2013).

The requestors had requested all the information the Council held which would enable them to complete and answer the questions in the relevant property search form issued by the Law Society (the CON29R form). Some of this information was made available by enabling free public inspection, but not all of it. The Council charged, under reg 8(1), the requestors £22.50 for the fulfillment of their request. This was the same sum that the Council charged for completion of the CON29R form (although the request had been for the raw data and not for the Council to complete the form itself) and the costs were calculated on the basis of staff time etc, rather than solely on the costs of disbursements (such as photocopying). The primary question for the FTT was whether the non-disbursement costs could properly be the subject of a charge under reg 8 EIR.

The FTT held that they could not. There was no authority directly on the point – Kirklees not having had to decide this issue – and the FTT had primarily to decide the issue by reference to the principles underlying the Aarhus Convention, the Directive and the EIR. It considered that the Implementation Guidance to the Convention to be of assistance because it referred only charges within the disbursement category: at [52]-[53]. As to the Directive, the FTT found the judgment of the ECJ in Case C-217/97 Commission v Germany [1999] ECR I-5087 to be helpful, finding that the meaning of the judgment was clear: “The costs that can be imposed relate to the act of supplying information in order to comply with a request, not to the act of identifying or retrieving or collating the relevant material in the first place”: at [76]. The public authority is not, following Kirklees, entitled to charge for its evaluative and collation work so that it benefits from a failure to put in place proper systems to permit EIR requests to be dealt with by free public inspection: at [78].

Unsurprisingly, given the purpose of and recitals to the Directive, the FTT accepted that any approach to the interpretation of charges must be narrow to be consistent with the aim of increasing public access to environmental information. Any interpretation which permitted charges to include more than disbursement costs would have “significant adverse consequences” to that access. A public authority may not charge “for the cost of administrative tasks or administrative acts which may include, but are not necessarily limited to, the spent by staff in locating, retrieving or redacting the information requested”: at [96]-[99].

The FTT’s conclusion on that issue resolved the appeal against the Council, but it went on to indicate its view as to the reasonableness of the charge imposed by the Council in any event. It considered that £22.50 was not a reasonable charge within the meaning of reg 8(3) EIR. In particular, the Council had automatically completed the CON29R form itself and charged the standard rate rather than answering the specific request for the raw data, as well as providing data at a charge which was already available for free. The charge was calculated by reference to matters which should not have been taken into account: “the nature of the information, the motives and assumed means of the applicants, the use to which the information would be put, and the fact that no objections had been received to the CON29R fee”: at [102](ii). Various of the other factors the FTT considered at [102] may be of assistance in other disputes over the reasonableness of the charge, although if the charge remains limited to disbursements such challenges may be relatively rare. The Council was also criticised for a failure to comply with reg 8(8) in that it had not published a schedule of charges, or the basis for their calculation, which could be scrutinised for fairness and reasonableness and as a result lost the entitlement to levy a charge under reg 8(1): at [118]-[119].

The case provides some helpful clarity to an area of some practical importance to public authorities, and is of considerable utility to those requesting environmental information. It remains to be seen whether it triggers a rash of complaints to the Commissioner about the reasonableness of the copying and postage charges levied under reg 8(1) (although they must, of course, be published in advance under reg 8(8)), but there is no doubt that the judgment in Leeds should prompt all public authorities to examine their information systems and charging structures to ensure that they are genuinely restricting themselves to charging for disbursements.

Anya Proops appeared for the Information Commissioner.

Christopher Knight

“Gaming” can be avoided: bloggers can be protected from the Crime and Courts Bill

2013-03-23T11:00:00+00:00

(Blog) We’re told that politicians are concerned, exempting small and medium size businesses from the Bill could lead to “gaming”. That is, a large publisher could create small subsidiaries to avoid the Leveson sticks applying to them. We believe this can be avoided. The Companies Act anticipates “gaming”, and includes protections against it.

Groups unite to condemn Leveson law

2013-03-23T10:16:49+00:00

This letter, signed by Big Brother Watch and 19 others, appears in today’s Guardian.

Dear Editor,

The Leveson Inquiry was set up to address “the culture, practices and ethics of the press, including contacts between the press and politicians and the press and the police”. Our views diverge on whether the outcome of the Leveson process — and the plans for a new regulator — are the best way forward. But where we all agree is that current attempts at regulating blogs and other small independent news websites are critically flawed.

The government has defined a “relevant publisher” for the purposes of press regulation in a way that seeks to draft campaign groups and community-run websites covering neighbourhood planning applications and local council affairs and campaign groups into a regulator designed for the Guardian, Sun and Daily Mail.”

Even the smallest of websites will be threatened with the stick of punitive “exemplary damages” if they fall foul of a broad range of torts encompassing everything from libel to “breach of confidence”. The authors of these proposals should reflect on their remarkable achievement of uniting both Tom Watson and Rupert Murdoch in opposition.

This appears to be the outcome of a botched late-night drafting process and complete lack of consultation with bloggers, online journalists and social media users, who may now be caught in regulations which trample on grassroots democratic activity and Britain’s emerging digital economy.

Leveson was meant to be focussed on the impact of “Big Media”. In the end it may come to be seen as a damaging attack on Britain’s blogosphere, which rather than being a weakness in British politics, has proved time and time again that it is a real strength.

We will all continue to write, publish, campaign, cajole, amuse and irritate online. But we consider the current proposals a fundamental threat to doing just that.

Regards

Mark Ferguson, LabourList
Tim Montgomerie, ConservativeHome
Stephen Tall, LibDemVoice
Laurence Durnan, Political Scrapbook
Paul Staines, Editor, Guido Fawkes’ Blog
Harry Cole, News Editor, Guido Fawkes’ Blog
Alex Wickham, Reporter, Guido Fawkes’ Blog
Sunny Hundal, Liberal Conspiracy
Jag Singh, Messagespace
Neal Lawson, Compass
Nick Pickles, Director, Big Brother Watch
Jim Killock, Executive Director, Open Rights Group
Emma Burnell, ScarletStandard
Adam Bienkov
Luke Akehurst
James Bloodworth, Left Foot Forward
Jon Lansman, Left Futures
David Hencke, Exaro
Laurie Penny, New Statesman
Owen Jones

Could a Conservative Party lead by Theresa May drop the Data Protection Act?

2013-03-23T00:04:52+00:00

Last week, Home SecretaryÂ Theresa May made a speech that could fundamentally alter the Conservative Partyâ??s approach to human rights. The Party's currently policy position is that it would like to replace the Human Rights Act 1998 with its own Bill or Rights, but it would not derogate from the European Convention of Human Rights.

Theresa May has put that all in doubt. In her speech, she said:

â??â?¦And we need to stop human rights legislation interfering with our ability to fight crime and control immigration. Thatâ??s why, as our last manifesto promised, the next Conservative government will scrap the Human Rights Act, and itâ??s why we should also consider very carefully our relationship with the European Court of Human Rights and the Convention it enforces. â?¦ So by 2015 weâ??ll need a plan for dealing with the European Court of Human Rights. And yes, I want to be clear that all options â?? including leaving the Convention altogether â?? should be on the table. (my emphasis)

Obviously, with UKIP snapping at the Conservative Partyâ??s heels, Mrs May's anti-European rhetoric went down well with those elements that are allergic to anything European. However, it is only when you deconstruct the implications of Mrs Mayâ??s message, do theÂ risks emerge.

The first point to stress is the European Convention on Human Rights (ECHR) is not â??Europeanâ??; it is as British as roast beef and Yorkshire pud. The Council of Europe which provides judicial oversight of the Convention through its Court and Parliament involves 47 European States;Â the Council of Europe was formed by the Treaty of London 1947. The ECHR is most important product of the Council of Europe; itÂ was drafted by UK Government Civil Servants and identifies the characteristics of a democratic state and promotes the rule of law.

Whenever you read of the ECHR text, think â??totalitarian regimeâ??. For instance, Article 1 (no slave labour; abolished in the UK in 1833) and Article 2 (right to life) were absent from Hitlerâ??s concentration camps and Stalinâ??s gulags. Article 6 (right to a fair trial; idea established in the UK by Magna Carta in 1216) and Article 8 (respect for private life); both are absent when the judiciary is beholden to a dictator or when the writ of a secret police force runs riot.

When Mrs May says complete withdrawal from the ECHR is on the cards, she is opening the door to a rangeÂ of possibilities that go far wider than her concerns which are limited (in her speech anyway) to immigration or crime. For instance,Â such a move could permit a return of capital punishment, imprisonment without charge, extra-ordinary rendition or, as the Americans used to say of Abu GhraibÂ "enhanced interrogation techniques" and "alternative set of procedures".

Eric Howe, the First Data Protection Registrar, in his valedictory Annual Report in 1994 got it spot on. He noted that the history of Europe was littered with totalitarian regimes and concluded that â??democracy, liberty and freedom were fragile flowersâ??. In my view, the ECHR is the earth that sustains those flowers; pluck them, and these flowers eventually wither.

So, if the UK actually withdraws from all of the ECHR, perhaps under a future Prime Minister May, it is alsoÂ withdrawing from the institutions and Conventions that depend on, or support, the ECHR. This includes Council of Europe Convention No 108, which derives its authority from Article 8 (respect for private life) of the ECHR. And if Convention No 108 goes, then so does the UKâ??s need for a Data Protection Act.

However, ifÂ Prime MinisterÂ May does withdraw from the ECHR, I suspect losing data protection could be the least of our worries.

Refererences

Mrs May's speech: http://conservativehome.blogs.com/thetorydiary/2013/03/full-text-of-theresa-mays-speech-we-will-win-by-being-the-party-for-all.html

Blogs likely to be excluded from press reforms by House of Lords

2013-03-22T20:00:02+00:00

Prominent web writers warn punitive measures would force many of them to close down, thereby stifling transparency

Fears that bloggers and small-scale news websites will be dragged into the new proposed system of press regulation, so facing crippling costs, appeared to be lifting on Friday when Labour and the Liberal Democrats agreed to table last-minute amendments in the Lords to make it clear they will be excluded.

The fear that bloggers and small-scale enterprises would be drawn into the Leveson net of regulation has provoked outrage.

A diverse group of bloggers including ConservativeHome's Tim Montgomerie, LabourList's Mark Ferguson, Guido Fawkes's Paul Staines, Lib Dem Voice's Stephen Tall and Political Scrapbook's Laurence Durnan, in a letter to the Guardian, warn of the unforeseen consequences of the law.

They write: "Even the smallest of websites will be threatened with the stick of punitive 'exemplary damages' if they fall foul of a broad range of torts encompassing everything from libel to 'breach of confidence'."

"The authors of these proposals should reflect on their remarkable achievement of uniting both Tom Watson and Rupert Murdoch in opposition." They add this appears to be the outcome of a botched late-night drafting process and complete lack of consultation with bloggers, online journalists and social media users, who may now be caught in regulations which trample on grassroots democratic activity and Britain's emerging digital economy.

But Labour and Lib Dem sources said they would be tabling manuscript amendments to the crime and courts bill in the Lords to remove the threat.

Two separate proposals have been suggested, either removing small businesses from the ambit of the proposed legislation or making it clear that not for profit groups would be excluded.

It is thought both proposals in the eyes of civil servants have technical deficiencies, or will prevent opportunities for big media to circumvent the exemplary damages legislation. Instead civil servants are working on proposals based on either size or turn-over.

It is understood cross party agreement has been delayed due to a reluctance from the Conservative ministers to become involved. The Conservative handling of the issue over the past fortnight has left many observers perplexed. Discussions are also being held on whether there is any virtue in the three party leaders meeting the newspaper groups next week to persuade them of the need to co-operate with the proposed new system of self-regulation.

Lord Black, the executive director of the Telegraph Media Group, is hoping to persuade peers on Monday that it would be "wrong in principle" to create a system allowing courts to award exemplary damages against newspapers who remain outside the approved regulator.

Black, who is a Tory peer and former director of the press complaints commission, was one of the most influential players behind the scenes in the newspaper negotiations with the government in the run up to Monday's deal.

Newspapers have been split over the Leveson deal but Black's bid to get amendments on exemplary damages removed will have the unanimous support of national newspapers – which have received legal advice from top barristers saying that the creation of a special class of punishment for one type of defendant would be contrary to Article 10 of the European Convention on Human Rights.

The House of the Lords will debate the Leveson amendments which have been tacked on to the crime and courts bill in a bid to get royal assent before the end of this parliamentary session.

There is not expected to be a vote on the matter and sources say Black will not be moving any amendments, "but others may".

A steering group of national newspapers, headed by the legal director of Trinity Mirror Group Paul Vickers, meets on Wednesday but the attitude of the big three groups appears to be hardening. One senior executive from one newspaper said it would be "a badge of honour" to be part of the breakaway group that gave "two fingers to Cameron".

The political fallout from the Leveson deal sealed on Monday continueswith former Lib Dem leader Paddy Ashdown claiming David Cameron made a colossal "strategic blunder" in pulling out of talks on the creation of a new regulator for the press.

Lord Ashdown said the Prime Minister had simultaneously damaged his standing with his own MPs, angered his supporters in the newspapers, and strained relations with his Lib Dem coalition partners.

In an interview with BBC Radio 4's The Week In Westminster, he said Mr Cameron managed to achieve the "Tory nightmare" of forcing Nick Clegg to line up with Labour.

"I have not seen an avoidable strategic blunder made by a British prime minister or indeed the leader of a British political party which matches that of Mr Cameron over Leveson," he said .

"He marched his troops up to the top of the hill and then he had to march them back down again.

"In terms of strategy, this seems to me to make the Grand Old Duke of York look like a military genius."

Patrick Wintour

Lisa O'Carroll

Ministers admit trying to forcibly remove tens of thousands of people

2013-03-22T16:56:11+00:00

System 'in chaos' as nearly half of enforced removals are cancelled, many of them after successful legal challenges

The government has admitted that it has tried to forcibly remove tens of thousands of people from the UK unlawfully.

The figures were disclosed to the Guardian after a freedom of information request which showed that almost half of the enforced removals the government attempted were cancelled.

Critics say the high number of cancellations and attempted unlawful removals are signs of a system in chaos.

In 2012, 14,435 enforced removals took place but between January and November 11,085 were cancelled. The figure for the full year is likely to be about 12,000 cancelled removals, almost half of the total.

Of those cancelled, 4,569 were halted because the courts said they were unlawful. In the past five years, 48,858 removals have been cancelled, 22,079 of them owing to successful legal challenges.

The figures relate to asylum seekers and non-asylum seekers; some people may have been subjected to more than one cancelled removal attempt. There have also been 3,753 cancelled deportations of people who have committed criminal offences, 1,450 of which were because of successful legal challenges.

Some enforced removals were cancelled because of problems with escorting the people out of the country. In 2011, 114 removals were cancelled owing to escort problems but last year this figure quadrupled to 450.

The high number of cancelled removals has a variety of implications. There is an estimated cost ofThe administration costs of removing each person is £186 for each cancelled removal – a total cost of almost £10m over the last five years, excluding the cost of extra detention, courts and cancelled flights. In his recent evidence to the House of Lords justice committee, the lord chief justice said that immigration, asylum and nationality judicial reviews took up a vast amount of the court's time.

Keith Vaz, chair of the Commons home affairs select committee, said: "I am very concerned to note the number of enforced removals cancelled since 2008.

"These cancellations cause distress and uncertainty for deportees. The committee has been very clear that the quality of initial decision-making by the UK Border Agency must be improved. It is unacceptable that the number cancelled due to escort problems has quadrupled in just one year. UKBA needs to look carefully at their procurement processes and ensure they keep an up-to-date register of high-risk companies, as the committee recommended."

James Packer, head of immigration at Duncan Lewis solicitors, said a system in which almost half of enforced removals were cancelled, many because of successful legal challenges, could not be described as working effectively.

"UKBA consistently makes decisions to remove on the basis of information that is out of date – often years out of date – and then systematically delays its consideration of any new information until the 11th hour. A system run in this manner will inevitably result in last-minute cancellations of removal in many cases. This is a separate issue to the errors that pervade the shambolic administration of the UK's immigration system."

Emma Mlotshwa, of the charity Medical Justice, which provides support to detainees, many of whom face enforced removal, said: "This is a system in chaos. We deal with countless cases of enforced removals which are cancelled. The whole thing causes needless trauma to detainees. Taking someone to the plane and then back to a detention centre, keeping them under imminent threat of deportation, is inhuman and treats detainees no better than cargo."

UKBA said: "Where UKBA and the courts find that an individual has no right to be in the UK we expect them to leave. Where they refuse, we will enforce their removal.

"We will investigate any allegations that contractors are not meeting UKBA's expectations.

"If standards are not met then UKBA can take appropriate action to recoup payments in accordance with the agreed contractual arrangements. 'Escorting issues' cover a range of issues and do not relate on every occasion to a failure by the contractor." Ukba added that some of those whose enforced removals were halted were ultimately found not to be entitled to stay in the UK and that most air fares were refundable or rebookable.

Case study: Winston, 32, refugee from Zimbabwe

"I was a member of the Movement for Democratic Change and was attacked and beaten by government forces. My house was burnt down and my family was scattered. Two weeks after I arrived in the UK in 2007 my asylum claim was refused. I was placed in detention between March and November 2010. UKBA tried to remove me four times. Each time it was very traumatic. I was placed in an isolation cell before being taken to the airport. All I could think about was that the British government was going to deliver me back into the hands of the people who had persecuted me. Each time I was taken to the airport my removal was cancelled. In July 2012 I was granted refugee status."

Diane Taylor

Why I would go to jail for my journalistic beliefs

2013-03-22T16:22:32+00:00

“Journalism today is not about recording the facts. It ought to be a battle against barbarity and obscurity”, said Greek investigative journalist and award winner Kostas Vaxevanis at this week’s Index on Censorship Freedom of Expression Awards. Read the rest of his compelling speech here

This article was originally published on the Guardian’s Comment is free

Journalism is often either invested with magic powers or blamed for all that is wrong in the world. Both positions are wrong. Journalism is the way, lonely most of the times, of truth. Often colleagues discuss journalistic objectivity as a mausoleum where we kneel down. There is no objectivity. What matters is the decency of our subjectivity: how decent, honest and professional we stay in a world where everything is relative. How determined we are to fight against set-ups in this world of overloaded information.

It is often said: “Journalism is printing what someone else does not want to print. Everything else is public relations.” This has to be done with respect for human rights and people’s dignity. Nevertheless it has to be done.

For the past few years, journalism in Greece has had nothing to do with the truth. A corrupted elite rules the country. At its centre lie businessmen who are unaccountable. They act as they please and usually make deals with the government. The politicians then legislate as if they were common mobsters, in order to serve and many times legitimise those businessmen. In the end, the journalists reveal nothing.

There are countless examples. My arrest is one of them. For two years the government stubbornly refused to use the Lagarde list of possible tax dodgers. When I published it, I was arrested by the special branch and led to court. I was acquitted but the district attorney’s office cancelled the court’s decision as it was probably expecting a different one. Around the same time, the Guardian disclosed the fact that the Greek police had tortured individuals. The Greek media did not mention anything. The Greek minister came to sue the newspaper on account of telling the truth.

A few days earlier, Hot Doc, the magazine I publish, had revealed the fact that the director of New Democracy, the political party that is led by the Greek prime minister, had been an affiliate of the Greek junta. The government refused to answer. The Greek media made no reference to this fact. Yet the Greek constitution demands respect to the press.

The Greek Republic has become a crossbred republic. You have the right to vote every four years, but those who govern pass provocative laws, for which the public will hear nothing from the media. The ministers themselves are in a constant state of impunity because of a phenomenal law that grants them immunity.

Media barons work in close partnership with the political system. They define what is legal and what should become known to the public. Recently, Reuters had a very harsh experience after trying to conduct a research on the state of the Greek media. An attack was launched against Reuters to make it appear as if wanted to destroy Greece.

It is often said in Greece that there is no muzzling of the press since Vaxevanis can write whatever he wants. But freedom of the press is not defined by a snapshot of the greater narrative but by the environment in which journalism can operate.

We launched Hot Doc exactly one year ago. Apart from the legal adventures we have faced so far, they’ve also tried to make us appear as journalists of a specific political shade, unreliable and collaborating with the secret services. Five people attacked me in my home and the Greek police made it look like an attempted burglary. They try to intimidate and eliminate any independent voice. Even though Greeks are eating from the garbage bins, the Greek National Council for Radio and Television prohibited TV from showing pictures of poverty.

We live in a European Union of stark contrasts. Europe cannot overlook its culture or its tradition of freedom. I’m proud I was born in a country that gave birth to democracy and civilisation. But democracy is like bicycle: if you don’t move forward, you will fall. Journalism today is not about recording the facts. It ought to be a battle against barbarity and obscurity. On this continent we must rediscover the universal ideas and of course the role of journalism.

On 6 June I will stand trial again for the disclosure of the Lagarde list. I don’t know what the outcome of the trial will be. I want to state that if I am going to be convicted I will not appeal but I will ask to be put in jail. I want to be a journalist in a country that is not afraid of the truth. I care for the truth of the people not that of a caste of corrupted politicians and businessmen. I do not want the people of my country to read foreign newspapers to learn what happened in their own country, as it was happening during the junta. I don’t want myself or any other journalist to in danger, because of what I reveal. I don’t want to be in danger of being presented as a “suspicious” journalist, just for stating self-evident facts, by the very propagandists of the power structure that brought my country on the edge. I want to be able to say what I think without the risk of my physical or psychological damage.

They want a journalism that is muzzled, we want a socially sensitive and truthful journalism.

If you think the French press is stifled by regulation, ask Jérôme Cahuzac | Agnès Poirier

2013-03-22T15:56:23+00:00

Some worry that regulation will make British newspapers like France's. Even if it did, politicians would still be held to account

The same old song has been playing since the beginning of the Leveson inquiry, and now that press regulation has finally materialised and is on the table, it's getting louder. Many of my British colleagues share the views expressed by Daniel Hannan on the Telegraph website: if Britain adopts the new regulatory framework, it will become like France, with her "servile", "supine" and "conformist" press. Oh, and terribly pro-European too. This alone, surely, is a vision of hell for a Telegraph journalist.

According to Hannan, a press that receives public subsidies cannot "deviate from the approved line on questions of tax, immigration, Europe and so on", and be independent. As for French privacy laws, Hannan finds nothing good in them: "What begins with an attempt to protect privacy ends with politicians deciding which opinions are acceptable."

Hannan confuses laws with culture. No press regulation, royal charter or statutory law could ever dent the nature of British journalism which is – culturally – incisive, inquisitive and unyielding. Likewise, an end of public subsidies to the French press and the scrapping of privacy laws wouldn't suddenly make French journalists less deferential and more voyeuristic.

French journalists' respect for institutions and the people who represent them, for better and for worse, mirrors that of French society at large. The French are respectful of institutions they have ardently fought for since 1789. Charles I may have lost his head before Louis XVI, as Margaret Thatcher kindly reminded François Mitterrand during the celebrations of the bicentenary of the French revolution in Paris, yet there are still hereditary peers in the House of Lords. British journalists, and British society on the whole, have much less respect for their parliamentary monarchy and their political class. Less respect means more acuity but also more spite – there lies a peculiarly British, and not always entirely rational, pleasure in seeing the powerful fall and be publically shamed.

Again, on continental newspaper "pro-EU" coverage, Hannan is mistaken. No press regulation could dictate British editors to suddenly write differently about European affairs. It couldn't even prevent tabloids from publishing their notorious fantasy EU stories. British attitudes towards Europe are the product of history, and culture. The French press may appear as ridiculously pro-European to Hannan as the British press, from the Daily Mail to the BBC, can in French eyes look ridiculously reverential towards the Queen.

There exists a different culture on either side of the Channel – British journalists are perhaps quicker to bark than their French counterparts, butthat doesn't mean they actually bite. While no publication in Britain dared reprint the Danish cartoons in 2006, in fear or reprisals, the satirical weekly Charlie Hebdo reprinted them in the name of freedom of expression. Former French president Nicolas Sarkozy was on Thursday evening placed under formal investigation for "abuse of a vulnerable person" in the L'Oréal heir scandal saga, following the investigation of French news website Médiapart, set up by former Le Monde editor Edwy Plenel.

A few days ago, France's budget minister Jérôme Cahuzac resigned from the government following another Médiapart journalistic investigation. Last September, Libération featured France's richest entrepreneur, Bernard Arnault, on its cover with the headline: "Sod off, you rich arsehole!" Arnault was accused of wanting to move to Belgium for tax reasons. France may not have George Orwell but it does have Emile Zola.

Besides, when France's fourth estate shows weakness, the people take over, in the streets, and finish the job of ousting politicians and scrapping bills. If British newspapers have more teeth, it may only be to compensate for the lack of people's direct political participation.

My British colleagues shouldn't panic about press regulation. With the press tycoons Britain has, you need one. If this restraints the lynching and hacking mentality of some of them, it could even be a good thing. Fear not, no royal charter will ever undermine the indomitable nature of British journalists, which will continue to be universally admired.

Agnès Poirier

Politics Weekly podcast: Cyprus; the budget; and press regulation

2013-03-22T15:15:24+00:00

George Osborne pitched his budget this week as one for those who aspire to work hard and own their own homes. His controversial "help-to-buy" plan harked back to the days of his hero Margaret Thatcher, but critics have been quick to worry about another credit-fueled property bubble. Meanwhile the underlying economic figures made grim reading. The gaping budget deficit has barely narrowed in the past financial year and borrowing is set to keep rising for far longer than planned.

On the panel to discuss this: Observer columnist Andrew Rawnsley, Guardian columnist Michael White and Guardian economics correspondent Phillip Inman.

Also this week: the crisis in the eurozone has flared up once more, this time in Cyprus. The Mediterranean island state only joined the euro in 2008 and was left badly exposed by the crisis in its neighbour Greece. With its banks shut for the week, Cypriot politicians have been left with a choice from the EU of taking money directly out of their voters bank accounts or going bust completely.

And finally: after months of deliberation on the Leveson report, a political deal was finally done this week on press regulation. But does it amount to state regulation? And will any of the newspapers at the heart of the hacking scandal actually sign up to the proposed new regulator? We hear from The Economist's John Micklethwaite who has deep misgivings about the new rules - and the manner in which they were drawn up.

Leave your thoughts below.

Press regulation: the royal charter deal is a move towards a better democracy | David Puttnam

2013-03-22T14:10:30+00:00

We have neglected our duty of care when it comes to the relationship between the media and democratic values

This has been a fairly historic week in the UK. In fact, depending on your point of view, or maybe your pay cheque, it's either been the end of 300 years of press freedom, or an early but significant victory in the battle to ensure a free and fair media, a media that genuinely serve the interests of citizens, and the development of an ever better informed democracy.

In the early hours of Monday morning, an agreement was reached by all three political parties to create a royal charter that would, in effect, both underpin the regulation of the British press and guarantee its independence from government.

Go back a little under two years and I think it's fair to say that few people in Britain, or anywhere else, could possibly have imagined that when news became public that a missing girl's phone had been "hacked" the result would be a horrifying and long drawn-out exposure of important sections of the UK media; one that has at times beggared belief in its allegations of criminal behaviour by those who, for many years, had been thought of as being all but "untouchable".

Here were a relatively small, but immensely powerful, clique of people who appear to have acknowledged no rules other than those that accelerated their personal and political ambitions.

In recent days, I've been reflecting on some of the turmoil of the past two years. There are a number of common problems that affect the whole of our media spectrum, all of which have at some point to be wrestled to the ground if we're to ever move beyond what I see as this potentially self-destructive phase in our historical development. The first is the issue of media plurality. The situation in the UK (as in Italy) continues to be insupportable, yet somewhat like "serfs", we've seemed resigned to suffering it, as if no serious alternative existed.

One example: the free cash flow that will be generated by BSkyB over the next few years will unquestionably make it the dominant media player in the UK, and possibly the whole of Europe's content acquisition and distribution business – with all the implications for plurality and choice that necessarily go with it.

In my view that will remain the case despite, for example, the power of Apple in technological hardware, Google in search, and Facebook in social media. None of those companies is, for the foreseeable future, seriously interested in challenging BSkyB on its home turf of buying, distributing, aggregating and, increasingly making, premium content.

Only a fool would conclude that News Corporation's designs on BSkyB have been forever abandoned. All the more so given the imminent split between its entertainment and print assets – and the fact that very strong growth at the US cable networks makes the former unit more powerful than ever.

Which leads, quite naturally, to the implications surrounding "foreign and non-domiciled ownership" – the social and political impact of the "national media" being something very different from that of, for example, the automobile industry; yet here again we have been lulled into accepting some bizarre form of commercial equivalence. We have allowed a situation to develop that would be wholly unacceptable in the US as well as the vast majority of other western democracies.

I believe there is a need to totally re-evaluate the way we look at the relationship between the media and democracy. Over the past decade or so, a great deal of thinking has developed around the notion of "a duty of care" – as it relates to a number of aspects of civil society. This has principally focused on obvious areas, such as our empathetic response to the elderly and infirm, to children and young people, to our service personnel. It has seldom, if ever, extended to equally important arguments around the fragility of democracy itself: to the notion that honesty, accuracy and impartiality are fundamental to the process of building and embedding informed, participatory societies. I believe our developing concept of a duty of care should be extended to "a care" for our shared but fragile democratic values.

After all, the absence of a duty of care within many professions can amount to accusations of negligence, and that being the case, are we really comfortable with the thought that we are being, in effect, negligent in regard to the long-term health of our own democracies, and the values that underpin them?

For those who remain in doubt, the clearest possible case is made out in the Hansard Society's recently published Audit of Political Engagement 9, Part Two, Media and Politics.

I hope the events of this past week signify that we have collectively turned the page, and that politicians of all persuasions now recognise that the regulation of the media, entirely independent of government, and backed by appropriate powers of civil enforcement, is one of the fundamental guarantors of a healthy democracy in the 21st century.

This is an edited extract from a speech Lord Puttnam is giving today at the Institute of International and European Affairs, Dublin

David Puttnam

'Chilling shadow' cast by Supreme Court secrecy ruling

2013-03-22T12:55:00+00:00

Campaigners raise concerns over landmark ruling by senior judges that they have the power to consider secret evidence

Oman's sultan pardons dissidents who were jailed for defaming him

2013-03-22T11:35:53+00:00

Qaboos bin Said al Said issues royal pardon to estimated 50 protesters in effort to salve unrest inspired by Arab spring

The sultan of Oman has pardoned all dissidents who were jailed for defaming him or taking part in protests, in the latest effort to defuse unrest inspired by the Arab spring.

Oman's state news agency did not say how many prisoners would be freed, but activists say courts sentenced at least 50 dissidents to jail terms of up to 18 months last year.

"His Majesty Sultan Qaboos has issued a royal pardon for those convicted of defamation, information technology crimes and unauthorised rallies," the agency said.

Last week a court freed eight activists who went on hunger strike in February saying they had been sentenced unfairly. The court ordered a retrial.

In recent months the government has sought to ease public discontent by announcing plans to limit the number of foreign workers and sharply raise the minimum wage for citizens in a drive to increase their employment.

Oman, which sits on the Strait of Hormuz through which about 40% of the world's seaborne oil exports passes, has also pledged to create tens of thousands of public sector jobs. But delays in implementing the promises have kept protests simmering, with some anger focused on the 72-year-old sultan.

Something for the weekend?

2013-03-22T11:17:03+00:00

I have enjoyed reading this Parliamentary report, which says little that is new and contains recommendations that are likely to be ~~mostly ignored~~ duly noted with care and concern by the Government. There may well be one significant recommendation that the Government will strongly support though – which is to ignore a recommendation in the Leveson Report that the ICO be reconstituted it as an Information Commission, led by a Board of Commissioners with suitably broad expertise. Evidently, the current model is still fit for purpose – although it ought to be accountable directly to (and funded by) Parliament, rather than be funded by the Ministry of Justice.

Two key issues struck me as I read it.

First, funding for the ICO’s Freedom of Information work has been slashed with severity that would shame even Quentin Tarantino. That budget has been cut by 23% from £5.5 million in 2011–12 to £4.25 million in 2012–13. In line with public spending targets, there will be a further cut of 6% in 2013–14, and the Ministry of Justice has asked for a business case showing how the work would be impacted by a further 5% cut in that year.

The message to those who fancy exercising their FOI rights in future is that they should be prepared to dig deep into their own pockets to fund the civil litigation that could be necessary to help enforce their statutory rights. The ICO is unlikely to be able to intervene to a significant extent on their behalf. Public authorities are hardly likely to be able to fund many FOI posts, either. The message to public authorities who fancy ignoring an FOI request in future is that such temptation may be even harder to resist.

Second, the public concern at unlawful data handling practices has not been reflected by the penalties that the courts impose. Accordingly, it may not really matter if the maximum fine levels are dramatically increased – current evidence is that the actual level of fines will continue to remain at the bottom end. The reason for this is clear – the level of the fine depends on the means of the defendant, and in most cases, prosecutions are launched against people who are involved in domestic disputes and who have very few savings anyway.

Behaviours might well change, though, if Section 55 offences became “recordable offences”. These are the offences that are recorded on the Police National Computer, and where those who are prosecuted also have their fingerprints and DNA samples recorded for whatever period the police currently set. That might focus a few minds as to the severity of such offences.

The Government continues to refuse to allow custodial sentences for DPA offences because other charges are capable of being made against defendants that do permit custodial sentences to be imposed (paragraph 43). These charges include:

· Unlawful interception of communications: Regulation of Investigatory Powers Act 2000

· Unauthorised access to computer material: Computer Misuse Act 1990

· Dishonestly making a false representation: Fraud Act 2006

· Bribing another or being bribed: Bribery Act 2010

· Unauthorised access to computer material: Contrary to section 1 of the Computer Misuse Act 1990

· Unauthorised access to computer material with intent to commit another offence: Contrary to section 2 of the Computer Misuse Act 1990

· Phone hacking: Regulation of Investigatory Powers Act 2000

· Misconduct in public office: common law offence

· Inchoate and accessory offences including attempt and conspiracy

This is an interesting point, and I would love an academic to set his students the research task of identifying how these offences have been prosecuted over the past few years (should the CPS also have been able to have charged the defendant with a Section 55 offence), what penalties have been imposed and whether they really have served as an effective deterrent.

If you have not already done so, you might like to read the report this weekend.

Source:

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/962/962.pdf

Budget Openness: Stories from ASEAN

2013-03-22T09:56:30+00:00

As a part of its commitment to government transparency, the Government of Indonesia (represented by the President’s Delivery Unit for Development Monitoring and Oversight), National Secretariat of FITRA (The Indonesian Forum for Budget Transparency, a CSO concerned with budget transparency in Indonesia), and International Budget Partnership, recently launched Open Budget Index (OBI) Survey Results in the ASEAN Region on February 26-27, 2013. This event was intended to introduce the OBI and its methodology and to become a form of regional outreach of International Budget Partnership in ASEAN Region.

The guests were government officials and civil society representatives from ASEAN Countries. They shared their experiences about dealing with budget openness during the panel sessions and focus group discussion (FGD) sessions.

Based on their presentations in the panel session and FGD sessions, there are two categories of countries in the region in terms of budget openness. The first category consists of countries that have political will and legal instruments in budget openness, but experience difficulties with the implementation. South Korea, Indonesia, and the Philippines are included in this category. The second category consists of countries whose governments lack political will in budget openness and have less concrete efforts in pursuing fiscal transparency. Malaysia, Singapore, Thailand, Vietnam, Myanmar, Cambodia, Brunei Darussalam, and Laos all fall into this second category.

The problems faced by the countries in the first category are more technical rather than substantial. Those countries have the legal basis for budget openness, but technical issues hinder implementation. Such issues vary, from the sudden shock of the bureaucrats managing an administration with an “open” culture to the lack of access to technology. Even countries like South Korea experiences difficult situation during the application of budget openness; it still triggers friction between government bodies and other parties, such as legislative institutions and CSOs. Those countries need technical assistance from more experienced countries dealing with openness issues. Moreover, they need to change the culture in their administrations that promote openness.

Different dynamics take place in the countries of the second category. The governments still perceive budget information as a sensitive political issue. The ruling governments are concerned about the risk that the opposing parties would use the budget for political purposes. This situation is worsened by the lack of awareness; they have not realized the importance of their right to know how their governments gain revenue and where that money is spent.

Consequently, the CSOs in the second category continuously promote the importance of budget transparency. They hope that the people will become more aware of this issue, and that demand will grow afterwards. Encouragement from international and regional communities, such as ASEAN, is expected to complement this action, since it will create an additional reason for the countries to show good intention in opening their budget information.

One surprising fact is that, based on the FGD results, both the governments and CSO representatives were aware about the importance of budget openness. They understood the importance of budget openness and how it requires citizen oversight and cultivate government’s accountability. There is a common belief that a transparent budget will enable better allocation of funds and resources that will trigger improvements in people’s lives. Thus, we can see that these countries do care about the importance of budget and fiscal transparency. They are in need of encouragement and assistance, both from inside and outside their countries.

Another notable outcome from the sessions was the need for open budget as a regional norm in ASEAN and the OGP to support it. The European Union, for example, considers including Open Budget Index as part of its accession criteria. Meanwhile, the African Union is developing their regional standards of budget openness. So, perhaps the ASEAN could initiate similar policies as well.

The OBI event became a place for governments and CSOs to share their experiences and solutions to improve budget openness in their countries. From this event, we hope that budget openness will be a shared norm in the region – and trigger positive changes in the realm of transparency and accountability within the governments in ASEAN.

Image source: Open Budget Index Map, International Budget Partnership, via Flickr

Why I would go to jail for my journalistic beliefs | Kostas Vaxevanis

2013-03-22T09:45:01+00:00

Journalism in Greece has had nothing to do with the truth of late, as my trial for publishing a list of potential tax dodgers shows

It is often said: "Journalism is printing what someone else does not want to print. Everything else is public relations." This has to be done with respect for human rights and people's dignity. Nevertheless it has to be done.

There are countless examples. My arrest is one of them. For two years the government stubbornly refused to use the Lagarde list of possible tax dodgers. When I published it, I was arrested by the special branch and led to court. I was acquitted but the district attorney's office cancelled the court's decision as it was probably expecting a different one. Around the same time, the Guardian disclosed the fact that the Greek police had tortured individuals. The Greek media did not mention anything. The Greek minister came to sue the newspaper on account of telling the truth.

We launched Hot Doc exactly one year ago. Apart from the legal adventures we have faced so far, they've also tried to make us appear as journalists of a specific political shade, unreliable and collaborating with the secret services. Five people attacked me in my home and the Greek police made it look like an attempted burglary. They try to intimidate and eliminate any independent voice. Even though Greeks are eating from the garbage bins, the Greek National Council for Radio and Television prohibited TV from showing pictures of poverty.

We live in a European Union of stark contrasts. Europe cannot overlook its culture or its tradition of freedom. I'm proud I was born in a country that gave birth to democracy and civilisation. But democracy is like bicycle: if you don't move forward, you will fall. Journalism today is not about recording the facts. It ought to be a battle against barbarity and obscurity. On this continent we must rediscover the universal ideas and of course the role of journalism.

On 6 June I will stand trial again for the disclosure of the Lagarde list. I don't know what the outcome of the trial will be. I want to state that if I am going to be convicted I will not appeal but I will ask to be put in jail. I want to be a journalist in a country that is not afraid of the truth. I care for the truth of the people not that of a caste of corrupted politicians and businessmen. I do not want the people of my country to read foreign newspapers to learn what happened in their own country, as it was happening during the junta. I don't want myself or any other journalist to in danger, because of what I reveal. I don't want to be in danger of being presented as a "suspicious" journalist, just for stating self-evident facts, by the very propagandists of the power structure that brought my country on the edge. I want to be able to say what I think without the risk of my physical or psychological damage.

They want a journalism that is muzzled, we want a socially sensitive and truthful journalism.

Greek investigative journalist Kostas Vaxevanis was awarded the 2012 Index on Censorship Journalism award, sponsored by the Guardian. This is an extract from his acceptance speech

Kostas Vaxevanis

Joint letter in The Guardian on press regulation

2013-03-22T09:00:00+00:00

(Correspondence) (The Guardian, 2013-03-22) Dear Editor, The Leveson Inquiry was set up to address "the culture, pr…

Winners – Index Awards 2013

2013-03-21T21:50:39+00:00

Pakistani schoolgirl Malala Yousafzai, Greek journalist Kostas Vaxevanis, Syrian internet activist Bassel Khartabil and South African photographer Zanele Muholi were honoured at the Index on Censorship Freedom of Expression Awards in London this evening.

The ceremony was hosted by Index’s Chair Jonathan Dimbleby who dedicated the evening to, ‘a celebration of freedom of expression – that fundamental human right to write, blog, tweet, speak out, protest and create art and literature and music’.

Index CEO Kirsty Hughes said: ‘This year’s winners have shown incredible bravery and courage in the face of extreme adversity – they are an inspiration to all of us who value free speech.’

In the keynote speech, actor Simon Callow declared that ‘the price of liberty is eternal vigilance – Index on Censorship pays that price’. Fellow actor Juliet Stevenson also addressed the ceremony saying: ‘the right to free speech depends on speaking about that right and arguing for it – that’s what Index does’.

These were the last awards as Index Chair for Jonathan Dimbleby. He introduced incoming Chair, journalist David Aaronovitch, who said about his new role: “The world is changing rapidly and we are, perhaps more than ever, confused about free expression and in danger of surrendering it. That’s why I am honoured to become Chair of Index on Censorship, which challenges threats to free speech, day in day out.”

THE WINNERS
Doughty Street Advocacy award: Malala Yousafzai
In October 2012, a Taliban gunman shot education campaigner Malala Yousafzai in the head and chest for her activism, as she was returning home from school in Pakistan’s Swat district. After months of treatment, she returned to school in Birmingham earlier this week. The schoolgirl’s father, Ziauddin Yousafzai, accepted the award on his daughter’s behalf saying: ‘I want to give a message to the world. I didn’t do anything special. As a father, I did one thing, I gave her the right of freedom of expression. All fathers and mothers, give your daughters and sons freedom of expression. Freedom of expression is a most important right. The solution of any conflict is to say the right thing, to speak the truth.’

Journalism award sponsored by the Guardian: Kostas Vaxevanis
Greek investigative journalist Kostas Vaxevanis was arrested in October 2012, days after he published the “Lagarde List” of wealthy Greeks with Swiss bank accounts in his weekly magazine Hot Doc. He was found not guilty of breaking data privacy laws in November 2012, but the Athens public prosecutor subsequently ordered a retrial. Accepting the award, Kostas said: ‘Journalism has been either invested with magic powers, or has been blamed for everything. Both positions are wrong. Journalism is the way, lonely most of the times, of truth.’
Read Kostas Vaxevanis’s acceptance speech at Comment is Free

Digital freedom award sponsored by Google: Bassel Khartabil
Palestinian-born Syrian software engineer Bassel Khartabil is a champion of web freedom and a computer engineer, who specialises in the development of open source software. Khartabil has been held in prison in Syria for over a year. Accepting the award on his behalf, his friend Dana Trometer said: ‘Bassel is aware of this award and he would like to thank the judges and audience for trusting him with such an honour. He would also like to pay respect to all the victims of the struggle for freedom of speech, and, especially for those non-violent youths who refused to carry arms and deserve all the credit for this award.’
Read Google’s William Echikson on Bassel Khartabil

Index Arts award: Zanele Muholi
South African photographer and LGBT activist Zanele Muholi challenges traditional perceptions of the black female body — and specifically black lesbians — through her work. She has faced considerable opposition in South Africa where lesbians have been the targets of horrendous hate crimes including murders and “corrective rape”. Dedicating the award to two friends who were victims of hate crimes and later succumbed to HIV complications, Muholi said: ‘To all the activists, gender activists, visual activists, queer artists; writers, poets, performers, art activists, organic intellectuals who use all art forms of expressions in South Africa. The war is not over till we reach an end to ‘curative rapes’ and brutal killing of black lesbians, gays and transpersons in South Africa.’
Read more about Zanele Muholi in the Guardian

The post Winners – Index Awards 2013 appeared first on Index on Censorship.

An angry rant… about Workfare, Labour, and politics….

2013-03-21T19:27:02+00:00

I’m angry. I haven’t been this angry for some time. The trigger for this anger was the appalling behaviour of the Labour Party, led by Ed Miliband and Liam Byrne, in allowing the fast tracking of the bill enabling the retrospective rewriting of the Workfare rules, but in truth this anger has been growing for a while. It’s an anger born of frustration and disappointment in the behaviour of our entire political elite – but in particular the Labour Party.

The Tories are substantially behaving like Tories, and the Lib Dems are behaving in the way that Lib Dems have pretty much since they joined the Coalition – supporting their ‘coalition parties’ but occasionally wringing their hands about how hard it all is. Labour, I thought, might be different. I hoped they would be different. What’s becoming all too clear is that I was pretty much entirely wrong in those hopes.

I’ve been a Labour supporter all my adult life – indeed, I was campaigning on the doorstep for Labour as a fourteen-year-old, back in the late 70s – and for much of that time I’ve been a member of the Party. I left during the Blair years – mostly, in truth, because I left the country – but I remained a supporter. That support is now on its very last legs. It’s hanging by a thread.

My anger is on many levels – but the biggest one is about the failure of the Labour Party to challenge any of the ideological agendas that are being put forward. That’s not just a theoretical problem – the results of it are becoming manifest in almost every policy area.

In education there’s almost nothing from the Labour Party to challenge the evidence-free and ideologically-driven policies of Michael Gove – though those working in education, those in academia who study education and the empirical evidence from all around the world are all lined up against what he says and does. What does the Labour Party have? Stephen Twigg meekly accepting and even supporting much of what Gove says – and supporting such absurdities as military schools!

The welfare agenda has been pretty much set by the Tories – where is the challenge to the false, damaging and hideously ugly ‘strivers vs scroungers’ agenda dictated by Iain Duncan-Smith, the Daily Mail and Daily Express? What does Labour do? Apes the Tories by going on about ‘hard-working families’ and not just accepting the whole concept of Workfare but fast-tracking it, and riding roughshod over so many legal principles it’s hard to keep count. Indeed, as many people have pointed out to me, the ‘workfare’ agenda was actually set up by Labour under Blair and Brown – but that doesn’t make it any better. The ‘divide and rule’ tactics of the Coalition should have made it clear to the Labour Party the real damage of this kind of policy – and the break from power should have given them a chance to see that another direction was possible.

One of the other pieces of ugliness of the welfare system is that it will hit the disabled particularly hard – when combined with the rest of the ‘reforms’ which have already begun to bite in horrible ways. Add in the Bedroom Tax (and yes, as a former accountant I know it isn’t a tax, but the effect is very similar) and you get an anti-disabled agenda that hasn’t been seen for decades – and reveals an ugliness of spirit that’s deeply depressing. Egged on by the tabloids, the way that the disabled are portrayed as the worst of the scroungers, as fakers, as liars and cheats is one of the worst things seen in this country in my lifetime. Even Thatcher at her worst didn’t do things like this. And where is Labour in opposing this? Yes, they’ve done a reasonable job over the Bedroom Tax – but up until that point they largely accepted the agenda – and certainly didn’t fight it. It’s not just the measures that are wrong, but the messages behind them. Labour should have been fighting them at EVERY level – saying NO! This is WRONG. Instead they’re largely supine, as spineless as the Lib Dems – and without even the excuse of a Coalition agreement.

On immigration it’s even worse – Ed Miliband himself takes up the agenda set by the bigots and runs with it, though both the empirical evidence and the moral arguments are very much on the pro- rather than anti-immigrant side. Yes, you can argue that ‘people’ are anti-immigration – but why are they? In part at least because there’s been no real opposition to the arguments put forward against immigration. Even in power, though Blair and Brown didn’t pursue anti-immigration policies they didn’t engage with the debate but hid it away. By now it may be too late – the bigots have the upper hand – and it makes me cry sometimes to see what an opportunity was missed, and how much hatred has been generated as a result.

There are more examples – the privatisation of the NHS hasn’t been properly opposed, and indeed was to a great extent started by the Labour Party. The ‘anti-terror’ agenda is one pretty much entirely of Blair’s making, but with him gone there’s a chance to find a position of soul, conscience and effect – but it’s a chance that doesn’t seem to be able to be taken….

…and that’s my biggest cause of anger. Now is a historical opportunity to change the agenda. The failures of the current system are becoming clearer and clearer – and the chance to find a new way should be bigger and clearer than ever. In the past, it might have been possible to argue that there is no alternative – but now? We shouldn’t have to accept the same old stuff. We shouldn’t. And yet we’re offered no alternative at all. None in any substantial form.

It makes me very, very angry. I’d love to have a Labour Party that I could support. I’ve got a huge amount of energy. I even have expertise of a sort – I’m a former Chartered Accountant, I teach Law at a good University, I understand technology and all kinds of other things of importance today. I can even write a bit when the muse descends. All of this could be at the Labour Party’s disposal – and there are many, many more like me. Do they want us? Right now they’re going exactly the wrong way about it.

Our amendment to limit the damage

2013-03-21T18:02:19+00:00

As the bell tolls for press freedom, the realisation that a whole host of tiny websites, including Big Brother Watch, would be covered by the provisions of the new press regulator is dawning on Westminster.

On Monday, the Lords will vote on the legislation “underpinning” the Royal Charter on press-self regulation. They will determine who is to be a ‘relevant publisher’ and at present risks catching broadly any site that is has more than one author, carries news or information about current affairs, or gossip about celebrities, and has some kind of editorial control.

We are urgently trying to garner support for the below amendment to exclude small organisations from the provisions of what is already becoming an unwieldy and unpredictable piece of legislative horse trading.

This is not an ideal situation – as with most things formulated in meetings at 2am – and it would make much more sense for this to be handled rationally and thought through properly. This amendment protects a few, but the principle has already gone.

The amendment has now been tabled by Lord Lucas – it’s now critical that the Lords adopt it.

–

Insert into New Schedule 5 of the Crime and Courts Bill ‘Exclusions from definition of “relevant publisher”

9) “A publisher who does not exceed the definition of a small or medium-sized enterprise as defined in Section 382 and 465 Companies Act 2006.”

The Information Commissioner earns his spurs, says Committee

2013-03-21T14:17:27+00:00

FOI Man highlights a new report from the Justice Select Committee calling for more help for the Information Commissioner.

Say what you like about the Information Commissioner’s Office (ICO), but without it, the handling of personal data and FOI would be a little like the old west. Your rights would only be meaningful if you could afford a gunslinger (or expensive lawyer for those not following the metaphor).

The Justice Select Committee has taken a good hard look at the ICO and identified some major issues. And they’re worth noting.

In particular, the Committee has highlighted a major problem which may result from the proposed EU Data Protection Regulation, which, if passed, will replace our existing Data Protection Act (DPA) in the next couple of years. The existing draft will see the end of notification, which currently requires every organisation that processes personal data (with a few exceptions) to register (or notify) with the Information Commissioner every year. Depending on the size of your organisation, you have to pay either £35 or £500 for the privilege.

And that’s the problem. The ICO’s data protection work is financed by this notification fee. So even if you don’t have much time for the form-filling, box-ticking nature of the notification process (I’m a little lukewarm about it in all truth), that fee is essential to ensuring that the ICO can do its job on DPA. If the regulation removes the requirement from our statute book, the ICO will be left with a shortfall of £42.8 million. Bearing in mind that some suggest that the ICO doesn’t do enough as it is – including criticisms from Lord Justice Leveson – and the fact that it is highly unlikely that the Government will want to fund data protection enforcement directly – this is a major problem. As the Committee says, “No one seems to know where resources would come from to replace the notification fee if it is abolished.”

Interestingly, the Committee is not impressed with Leveson’s recommendation to change the status of the Commissioner’s Office to create an “Information Commission”. It repeats the call (which it rolls out every time it looks at anything to do with the ICO) for the Information Commissioner to be made directly responsible to and funded by Parliament. This is just as regularly rejected by Government, but it’s worth another shot.

Others have pointed out that successive Governments have failed to commence existing sections of the Criminal Justice and Immigration Act 2008 which introduced custodial sentences for data protection breaches. Some have suggested that bringing these into force would have been a better way to deal with the problems discovered by Leveson than the Royal Charter. The Committee calls for the the sections to be brought into force.

Similarly, Government has the power to bring in regulations allowing the ICO to carry out compulsory audits of parts of the public sector. This power hasn’t been used much, and the Committee suggests that it should be now to allow the ICO to go into councils and hospitals when there appears to be a problem.

So overall, the ICO will be happy with this report. Let’s hope the Ministry of Justice take note and enact at least some of these recommendations, as otherwise, we’ll be back in the wild west. And I’m rubbish at riding horses.

Index responds to the Royal Charter

2013-03-21T13:03:37+00:00

In response to this week’s deal on press regulation, Index on Censorship chief executive Kirsty Hughes said:

“Index is against the introduction of a Royal Charter that determines the details of establishing a press regulator in the UK — the involvement of politicians undermines the fundamental principle that the press holds politicians to account. Politicians have now stepped in as ringmaster and our democracy is tarnished as a result.”

She also said:

“The fact that this requirement is now being applied to all Royal Charters is a rushed and fudged attempt to pretend this is not just a press law; it resembles precisely the kind of political manoeuvring we see in Hungary today – where the government is amending its own constitution through a parliamentary vote undermining key principles of their democracy.

In spite of David Cameron’s claims, there can be no doubt that what has been established is statutory underpinning of the press regulator. This introduces a layer of political control that is extremely undesirable. On this sad day, Britain has abandoned a democratic principle.

But beyond that, the Royal Charter’s loose definition of a ‘relevant publisher’ as a ‘website containing news-related material’ means blogs could be regulated under this new law as well. This will undoubtedly have a chilling effect on everyday people’s web use.

Bloggers could find themselves subject to exemplary damages in court, due to the fact that they were not part of a regulator that was not intended for them in the first place. This mess of legislation has been thrown together with alarming haste: there’s little doubt we’ll repent for a while to come.”

In addition to issues over damages, there have been further problems raised about apologies. Index’s News Editor Padraig Reidy said:

“There are also concerns about the proposed regulator’s power to “direct” the placement of apologies.

Again, this is “Leveson compliant” — the Lord Justice himself stated “The power to direct the nature, extent and placement of apologies should lie with the Board”.

This is also really problematic, suggesting as it does that a Quango can determine what is and isn’t published in newspapers, and where. This may seem angel-on-pinhead stuff, but there is a world of difference between “direct” and “require”. While apologies may be desirable, it’s simply not safe to give an external power with state underpinning the power to tell editors what to put in papers. Forced publication is a sinister perversion of free expression, and has no place in the British press or anywhere else.”

Read our analysis of the Leveson Inquiry report’s recommendations here.

The post Index responds to the Royal Charter appeared first on Index on Censorship.

Less than 48 hours before we are part of the Leveson regulation

2013-03-21T11:07:22+00:00

3pm Friday is the deadline for amendments to be submitted to the Crime and Courts Bill, which is in the Lords on Monday. The clauses being considered include those for various parts of the Leveson “deal” (Of course, given this isn’t statutory regulation of the press we may well be imagining it.)

Let us be clear – the manner in which this has been brought to bear, in 2am meetings with lobbyists, no civil society input, rushed drafting and ill-considered consequences should not be the way to make law. Indeed, we cannot think of a worse way to make law.

Yesterday we became aware of a meeting, organised by Hacked Off, to discuss bloggers concerns. We, like Index on Censorship, did not receive an invitation but after we asked to attend we were allowed in. We made clear that this law has been rushed and should, at worst, be delayed so the drafting could be properly thought through. Hacked Off “have no position” on this – make of that what you may.

Below is the clause of “relevant publishers” that the Lords will/may vote to accept on Monday. Big Brother Watch’s website, like a host of other campaign organisations and non-news media, will be caught up.

If you know a friendly peer, let us know!

“Meaning of “relevant publisher”

(1) In sections (Awards of exemplary damages) to (Awards of costs), “relevant

publisher” means a person who, in the course of a business (whether or not

carried on with a view to profit), publishes news-related material—

(a) which is written by different authors, and

(b) which is to any extent subject to editorial control.

This is subject to subsections (5) and (6).

(2) News-related material is “subject to editorial control” if there is a person

(whether or not the publisher of the material) who has editorial or

equivalent responsibility for—

(a) the content of the material,

(b) how the material is to be presented, and

(3) A person who is the operator of a website is not to be taken as having

editorial or equivalent responsibility for the decision to publish any

material on the site, or for content of the material, if the person did not post

the material on the site.

(4) The fact that the operator of the website may moderate statements posted

on it by others does not matter for the purposes of subsection (3).

(5) A person is not a “relevant publisher” if the person is specified by name in

Schedule (Exclusions from definition of “relevant publisher”).

(6) A person is not a “relevant publisher” in so far as the person’s publication

of news-related material is in a capacity or case of a description specified in

Schedule

(Exclusions from definition of “relevant publisher”).”

Special interest titles

4 A person who publishes a title that—

(a) relates to a particular pastime, hobby, trade, business, industry

or profession, and

(b) only contains news-related material on an incidental basis that is

relevant to the main content of the title.

Scientific or academic journals

5 A person who publishes a scientific or academic journal that only

contains news-related material on an incidental basis that is relevant to

the scientific or academic content.

Public bodies and charities

6 (1) A public body or charity that publishes news-related material in

connection with the carrying out of its functions.

(2) “Public body” means a person or body whose functions are of a public

nature.

Company news publications etc

7 A person who publishes a newsletter, circular or other document

which—

(a) relates to a business carried on by the person, and

(b) only contains news-related material on an incidental basis that is

relevant to the person’s business.

Book publishers

8 (1) A person who is the publisher of a book.

(2) “Book” does not include any title published on a periodic basis with

substantially different content.”

Meeting Hacked Off

2013-03-21T10:45:00+00:00

(Blog) The explosive revelations that websites will be included in the post-Leveson press regulation arrangements this weekend led to a flurry of analysis — and a meeting between Hacked Off, bloggers and free speech groups yesterday.

Entendiendo el gobierno abierto: Una experiencia Uruguaya

2013-03-21T10:42:03+00:00

El pasado diciembre, tuve el placer de moderar una mesa redonda, como académico y miembro de DATA , sobre la situación del gobierno abierto en Uruguay. Servidores públicos, organizaciones internacionales, desarrolladores, investigadores y activistas, discutieron que significa (al menos en Uruguay) Gobierno Abierto. Y de hecho algunas respuestas pueden encontrarse en este reporte. Sin embargo en este post, quiero señalar 5 aspectos clave que pienso emergieron de esta reunión que podrían ser de utilidad para otras personas trabajando en temas de gobierno abierto.

1) La Alianza para el Gobierno Abierto (AGA) es una “carpa grande”: Gobierno Abierto funciona como una sombrilla para muchas iniciativas que van desde el acceso a la información pública, la participación cívica, tecnología y rendición de cuentas. Como resultado, puede ser un poco caótico. Pero el caos creativo, es cosa buena. Algunas de las iniciativas vienen ya de largo tiempo, y las sinergias que pueden alcanzar a través de AGA pueden producir buenos resultados, en su mayoría en innovaciones cívicas e institucionales. En este sentido AGA, está ayudando a mover estas agendas hacia adelante

2) La frustración es también un lugar común: La mayoría de las personas alrededor de la mesa, comparte su frustración acerca de cómo algunas políticas de transparencia y participación no funcionan como deberían. Lo interesante es que esto va más allá de la división clásica Estado/sociedad civil. La frustración es compartida.

3) La tecnología tiene el poder de irrumpir la forma tradicional de hacer las cosas. Los desafíos sin embargo, no son frecuentemente tecnológicos, sino legales, institucionales y sociales, notoriamente acerca de la liberación de datos abiertos y el uso que haremos de ellos. Existe una comunidad naciente de datos abiertos en Uruguay, así como gente trabajando en iniciativas civicas por ejemplo el sitio www.quesabes.uy y algunos emprendimientos privados usando datos abiertos. Todo el mundo acuerdo que para ser más inclusivos, la agenda de datos abiertos debe beneficiar a más gente, algo que en Uruguay podría ser posible gracias a la red Ceibal. Los datos abiertos deben ser concebidos como una herramienta para el desarrollo humano.

4) Los asuntos espinosos, van a seguir siendo espinosos El proceso de AGA puede ayudar para hacer avanzar algunos asuntos espinosos, y poner algo de luz en algunos malos entendidos. Como resultados algunos países pueden unirse en una “carrera hacia la cima”, incrementando su transparencia, rendición de cuentas y participación. Pero también seamos claros hasta donde está el límite, y que el resultado puede ser un “estamos de acuerdo, en no estar de acuerdo”. Es crucial entender el límite, para poder mover el diálogo hacia adelante.

5) El camino hacia adelante requiere de más claridad: De la forma en que la sociedad civil y el gobierno comienzan a entender el proceso, es crucial establecer un marco claro en término de planes y cómo revisarlos. Además la sociedad civil y el gobierno deben tener claras expectativas acerca de lo que AGA va a entregar, y de lo que no va a entregar.

El formato de una mesa redonda es un buen ejercicio, y si existen tiempo y recursos disponibles es un formato adecuado pues permite el intercambio de visiones de manera franca y directa, permitiendo a la gente construir alrededor de los temas difíciles. Pero hay que tener en cuenta que en algunos casos, se está debatiendo sobre transformar lo básico de la política y la administración pública, crucialmente los procesos de rendición de cuentas, un esfuerzo que como Jonathan Fox (2007)(1) ha mencionado, tiende a ser acumulativo y a veces y de largo plazo.

A la fecha AGA ha abierto un espacio interesante de debates que no tenían un foro apropiado en Uruguay, mezclando agendas que pueden promover la innovación cívica y debate saludables. AGA también ha sido un espacio donde todo el mundo en la mesa se ha dado cuenta que para tener seriamente un gobierno abierto, nuevos arreglos en materia de gobierno tienen que emerger, los cuáles son por diseño, más participativos y descentralizados, lo que son cambios políticos muy importantes. Y de esta forma, comienzan a encontrarse espinas, en el lecho de rosas del gobierno abierto. La vida es así. Lo importante, es seguir cultivando.

1. Fox Jonathan (2007)  Accountability and voice in rural Mexico, Oxford University Press

Moving Forward Open Government: An Uruguayan experience

2013-03-21T10:40:59+00:00

Entendiendo el gobierno abierto: Una experiencia Uruguaya

Last December 2012, I had the pleasure to chair in my academic capacity and as a member of DATA a round table about open government in Uruguay where government officials, civil society advocates, international organizations, developers and researchers discussed what do we mean, in Uruguay at least, by Open Government(1). Some answers can be found in this report (in Spanish), but in this post I would like to share 5 key points which I thought emerged from the workshop. To some degree they could be of use for others working on open government around the world:

1) OGP is a broad church: Open Government works as an umbrella for several initiatives, from access to information, civic participation, technology and accountability. As a result there seems to be a sense of chaos. Creative chaos is, nonetheless, a good thing. Some of these initiatives have been in place for a long time, and synergies through OGP could enhance good outcomes mostly in civic and institutional innovations. Indeed OGP is helping to move the agenda forward.

2) Frustration is a common issue: Most of the people around the table would share frustration about how several transparency government related policies work. It is interesting to note, that frustration goes well beyond the classical divide state/civil society in key issues, particularly around release of public information and participation.

3) Technology has the power to disrupt traditional ways of doing things in the public sector. The challenges yet, are often not technological but legal, institutional, and social notably around the release of open data, and the uses everyone could make of it. There is a nascent community in Uruguay working with open data, and civic issues, for example using public information to build an foi request website www.quesabes.uy and also some private ventures using open data. Everyone agreed that in order to be inclusive open data related policies should benefit more people, something that in Uruguay could be possible through the OLPC network available, but inclusion is indeed a big worry. Open Data is a tool for human development

4) Thorny issues are thorny issues: The OGP can help to advance some of them in place and potentially illuminate some misunderstandings about others. As a result some countries could join a “race to the top”, increasing transparency, accountability and participation. But there is a limit, and as a result an “agree to disagree”. It is crucial to understand where this line is, to move the dialogue forward.

5) The road ahead needs more clarity : As civil society and government start to get a grip on how to move forward about OGP, it is crucial to set up a clear framework in terms of plans and how to review them. Also civil society and government should have a clear set of expectations about what the OGP process will deliver, and what will not deliver.

The format of a round table is a good exercise and if time and resources are available I encourage it, as it allows people to exchange views in free and frank ways, and usually focus in constructive dialogue even around difficult issues. But bear in mind that in some cases you are debating about transforming fundamentals of politics and public administration, crucially around accountability an effort as Jonathan Fox(2) mentions, tends to be cumulative and sometimes long term.

So far OGP has opened up a set of interesting debates that did not have a proper forum in Uruguay, and the mingling of several agendas can indeed spark civic innovation and healthy debates. OGP has also made everyone on the table aware that with in order to succeed in setting up open governments, new governance arrangements will need to emerge, which by default should be more participatory and decentralised, which are indeed important political changes. And as you find thorns in the rosy world of open government, the important thing is to keep gardening.

The round table was organised by Data Uruguay, an Uruguayan NGOworking on Open Data and transparency (which I co-founded with my colleagues), with the support of Google and the British Embassy, in the context of a follow up of the event developing Latin America

Fox Jonathan (2007)  Accountability and voice in rural Mexico, Oxford University Press

Index Freedom of Expression Awards 2013

2013-03-21T10:25:57+00:00

Thursday 21 March, 6.30pm
Inner Temple, London EC4Y 7HL

This year’s Awards are an extraordinary celebration of the courageous and determined individuals around the world who have stood up for free expression, often at great personal risk.

The 2013 Index Awards nominees showcase both some of the biggest stories of the past year and some equally important stories that have slipped under the radar.

Our nominees have all demonstrated in different ways their passionate belief the freedom of expression is a fundamental human right.

Be inspired by this year’s heroes. Celebrate freedom of expression. Support Index on Censorship.

See this year’s nominees here

The post Index Freedom of Expression Awards 2013 appeared first on Index on Censorship.

The Democracy and Sustainability Platform is now live. Read its Manifesto and join the movement!

2013-03-20T16:47:40+00:00

Democracy and sustainability are inseparable. Each needs the other. A new Manifesto for Democracy and Sustainability has just been launched to guide the action that’s needed to re-shape democracy so that it becomes a powerful force for sustainability. In six Principles and a set of clear Commitments, the Manifesto highlights the links between democracy and sustainability and sets out an agenda for change.

La Plataforma Virtual para la Democracia y la Sostenibilidad ya está disponible. Lee el Manifiesto y únete!!

2013-03-20T16:35:36+00:00

La democracia y la sostenibilidad son conceptos inseparables. Uno precisa del otro. El nuevo Manifiesto por la Democracia y la Sostenibilidad fue creado con el propósito de fomentar las medidas necesarias para transformar la democracia en un motor de la sostenibilidad. En seis principios y un conjunto de compromisos puntuales, el Manifiesto pone en evidencia el vínculo entre la democracia y la sostenibilidad y propone una agenda para el cambio.

Is the Computer Fraud and Abuse Act the 'worst law in technology'? | Dan Gillmor

2013-03-20T15:17:13+00:00

It is bad – enabling federal prosecutors' harassment of Aaron Swartz. But America's copyright regime is an even greater threat

Is the Computer Fraud and Abuse Act the "worst law in technology", as Columbia Law School's Tim Wu calls the statute? I think there are worse laws for the technology industry and its customers, but the CFAA is more than bad enough – a vague, outdated and Draconian law, abused by the government in several high-profile cases – to have spurred calls for repeal.

As Wu and many others (including me) have pointed out over the years, the vagueness of the CFAA has given prosecutors a tool that should worry everyone. This is because the government contends that the statute's ban on "unauthorized access" to someone else's computer is a felony, period, with potential penalties you'd associate with serious violent crime.

The late Aaron Swartz has been the highest-profile target of overreaching federal prosecutors relying in large part on the CFAA, in a case where he downloaded hundreds of thousands of academic papers from an organization that didn't want him prosecuted and ultimately decided to make the material freely available. There's little question that his suicide was spurred, in part, by the government's escalating threats, made possible thanks to prosecutors' ability to use the CFAA as sledgehammer.

But he wasn't the first. The Bush administration relied on the CFAA to prosecute the easy-to-dislike Lori Drew, who was among several people who created a bogus MySpace account of a fictitious teenaged boy who wooed and rejected the daughter of Drew's neighbor in suburban St Louis. The girl killed herself. When Missouri prosecutors said they had no relevant state law to prosecute Drew and her admittedly heartless helpers in this scheme, a federal prosecutor in Los Angeles hauled Drew there to face charges under the CFAA.

The case boiled down to Drew's misstatements in her MySpace profile. (Shamefully, MySpace supported the prosecution.) The jury convicted Drew of one charge, but the judge in the case wisely overturned it, pointing out that the government would have made everyone who's ever violated a "terms of service" agreement, no matter how minor the violation, at risk for criminal charges.

The threat of this law is not just from government prosecution. It's been stretched widely in civil cases, as well. Wu says the way to fix this intolerable situation is to persuade President Obama to fix it:

"The Computer Fraud and Abuse Act is egregiously over-broad in a way that has clearly imposed on the rights and liberties of Americans. With just one speech, the president can set things right."

But no, he can't. At least, not in a way we could trust.

First, presidential dispensation is useful, but it's not remotely permanent. White House occupants change. A more authoritarian chief executive than Obama won't be bound by what he does.

Presidents also change, or their positions do. That's the second big problem with Wu's suggestion: wishful thinking. Obama's record on civil liberties and executive power is simply abysmal – worse than George W Bush's in many ways, and better in only a few (such as gay rights).

Obama's Justice Department has made clear it believes the CFAA gives it the power to go after anyone. That includes you and me, assuming you've ever violated a terms of service in any way, as you undoubtedly have done.

Banana republics have lots of laws designed to be widely broken, providing leverage for prosecution of people either not liked by the government or who do otherwise legal things that annoy the leaders. So, even though you and I are exceedingly unlikely to become targets of the CFAA, we could be – and that's why the law is intolerable as it stands.

Wu doubts, fairly, that this Congress in particular can be persuaded to act on almost anything. And it's no exaggeration to say that lawmakers are terrified in general of doing anything that might cause them to be accused of being soft on crime. But like it or not, this is ultimately an issue for Congress, which writes the laws.

The lawmakers' tendency to favor vagueness has some merit – it gives the people who carry out enforcement and make regulations the ability to adjust to changing circumstances – but in cases like this, where the abuse by the executive branch is blatant, Congress should take the risk of doing its job.
Representative Zoe Lofgren, a California Democrat, has proposed an "Aaron's Law" that would help redress the current imbalance.

Reforming CFAA is also an issue for the press – or would be, if we had more journalists who took seriously their duty to hold power accountable. Journalists in aggregate have two problems with this law: a superficial understanding, at best, and an ongoing deference to government positions on criminal justice and security. Even when journalists are directly threatened by overreaching, as they are in the WikiLeaks case, they still demonstrate a reluctance to take a stand.

If enough news organizations put the Obama civil liberties record under the spotlight it deserves, perhaps the American people would care more about what they're losing. Or maybe, we're willing to live in a more banana-like republic all the time; but I hope not.

I said earlier that the CFAA, bad as it is, isn't the worst law relating to technology. At least one, by my reckoning, is worse: the increasingly harsh copyright regime that has already turned countless millions of Americans into lawbreakers and deterred countless innovators.

Copyright in America started life in the US constitution as a way to promote innovation by giving creators of works strong rights for limited periods. It has metastasized into a system that has perverts the founders' intent and given giant corporations overwhelming – and increasing – power over not just entertainment but everything that contains information, including software, which is now part of almost everything.

In a rare defeat for the Copyright Cartel, the supreme court has upheld the "first sale doctrine" – the principle that once you buy a book or CD, you can resell it – in a closely watched case. The court's rationale was that Congress didn't mean to create a different standard for works bought overseas as opposed to ones bought in the US. But the same court also just refused to hear an appeal of a Minnesota woman who's been ordered to pay more than $220,000 for downloading two-dozen songs – a testament to Congress' gift to Hollywood and its allies in the form of absurdly stiff penalties for minor infringement.

In the end, people who want change in bad laws have to work for it. This is doubly hard given Congress' pay-to-play system of legal bribery, where dollars translate into votes. Maybe that will have to change first, as the "United Re:Public" coalition says, but we need to get started or get used to a system that puts everyone at risk. We could begin by calling our legislators and insist they get behind "Aaron's Law".

Dan Gillmor

Privacy, Protests and Policing

2013-03-20T09:23:00+00:00

In Catt v ACPO and others; T v Commissioner of Police of the Metropolis and another [2013] EWCA Civ 192, the Court of Appeal considered two appeals regarding the powers of the police to collect and retain personal information about members of the public. Both cases turned on the application of Article 8 of the Convention; in both, the Court held that there had been an interference with the Article 8(1) right to respect for private life, and that the interference was not justified under Article 8(2).

The retention of personal information by the police has given rise to extensive litigation in recent years: see e.g. Chief Constable of Humberside and others v Information Commissioner [2009] EWCA Civ 1079 (retention of conviction information on police national computer); and S and Marper v UK [2008] ECHR 1581 (operation of national DNA dabatase). Although the Humberside case concerned the Data Protection Act 1998, since it arose out of enforcement action taken by the Information Commissioner under that Act, most of the cases have turned on the application of Article 8. A recurring issue, and one on which the Catt case is especially important, is whether and in what circumstances the recording and retention of information about events taking place in public will constitute an interference with the Article 8 right to respect for private life.

The first appeal concerned Mr. John Catt, described in the judgment of the Court as someone who “over a long lifetime has been an ardent and frequent protestor against what he sees as a variety of forms of injustice”. He had attended public demonstrations organised by “Smash EDO”, a group campaigning against a weapons manufacturer operating on the outskirts of Brighton. Some of the core supporters of Smash EDO were prone to violence and criminal behaviour, but Mr. Catt had not been convicted of criminal conduct of any kind in connection with any demonstration that he had attended. Personal information about Mr. Catt was held on the National Domestic Extremism Database, mostly consisting of reports by police officers attending Smash EDO demonstrations. Mr. Catt had not been the specific target of observations, but was referred to incidentally in descriptions of what the police at the scene had observed. It appeared that this information was to be retained indefinitely.

In judicial review proceedings, Mr. Catt contended that the continued retention of this information about him constituted an unjustified interference with his Article 8 rights. His claim was rejected by the Divisional Court.

The second appellant, referred to as Ms T, was served with a police warning letter following an allegation that she had directed a single homophobic insult against the friend of a neighbour. She denied the allegation; in judicial review proceedings based on an alleged infringement of her Article 8 rights, she sought an order that the police should destroy their copy of the warning letter and remove from their records all references to the decision to serve it. Again, her claim failed at first instance. Before the appeal hearing the police reviewed the information and decided to expunge it, but the Court of Appeal nevertheless heard and determined the appeal because of the importance of the issues raised.

The judgment in Catt begins with a survey of recent developments in relation to Article 8. This part of the judgment is likely to become an important reference point in any future cases about the retention and use of police information.

As to the circumstances in which there would be an interference with the Article 8(1) right, the Court began by referring to the observation of Lord Nicholls in Campbell v MGN Ltd [2004] UKHL 22, that the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. However, recent cases showed that the position was more complex. Even information of a public nature could become private over the course of time, as memories faded. Moreover, the storage and use of personal information gathered from open sources could nevertheless involve an interference with private life.

In relation to justification under Article 8(2), the Court reiterated the three well-known requirements that the conduct in question must be in accordance with the law; carried out in pursuit of a legitimate aim; and proportionate to the aim sought to be achieved. The issue of “legitimate aim” did not cause any difficulty in the present cases: the police were acting to prevent disorder and crime, and protect the rights and freedoms of others. In cases about the collection and retention of personal information about private individuals, the issues of legality and proportionality were closely related. As to proportionality, the overriding principle was that there should be a fair balance between the personal interest of the claimant in maintaining respect for his public life, and the pursuit of a legitimate aim in the interests of the public at large. The Court needed to pay careful attention to the nature of the information in question, the circumstances in which it could be obtained, the ways in which it could be processed and by whom, the period of retention, and the arrangements for its destruction.

Applying these principles to Mr. Catt’s case, the first issue was whether there was any interference with his right under Article 8(1). The Divisional Court had held that there was not: none of those attending the Smash EDO demonstrations can have had a reasonable expectation of privacy, since it was of the essence of such activity that it was of a public nature. The Court of Appeal took a different approach, focusing on the collection and retention of data about Mr. Catt rather than on the public nature of his activities at the demonstrations themselves. The processing and retention of even publicly available information could constitute a interference with Article 8 rights, especially when the information was subjected to systematic processing and entered on a database that was searchable by reference to specific individuals.

Turning to the issue of justification under Article 8(2), the Court focused on the issue of proportionality. It accepted that the police needed to obtain a better understanding of how Smash EDO was organised, so as to anticipate its future conduct and tactics. However, the Court did not consider that the information held about Mr. Catt was of sufficient value to justify its retention. It commented that the police appeared to be recording the names of any persons they could identify at Smash EDO demonstrations, regardless of the nature of their participation. The retention of Mr. Catt’s information on the database was therefore an unjustified interference with his Article 8 rights, and hence was unlawful.

As to the second case, that of Ms T, the Court held that the action of the police in issuing the warning letter did not in itself amount to an interference with her Article 8(1) rights, but that the retention in police records of a copy of the letter, and information describing the circumstances in which it had been issued, did constitute an interference. While the retention of this information for a short period was justified, it was hard to see how retention for more than a year or so could be of any value. If the information had not been destroyed before the appeal hearing, then its continued retention woud have been disproportionate.

The message from both cases is that, even where events take place in public, the recording and retention of information about them can interfere with the right to respect for private life. The Court is especially concerned with the sitation where information is retained indefinitely on databases where it is searchable by reference to individual names. In relation to justification, the cases suggest that the Court will scrutinise closely both the precise nature of the information retained, and its value for policing purposes. The analysis in Catt will be an essential starting-point in any future consideration of how Article 8 applies to police use of information.

ICO Bares Teeth at Nuisance Callers

2013-03-20T07:38:54+00:00

I know a retired chap whose daily life is blighted by nuisance marketing phone calls. Some are from charities he donates to, and I’ve told him he’s entitled to donate and still opt out of receiving these. But others are entirely unsolicited, and despite the fact that about a year ago I got him to register with the Telephone Preference Service (TPS) the calls continue.

Now I remember when I signed up with the TPS a few years ago it was remarkably successful in stopping all nuisance calls, especially when, if one got through, I’d threaten to complain. However, my retired friend won’t complain because, he says, “it wouldn’t achieve anything”. Until recently, I’d have tended to agree with him, but it is good to see the Information Commissioner’s Office (ICO) showing that it does have teeth when it comes to enforcement of the Privacy and Electronic Communications Regulations 2003 (PECR). The ICO have today announced that a monetary penalty notice of £90,000 has been served on a Glasgow company for a breach of the PECR.

DM Design, based in Glasgow, has been the subject of nearly 2,000 complaints to the ICO and the Telephone Preference Service (TPS). The company consistently failed to check whether individuals had opted out of receiving marketing calls – in clear breach of the law – and responded to just a handful of the complaints received.

In one instance an employee refused to remove a complainant’s details from the company’s system and instead threatened to “continue to call at more inconvenient times like Sunday lunchtime”

And it is interesting to note that the ICO say they intend to issue similar “fines” against two other companies.

Of course, this kind of robust enforcement action can only really happen if people complain about this type of call, either to the ICO or to the TPS. I will be encouraging my retired friend to do so, in the knowledge that it might actually achieve something.

MIT agrees to release Aaron Swartz documents – with redactions

2013-03-19T19:22:00+00:00

MIT president says names of employees in public documents will be blacked out 'to protect privacy and safety' of individuals

The president of the Massachusetts Institute of Technology announced on Tuesday that the school will voluntarily release public documents related to the prosecution of the free-information activist Aaron Swartz, who killed himself in January as he faced trial on hacking charges.

The email announcement by MIT president L Rafael Reif came in response to a request on Friday by lawyers for Swartz's estate to have the US district court in Boston make the documents public. The university has come under fire for what critics say is its compliance with federal prosecutors in the legal case against Swartz. Supporters of Swartz have painted him as a zealous advocate of public online access, a martyred hero hounded to his death by the government he antagonized.

To prosecutors, the 26-year-old Swartz was a thief whose aims to make information available didn't excuse the illegal acts he was charged with: breaking into a wiring closet at MIT and tapping into its computer network to download millions of paid-access scholarly articles, which he planned to share publicly. Swartz was facing possibly decades in prison after being indicted in Boston in 2011 when he hanged himself in his Brooklyn, New York, apartment.

The documents will be released at the same time as an internal analysis of MIT's role in the Swartz case is made public. No date has been set for the release of that analysis, which is being conducted by professor Hal Abelson. The documents will have MIT employees' names blacked out in order to protect their safety, Reif wrote. The university will also black out information that might open it to further hacking attacks.

"In the time since Aaron Swartz's suicide, we have seen a pattern of harassment and personal threats," Reif wrote. "In this volatile atmosphere, I have the responsibility to protect the privacy and safety of those members of our community who have become involved in this matter in the course of doing their jobs for MIT, and to ensure a safe environment for all of us who call MIT home."

Swartz's family said his death was "the product of a criminal justice system rife with intimidation and prosecutorial overreach". Federal prosecutors have defended their pursuit of the case and say Swartz was offered a deal under which he would have spent just four to six months in prison. Charges were dropped after Swartz's death.

A lawyer for Swartz's estate welcomed Reif's decision, but questioned MIT's need for secrecy and worried that documents with names blacked out would be "incomprehensible and impossible to follow". "It's long overdue that they've agreed to release something," San Francisco-based attorney Elliot Peters said. "But I don't see the reason to redact. I am not aware of any threats having been made to anybody at MIT. I don't know why that's a concern."

Lawyers for Swartz's estate said in their filing on Friday that "the public has an important and clearly established interest in receiving the information necessary to understand the events that led to Aaron Swartz's arrest and indictment."

Peters said: "It would show what happened and show the role MIT had in this."

The lawyers asked that names remain in the documents if released. "Redaction of these individuals' names would merely add a layer of confusion and opacity to the documents without any additional privacy benefit," they wrote.

MIT's computer system has been hacked a number times since Swartz's death. The campus was placed into lockdown last month when someone called to report a gunman in a university building. MIT later said the gunman report was a hoax apparently prompted by Swartz's death.

Whatever happened to Gov 2.0?

2013-03-19T18:15:44+00:00

The digital revolution is here and governments are running out of places to hide. Policy Exchange wants your help to understand the challenges and opportunities ahead

A couple of months ago it was time to renew my driving licence. This didn’t seem like a big deal. Our faces change (and I like to think I am looking a little wiser these days) so a mandatory decennial renewal didn’t seem that unreasonable. In any case, I thought, it’s the 21st century. Head online and we’ll be done in no time.

The reality, of course, was rather different. It turns out the old world wasn’t giving up without a fight, and nowhere more so than with my new photo: in the end I opened the digital image on my computer, printed it precisely to size, cut it out and fixed it to a paper form, ready for someone to digitise at the other end. After filling the rest of the paperwork out by hand I didn’t bat an eyelid when asked to enclose payment in the form of a cheque and then pop the whole lot in the mail.

This sort of dissonance between internet-fuelled citizen expectations and the day-to-day reality of government business is a big deal. Digitising transactions is just one part of the UK government’s ongoing programme to modernise the public sector (and to be fair, the driving license process is much less painful if you’ve recently had a new passport issued). New strategies for public services, government ICT and Civil Service reform are all in line with a new philosophy of digital-by-default. Encouragingly much of this comes with an “open” prefix – open data, open policymaking and of course open government are all good things.

But regular readers of this blog will know that the concept of openness goes far beyond the data, transparency and digitisation initiatives that are often the focus of government activity. The internet in particular gives us a huge opportunity to make a breakthrough on both wide and deep participation and collaboration, and to rethink the boundary between the state, the citizen and the private and third sectors. There is much for governments to learn and digest, not least from the open cultures and governance pioneered by the internet generation. Mike Bracken, executive director of the UK Government Digital Service, sums it up nicely when he says “we are not just on the web, but of the web.”

Looking ahead at the UK government’s digital journey we talk about a series of sprints from here to 2015, but the race won’t end there. Public sector productivity has been pretty much flat for the past decade. Stop for a moment, think how much the world has changed in that time, and read that again. Ten years ago Facebook didn’t exist and the music retailer HMV was going strong on the British high street. Since then entire industries have been turned on their heads by technology. People today expect mountains of data, personalised services and instant fulfilment. We expect companies and governments to listen and are not afraid to leverage the internet to make our voices heard. Software is eating the world. Previous Policy Exchange research has highlighted the huge potential of trends like big data and digital entrepreneurship. Government cannot escape radical disruption for very much longer.

In light of all this, we are embarking on a major new project to explore the future of open government in the face of transformational advances in technology, data and the internet. And in the spirit of open policymaking we need your help – visit our call for evidence and tell us where and how government can do better. Now, more than ever, a radical ambition to improve the public sector is something that none of us can afford to overlook.

Image credit: Miniature London by By clry2 via Flickr

Is the tide turning in the fight for our privacy rights?

2013-03-19T12:31:00+00:00

(Blog) The latest vote on the EU Data Protection Regulation suggests MEPs are starting to realise why privacy protections are important. We need your help now to get the message across.

Leveson: Bloggers and the Royal Charter

2013-03-19T09:07:46+00:00

One of the immediate reactions to the last minute deal over the implementation of the Leveson recommendations was that it would hit bloggers and tweeters very hard. I’m not sure that’s really true – and will set out here why. I should say these are just a few first thoughts – it will be quite some time before everything becomes clear, partly because the Royal Charter itself needs careful and detailed analysis and partly because it’s not just the Charter itself that matters, but the documents and guidelines that follow. The Royal Charter is only part of the story. It sets out terms for a ‘recognition panel’ that ‘recognises’ regulators – it doesn’t set up the regulators themselves. As Cameron and others have been at pains to point out, the idea is that the ‘press’ sets up the regulator(s) itself. We have yet to see what form any regulator the press sets up will take. It has to be good enough for the recognition panel to accept – that’s the key…

So what about bloggers?

Attention has been focused on Schedule 4 of the Royal Charter (which can be found here), which sets out two definitions:

“relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:

i. a newspaper or magazine containing news-related material, or

ii. a website containing news-related material (whether or not related to a newspaper or magazine);”

“news-related material” means:

i. news or information about current affairs;

ii. opinion about matters relating to the news or current affairs; or

iii. gossip about celebrities, other public figures or other persons in the news.”

So, according to those definitions, many – perhaps most – bloggers would count as ‘relevant publishers’. Certainly I would say that my own blog – this one – would fit the definition. This seems to have caused many people to panic – but you need to look a little further: in particular, what does it mean to say that I’m a ‘relevant publisher’?

On a quick review of the Royal Charter, all it appears to mean at present is whether I would be eligible to part of the ‘recognition’ panel, or employed by that recognition panel – part of the rules intended to keep the recognition panel independent of the press, one of the key parts of the Leveson recommendations.

It may of course mean more than that in time – but we don’t know. We need to see more – the real details of how this will work have yet to emerge beyond the initial Royal Charter Draft. The fact that the definitions are there doesn’t mean much – though it could be a pointer as to the direction that the new regulatory regime is headed. It may indeed be that the new scheme is intended to ‘regulate the web’ but it doesn’t do so yet.

What’s the difference between a newspaper’s website and a blog?

That’s the big question that has yet to be answered. There’s a clear difference between the Guardian Online and my little blog – but where does things like Conservative Home, Liberal Conspiracy and Guido’s Order Order fit into the spectrum? There were even rumours last year that the Guardian was going to abandon its ‘real’ paper and focus only on its online version – they were quickly scotched, but they were believable enough for a lot of people to accept them. If they had happened, should the Guardian Online have been regulated as though it were a newspaper?

If the press is to be regulated at all – and the consensus between the political parties that lay behind yesterday’s deal suggests that non-regulation is not an option – then online newspapers that are effectively the same as ‘paper’ newspapers should have to be regulated too. Small blogs shouldn’t – and Cameron and others have been quick to say that social media won’t be covered, though quite how they bring that into action has yet to be seen. The difficulty lies in the greyer areas, and that’s where we have to be vigilant – the devil will be in the detail.

What about those huge fines?

The Charter actually says the body should have “…the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000)…”

Appropriate and proportionate sanctions for a non-profit blogger would therefore be likely to be qualitative – remedies like proper and prominent apologies come to mind. The fining capability – the £1,000,000 that has made its way into press headlines – may mean something to big newspapers, but it’s effectively irrelevant to bloggers. We don’t have ‘turnovers’ of any significance – and big fines would (in general) be inappropriate and disproportionate.

The real key is the idea of ‘exemplary damages’, introduced by the Crime and Courts Bill. That, however, introduces a different definition of ‘relevant publisher’. It says:

“(1) In sections (Awards of exemplary damages) to (Awards of costs), “relevant publisher” means a person who, in the course of a business (whether or not carried on with a view to profit), publishes news-related material—

(a) which is written by different authors, and

(b) which is to any extent subject to editorial control.”

That means that individual bloggers are automatically exempt – but leaves the bigger bloggers like Conservative Home, Liberal Conspiracy and Guido’s Order Order subject to possible exemplary damages.

Personally I don’t think the risk is at all high – exemplary damages are highly unlikely to apply except in the most extreme of circumstances, but it is still something to be alert to.

…and anyway, blogs are already subject to the law

This is a key point that many seem to miss. This regulatory framework isn’t acting in a vacuum. Bloggers and tweeters are already subject to the law – to defamation law, to privacy law, to copyright law, to public order law, to laws concerning hate speech, to obscenity law. This framework would do nothing to change that. Those laws are complex and variably effective – and variably enforced.

Personally that’s what I’d be concerned about, much more than Leveson. The illiberality of the use of public order and related law on tweeters and bloggers is something that, for me, is far more dangerous a trend than anything this Royal Charter could bring about.

Keep vigilant

These are just some first thoughts – there’s a long way to go with this. Monday wasn’t the last word in this. Far from it – we need to watch very carefully and lobby very strongly if things seem to be moving the wrong way, but we shouldn’t be distracted and forced into a panic over anything at this stage.

Personally, I wonder whether those who are against the regulation for their own reasons are just trying to scare bloggers and tweeters, and enlist them on their side. Not me. Not yet.

Royal Charter or Star Chamber For Stars?

2013-03-19T08:38:00+00:00

(Blog) The new Royal Charter being rushed through the UK Parliament includes some drafting that appears to drag blogs, Twitter and other social media into the penalty net. This is an extremely worrying development that needs rapid response from the meshed society of citizen creator-consumers (that almost certainly means you).

Don’t Panic about the Royal Charter. Panic Now!

2013-03-19T08:34:24+00:00

Bloggers shouldn’t panic about the proposed Royal Charter, unless they’re already panicking about the current law.

Imagine that a local citizen blogger – let’s call her Mrs B, who is a member of a local church group – decides to let others know, by way of a website, some news and information about the group. She includes information for those about to be confirmed into the church as well as extraneous, light-hearted stuff about her fellow parishioners, including the fact that one of them has a broken leg. Now imagine that a complaint by one of the fellow parishioners that this website is intrusive is upheld and Mrs B is found to have breached domestic law.

The coercive power of the state being brought against a mere blogger would be, you might imagine, unacceptable. You might imagine that any such domestic law, in a country which is a signatory to the European Convention on Human Rights, would be held to be in breach of the free-expression rights under Article 10 of the same.

This sort of outcome, you might say, would surely be unimaginable even under the proposed regulatory scheme by Royal Charter agreed in principle by the main party leaders on 18 March.

But, as anyone who knows about data protection law will tell you, exactly this happened in 2003 in Sweden, when poor Mrs Bodil Lindqvist was prosecuted and convicted under national Swedish legislation on data protection and privacy. On appeal to the European Court of Justice her actions were held to have been the “processing” of “personal data” (and, in the case of the person with the injured leg, of the higher-category “sensitive personal data”) and thus those actions engaged Article 3(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data which is given domestic effect in Sweden by the law under which she was convicted. The same Directive is, of course, given domestic effect in the UK by the Data Protection Act 1998 (DPA).

The response to the proposed Royal Charter was heated, and many people noticed that the interpretative provisions in Schedule 4 implied the regulation of web content in general (if said content was “news-related material”), thus potentially bringing the “blogosphere” and various social media activities into jurisdiction. This has caused much protest. For instance Cory Doctorow wrote

In a nutshell, then: if you press a button labelled “publish” or “submit” or “tweet” while in the UK, these rules as written will treat you as a newspaper proprietor, and make you vulnerable to an arbitration procedure where the complainer pays nothing, but you have to pay to defend yourself, and that will potentially have the power to fine you, force you to censor your posts, and force you to print “corrections” and “apologies” in a manner that the regulator will get to specify.

But the irony is, that is effectively exactly the position as it currently stands under data protection law. If you publish or submit or tweet in the UK information which relates to an identifiable individual you are “processing” “personal data”. The “data subject” can object if they feel the processing is in breach of the very broad obligations under the DPA. This right of objection is free (by means of a complaint to the Information Commissioner’s Office (ICO)). The ICO can impose a monetary penalty notice (a “fine”) up to £500,000 for serious breaches of the DPA, and can issue enforcement notices requiring certain actions (such as removal of data, corrections, apologies etc) and a breach of an enforcement notice is potentially a criminal offence.

As it is, the ICO is highly unlikely even to accept jurisdiction over a complaint like this. He will say it is covered by the exemption for processing if it is “only for the purposes of that individual’s personal, family or household affairs (including recreational purposes)”. He will say this despite the fact that this position is legally and logically unsound, and was heavily criticised in the High Court, where, in response to a statement from the ICO that

The situation would clearly be impossible were the Information Commissioner to be expected to rule on what it is acceptable for one individual to say about…another individual. This is not what my office is established to do. This is particularly the case where other legal remedies are available – for example, the law of libel or incitement.

Mr Justice Tugendhat said

I do not find it possible to reconcile the views on the law expressed in the Commissioner’s letter with authoritative statements of the law. The DPA does envisage that the Information Commissioner should consider what it is acceptable for one individual to say about another, because the First Data Protection Principle requires that data should be processed lawfully. The authoritative statements of the law are to be found not only in the cases cited in this judgment (including para 16 above), but also by the Court of Appeal in Campbell v MGN Ltd [2002] EWCA Civ 1373 [2003] QB 633 paras [72] to [138], and in other cases. As Patten J made clear in Murray, where the DPA applies, if processing is unlawful by reason of it breaching the general law of confidentiality (and thus any other general law) there will be a contravention of the First Data Protection Principle within the meaning of s.40(1), and a breach of s.4(4) of the DPA…The fact that a claimant may have claims under common law torts, or under HRA s.6, does not preclude there being a claim under, or other means of enforcement of, the DPA.

The ICO will decline jurisdiction because, in reality, he does not have the resources to regulate the internet in its broadest sense, and nor does he have the inclination to do so. And I strongly suspect that this would also be the position of any regulator established under the Royal Charter.

I’m not normally one for complacency, and I actually think that the fact that the coercive power of the state potentially applies in this manner to activities such as blogging and tweeting is problematic (not wrong per se, note, but problematic). But the fact is that, firstly, the same coercive power already applies, to the extent that such activities engage, for instance, defamation law, or contempt of court, or incitement laws, and secondly – and despite the High Court criticism – no one seems to be particularly exercised by the fact that the current DPA regulator is able to ignore the activities of the blogosphere, so I doubt that the social and legal will exists to regulate these activities. I hope I’m not wrong.

Court of Appeal rules on damages for frustration at DPA breach

2013-03-18T22:59:49+00:00

On a day in which the remedying of privacy breaches of the kind considered by Leveson LJ dominated parliamentary debate, the Court of Appeal (Arden LJ, Lloyd LJ and Ryder J) delivered an interesting judgment on remedies for privacy breaches of the data protection variety.

Halliday v Creation Consumer Finance concerned Mr H’s appeal against a damages award to him under s. 13 of the Data Protection Act 1998. He had obtained default judgment against CCF for its breach of the DPA: it had accidentally and temporarily passed to a credit reference agency incorrect information about his allegedly having an unpaid debt of £1500 (Mr H and CCF had in fact resolved their dispute by that point). The judge at first instance awarded Mr H nominal damages of no fixed amount, but was not satisfied that there was evidence of reputational harm or prejudice to Mr H’s credit position. Mr H therefore received nothing in the way of substantial damages.

His appeal has been allowed. Nominal damages were set at £1 – as Panopticon understands it, this appears to have sufficed as ‘damage’ for s. 13(1) purposes, thereby entitling Mr H to compensation for distress under s. 13(2). He was awarded £750 in recognition of his distress and frustration at CCF’s wrongful processing, but there was no cogent evidence of him having suffered injury to feelings at the time, and CCF’s breach was a technical error rather than an intentional mis-statement. Hence the somewhat insubstantial sum by way of substantial damages.

Mr H sought to rely on Article 24 of Directive 95/46/EC which provides that member states must provide for sanctions where data protection rights have been infringed, but the Court of Appeal held that he could not seek direct enforcement of that provision in private proceedings, and that it was not the function of the civil courts to impose sanctions on data controllers – rather, their function under s. 13 of the DPA was to compensate data subjects.

It is understood that this judgment was delivered ex tempore, with a written judgment to follow, along with more Panopticon analysis.

Robin Hopkins

Big Brother Watch: Packing a big punch

2013-03-18T21:16:24+00:00

Nick Pickles, Director of the Big Brother Watch organisation gave a very interesting presentation to members of the Data Protection Forum last week. There can be few groups that pack a larger punch than BBW, given their staff and budget. With a huge list of press contacts, and a capacity to respond to media enquiries within minutes, they’re always ready with a juicy quote to spice up a story.

In 2012, Big Brother Watch appeared in the national press on more than 400 times, with nearly 300 national and regional broadcast appearances. They secured 6474 pieces of media coverage during the year in total, and registered 2 million hits on their website.

Nick made a number of points that make uncomfortable reading for the larger brands. Following a data breach, or a high profile run in with the ICO, the brand damage may not be immediately obvious – but it could prove to be extremely corrosive, over time. When managing an incident, consumer communications are critical. Once a business is seen as not being on the side of consumers, the damage may be irreversible.

All good sense as far as DPOs are concerned, but how do we get the message to the Board? Well, given the research that Nick presented, there are compelling business cases that demonstrate the damage done to brands once a celebrity or information rights organization has generated interest in a particular privacy issue.

And, let’s hope that the ICO’s current enforcement strategy will encourage more famous brands to realise the importance of high data protection standards before their deficiencies are on show for everyone to see.

Source:

www.bigbrotherwatch.org.uk

More than just Data: Kampala Roundtable Forum Discusses Open Data ideas for Uganda

2013-03-18T16:39:23+00:00

On Wednesday 13 March 2013 in Kampala, Development Research and Training (DRT) in collaboration with Development Initiatives – Africa Hub organized an Africacounts Roundtable Forum on Open Development. The ‘Africacounts’ round tables are multi-stakeholder forums designed to stimulate constructive dialogue amongst civil society, media, government and academia. The purpose is to influence the allocation of resources and ensure poverty eradication is prioritised in the East Africa region. Africacounts Round Table Forums held in 2012 in Nairobi, Kenya covered a range of themes such as the prospects of East Africa’s natural resource finds, the state of Social Protection in the region and progress on the Kenya Open Data Initiative.

At the Kampala event which was attended by an array of delegates from civil society, academia, government and the donor community, delegates agreed that Uganda needs an open data initiative to help spur decisions on resource allocation for poverty eradication. An open data platform, it was agreed, would help stimulate public demand for more openness and information sharing in Uganda.

Under the theme “Appropriating Open Data for improving resource allocation and service delivery in Uganda”, key objectives for this meeting included; Exploring avenues through which open data can be leveraged to influence resource allocation and effective delivery of public goods in Uganda, considering the potential challenges to the operationalisation of an open development platform in Uganda and the possible means of dealing with them, and to argue the case for the inclusion of ‘open data’ as a stand-alone goal in the post MDG agenda.

One of the panelists, Dr Abel Rwendeire, deputy chairperson of the National Planning Authority said that an Open Data initiative in Uganda was long overdue:

“As a government, we have not been forthcoming in sharing information despite the laws we have in place that create an enabling environment. Irrespective of the sensitivities that come with making information public, we need to move faster”, he said

Dr Rwendeire further reiterated that Uganda, being an economy dependant on agriculture lacks coherent data on the sector to help better planning and investment. “At NPA we do planning based almost exclusively on estimates which is not always a good idea. For example the use of mobile phones would relay us good information even from remote villages. We should exploit modern and widely available communication tools”, he said

Al Kags, a Nairobi based Open Data advocate who was the event’s Key note speaker said Uganda should adopt a utilitarian approach where making critical decisions without necessary waiting for government is key in having an Open Data initiative. Citing as example Kenya which, unlike Uganda has no freedom of information law but has a running Open Data initiative, he counseled that there is need to begin publishing data after which government will eventually come along

Margret Kakande, the director of Budget Monitoring and accountability unit of the Ministry of finance said that the Open Data initiative idea is a powerful tool in making citizens aware of what is going on. “People can’t demand when they don’t know”, she said. She added that while the ministry publishes quarterly financial releases to local governments and government ministries and agencies, this does no good since many people can’t read or those who can either can’t afford to buy a newspaper or find time to read the extremely minute text the figures are presented in.

Ms Kakande added that since resource allocation is a political process in Uganda, Open Data advocates will need significant buy-in from politicians

Fred Byamugisha, the manager of E-governance at the National IT Authority (NITA) added that simply providing data which is not understood won’t do much. NITA, under the ministry of ICT has embarked on cleaning up all ministry websites to make sure that all the scattered information is put together and synthesized into understandable and easy to use formats, he emphasized

Edward Ssenyange from the Democratic Governance Facility (DGF) expressed his organization’s support for the Open Data platform, but cautioned that data should be handled professionally ensuring that all stakeholders in the process are playing their roles and that the ultimate aim of the project, that of ensuring that citizens are involved in the affairs of their governance, is never forgotten

The roundtable discussion, which was in form of a breakfast meeting, was intended to further the discussion that was started by DRT with the creation of the Open Development Platform. It ended with participants agreeing that to have a fully functioning Open Data Platform, an ecosystem of a variety of actors and stakeholders need to be in place, with all complementing each other. They also pledged to continue deliberating on the importance of the issue, and to spread the message to their organizations and their partners.

FOI case law update - 5 June 2013

2013-03-18T16:02:36+00:00

The Campaign for Freedom of Information's next course on 'Information Commissioner & Tribunal Decisions' will be in London on 5 June 2013.

This course, now in its 8th year, deals only with significant Commissioner and Tribunal decisions issued during the past six months. It aims to help experienced FOI practitioners and others with a good working knowledge of the FOI Act keep abreast of new developments. Its exact content is dependent on the decisions that have been issued during the period, but typically covers issues such as:

"fair" and "unfair" disclosures of personal data;
the FOI/EIR borderline;
the application of specific exemptions including those for breach of confidence, commercial interests and legal professional privilege;
where the public interest line is being drawn; and
the cost limit, aggregating requests, invalid requests, advice & assistance and other administrative provisions.

The course will be presented by Maurice Frankel, the Campaign's director, who has worked in the field for 29 years.

Significant discounts are available for more than one booking from the same organisation.

Further details here.

The Exemption Index: Section 21 – information reasonably accessible by other means

2013-03-18T13:04:54+00:00

In this post in the Exemption Index series, FOI Man looks at the absolute exemption at section 21 of the Freedom of Information Act 2000

Summary

“An Act to make provision for the disclosure of information held by public authorities…” Freedom of Information Act 2000, long title

So why not ask your local authority for a copy of any book they hold in one of their libraries? (Assuming they still have them, of course). And given that through the internet, all public authorities have access to all the world’s websites, why not use a public authority as your own personal research unit?

The answer is section 21. This exemption means that public authorities don’t have to provide requested information that the requesters could reasonably easily obtain for themselves.

It also acts as a carrot to encourage public authorities to publish more information. If requested information is in their publication scheme and/or on their website, they won’t have to supply it. Also, if an authority sets out how much it charges for its information in its publication scheme – in theory it can charge what it likes for access to that information.

The big question for both FOI Officers and requesters is…what is “reasonably accessible”?

Information affected

Any information that is publicly available, even if it has to be paid for (though see discussion below). Information that public authorities are legally obliged to communicate. Information listed in a public authority’s publication scheme.

Things that FOI Officers need to know

If refusing a request using this exemption, you must provide advice and assistance to the requester (FOI, s.16) on where they can obtain the information from
If the information is to be found amongst lots of other information on a website, you must explain where on the website the specific information can be located (Ames v Information Commissioner and the Cabinet Office, para 19). In other words, if it is on a website, give them a link to the specific document that contains the relevant information, and if necessary explain what page of that document the information is on.
If you’ve said in your publication scheme that you will charge for a particular publication, the exemption will apply even though the information is only available for that charge [if the charge is paid?] – recent case law suggests that there is no limit in these circumstances (Davis v Information Commissioner and the Health and Social Care Information Centre, para 26), though the Commissioner could arguably revoke approval for particular kinds of information if he was unhappy with the level of the charge
Arguably the level of charge will be important in other situations where information is only available for a charge, but what case law there is supports the idea that generally speaking, authorities can refuse requests even where there is a significant cost to access the information.
The Information Commissioner’s guidance suggests that, for example, if a piece of information is in a publication such as an annual report, but it is only a very small item of information, it would not consider the need to purchase the whole report as being “reasonably accessible”.
Information that is only available through inspection on the authority’s premises is not “reasonably accessible” (FOI, s.21(2)(b)), unless it is listed in the publication scheme as only being available through that route (so it is a very good idea for publication schemes to include public registers and archives).
The location of the requester may be significant in deciding whether something is reasonably accessible. If your office is in Kent, and the requester is in Newcastle, that might mean that a requirement to visit your office to see the documents is not making them reasonably accessible. However, the Information Commissioner does accept that there will be circumstances where copies can’t be made even for a requester a long way off (eg fragile documents held by a Record Office).
If a requester has a disability, that may also affect whether or not information is reasonably accessible. Authorities need to consider their duties under the Equalities Act 2010 to make reasonable adjustments. A requester with particular disabilities may not be able to visit an office a distance from their home.

Things that requesters need to know

If you think that your circumstances would affect whether or not information is reasonably accessible (eg you have a disability that would prevent you accessing information in the public domain, or you live a long way from an office where the information is made available) you should include this information in your request (you don’t have to, of course, but an authority can’t make adjustment for your circumstances if it doesn’t know about them).
If an authority is claiming that the information is reasonably accessible because it is in a publication scheme even though it is very expensive, consider whether the information is environmental information. The Environmental Information Regulations (EIR) require charges to be reasonable, and it is possible that a challenge under EIR would be more successful than a challenge under FOI.
If you think that the FOI Officer hasn’t given you enough advice to be able to find the specific information, point out to them that they are required to provide advice and assistance. Reference to the Ames decision may also help your cause.
If the information is published by the authority, but is only available at a significant cost, check that it is listed in their publication scheme at that cost.
If information is available from that or another public authority at a significant cost but it is not listed in their publication scheme, it may be worth challenging in some circumstances. The Tribunal in Davis suggested that it was sympathetic to the Health and Social Care Information Centre’s charge because it made available lots of other information and the charge reflected the work involved in producing it. But that may mean that a Tribunal would be less sympathetic in circumstances where the authority was charging a disproportionate amount for a publication and hadn’t made available as much as it could at no cost.

Essential case law

Ames v Information Commissioner and the Cabinet Office, EA/2007/0110, 24 April 2008
Davis v Information Commissioner and Health and Social Care Information Centre, EA/2012/0175, 24 January 2013

FOI Man says…

Should I be working for private businesses? (14 December 2010)
How to make an FOI request (25 October 2010)

Press regulation deal: what the parties wanted – and who won

2013-03-18T11:45:00+00:00

Eleventh-hour negotiations look to have secured basis of agreement for regulator underpinned by statute. But where did the Conservatives and Labour and the Liberal Democrats stand on the key issues?

Patrick Wintour

Outstanding questions about Leveson’s Royal Charter

2013-03-18T10:44:56+00:00

Today Parliament will vote on the Royal Charter for press regulation. While we have not yet seen the final details, serious concerns remain.The detail has been haggled over in two sets of meetings – one with the three party leaders, and one with Ed Miliband, Nick Clegg and Hacked Off.

MPs should not be afraid to table amendments where the proposals do not work and we have highlighted three critical issues that must be addressed.

1) Will provisions for third party groups to make complaints be based on the watered down version?

The Lib/Lab version amended the test for third party reduced the threshold for ‘representative’ groups to make complaints to the new regulatory body. Will this remain?

The amended version was: “b) where there is an alleged breach of the code and there is ~~substantial~~ public interest in the Board giving ~~formal~~ consideration to the complaint from a representative group affected by the alleged breach”

Why do we need ‘representative’ bodies making complaints to a press regulator? If so much harm is done to individuals and we have a regulator with a simple and accessible process, what is wrong with having a test of a substantial public interest? Will the EDL use this loophole to complain about its coverage? How about

2) Will the scope of the provisions be reduced to only cover major news outlets?

Under the draft provisions, the scope is cast far wider than just major national newspapers. with bloggers, community leaflets and arguably pretty much anyone with a photocopier.

It says:

b) “relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:

i.) a newspaper or magazine containing news-related material, or

ii.) a website containing news-related material (whether or not related to a newspaper or magazine);

b) “relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:

i.) a newspaper or magazine containing news-related material, or

ii.) a website containing news-related material (whether or not related to a newspaper or magazine);

This is far too broad a scope and goes far beyond addressing the ills of a few journalists on major newspapers. As our report argued at the weekend, obtaining information through unregulated surveillance is not simply a matter for newspapers and must be tackled through the criminal law.

3) That pre-publication censorship must not be available without recourse to a court

The current wording states that publishers will face a test of strict liability where material is published following a notice from the regulator that an individual to respect their privacy. There only defence is public interest. The question addressed in, for example, exposing the hypocracy or lies of celebrity who seeks to profit from a reputation, seems entirely ignored and a test of strict liability risks a clear impingement on freedom of the press.

“8A. A self-regulatory body should provide advice to the public in relation to issues concerning the press and the standards code, along with a service to warn the press, and other relevant parties such as broadcasters and press photographers, when an individual has made it clear that they do not welcome press intrusion.

8B. A self-regulatory body should make it clear that subscribers will be held strictly accountable under the standards code for any material that they publish, including photographs, however sourced. This criterion does not include advertising content.

8C. A self-regulatory body should provide non-binding guidance on the interpretation of the public interest that justifies what would otherwise”

UPDATE

The draft Royal Charter has been published. (Link)

On our questions:

1) The substantial public interest test has gone. “where there is an alleged breach of the code and there is public interest in theBoard giving consideration to the complaint from a representative group affectedby the alleged breach,”

2) Bloggers are covered.

3) Strict liability remains.

How to implement a local democracy barometer

2013-03-18T10:43:16+00:00

In my previous post, I spoke about the importance of creating a democracy barometer, which would measure the level of democracy across countries to make comparisons easier. Instead of just identifying the need for this barometer, I wanted to explore how this may be implemented.

A democracy barometer uses the following premise – the overall quality of a society is largely a function of democracy. Bringing terms like “quality” and “democracy” together will often create a superior level for discussing the efforts for enhancing local democracy. If it has the support, a project like this would turn all local and central public institutions into reliable partners for the community to fulfil its needs. But the practices implemented through this project have to be agreed, accepted and largely applied.

My methodological proposal is based on some measurable dimensions chosen because they directly affect citizens, such as satisfaction towards institutions and satisfaction towards democracy itself. Its principal competitive advantages are:

Relevance – because it measures in a complete / exhaustive manner
Measurability – even when our information is qualitative it has to be compiled in a measurable form
Availability – gathering data is accessible, easy to obtain.

In order to ensure consistency, research should be undertaken by measuring local democracy against a scorecard composed of seven composite dimensions, for example – Political Participation, Operation of local public institutions, Decentralization, Civil society, Freedom of the Press, Civic Culture, General information about the county and demographic information. The methodology will be developed according to the 7 principal measurable dimensions while giving deference to:

- standardized evaluation criteria

- the need for quoting sources and correction by an additional assessor

- blind peer review

- interviews and discussions in the local community

- third party sources such as National Institute of Statistics and Press, focusing on local mass-media, which captures some aspects of phenomena that are not necessarily visible in the statistics, so that selection of certain information discussed in the Romanian press and in the official news flow has been considered useful for this study – media monitoring.

Any study should be conducted by independent experts coordinated by NGOs, based on standard evaluation criteria, and blind peer review.

But our approach must overcome some classical assumptions about what we should measure within these dimensions. For example, to assess the civic culture at the local level in qualitative terms, we would have to exceed the standard membership as an indicator.The participation in various associations and foundations is not relevant to show a high civic culture. Instead, we would be primarily interested in the real number of meetings between members of the Parliament and citizens, or between local representatives and citizens. And it would be interesting to find out whose were initiatives – of representatives or citizens. A balance would show a refined level of civic culture.

Regarding the operation of local public institutions, we should be interested in indicators such as administrative rationalization – Do authorities provide online tax payment methods for citizens? Do they have citizen audience programs? Under what degree they consult with citizens regarding public affairs?

Another indicator is related to the degree of information from the citizens about the activity of institutions – Are there information offices for citizens? Do citizens understand how public money is being spent and how those decisions are made?

A new indicator is the level of complaints to institutions. How high is the number of complaints from citizens addressed to public institutions and how many of them were solved in favor of the citizen when he/she was right? In how many administrative trials is the City Hall involved or how many sanctions did the City Hall received from the prefecture because of inappropriate application of the laws? Relating to the operation of local institutions, the relationship between NGOs and the City Hall is also relevant – Do City Halls facilitate rental offices to local NGOs? Are there partnerships between NGOs and City Halls in important public projects?

As we can see, the quality of democracy is directly related to the effects the institutions have on the citizens and to the usefulness of institutions in favor of the citizen. Therefore, in the center of institutionalized communities lies the relation between citizens and authorities. It is true that the relation is built both ways but without the above mentioned minimal conditions, insured through the will of our representatives to make states better, we can speak about a formal democracy and not about a qualitative democracy. Politicians need to have the courage to be open to such evaluations and then support a plan to improve the quality of democracy in the community, by improving the relationship with citizens.

Let’s also not forget that democracy requires institutions to be responsive to citizens’ and the only evaluation of this should be such a barometer. Otherwise, surveys and research will consistently show us a low level of people’s confidence in institutions with fundamental roles in democracy and a low degree of satisfaction with the performance of institutions. How do we improve democracy if we don’t know its actual implementation problems?

Judge releases Somali journalist jailed for interviewing alleged rape victim

2013-03-17T18:23:26+00:00

Abdiaziz Abdinur Ibrahim served two months for talking to Lul Ali Osman Barake who claimed rape by men in military fatigues

A Somali journalist jailed for interviewing an alleged gang-rape victim spoke of his relief on Sunday after a judge ordered his release.

Abdiaziz Abdinur Ibrahim had been sentenced to a year in prison, later reduced to six months, for talking to Lul Ali Osman Barake about her claim that she was raped by five men in military fatigues.

"I am happy today like the day I was born," Ibrahim, 25, told the Guardian as he was transported in a four-wheel drive vehicle from Mogadishu central prison to his home.

The case has prompted international condemnation over how Somalia's fledgling institutions approach victims of sexual violence and freedom of the press.

Barake had also been sentenced to a year in prison but this was quashed on appeal.

After her release Barake spoke of her anger with the police and courts over the way she had been treated. "I was a victim and I was given a one-year jail term. No female victim in Somalia will feel able to talk about this. Rape victims will stay silent in their home and not tell anyone," she told the Guardian.

There was uncertainty over the exact nature of Ibrahim's offence, with charges ranging from fabricating a defamatory story to entering a home without permission to misleading an interviewee for an article that was never published.

Family members and colleagues had expressed fears for his health during his two months in Mogadishu's overcrowded prison, saying that he was forced to sleep standing up and was suffering from a stomach ulcer and skin allergy.

Hundreds of local journalists, press freedom activists and human rights campaigners packed Somalia's supreme court on Sunday to hear chief judge Aidid Abdullahi Ilkahanaf consider Ibrahim's latest appeal.

"After having seen the way the 3 March verdict against the journalist was done, and having seen that the appeals court ordered the release of the rape victim and that the journalist remain in jail for six months without giving proper reason, the supreme court here decides to fully release the journalist Abdiaziz Abdinur Ibrahim from prison," the judge said as the court quashed all the charges against Ibrahim.

Smiling journalists, relatives and friends of Ibrahim celebrated outside the courtroom. They included Ibrahim's girlfriend, whom he is set to marry this year, but she did not speak to the media.

Waving to the crowd, Ibrahim said: "All praise be to Allah alone. I thank Somali journalists, my colleagues, the international community for their tireless efforts to make me free. You can see I am free, I am free. Thanks to you all of you."

Many of the Mogadishu-based journalists accompanied Ibrahim to his home in Wadajir district in a show of solidarity.

The National Union of Somali Journalists welcomed the decision and described it as a historic day. "It seems that the Somali justice system is coming to reality and I hope that no journalist inside Somalia will be arrested for his work," said secretary-general Mohamed Ibrahim.

Fears over an erosion of press freedom heightened last week when journalists claimed they were beaten by police while trying to cover a court case.

Somali prime minister Abdi Farah Shirdon had promised to reform the country's armed forces and the judiciary once the trial was concluded, acknowledging "deep-seated problems" with both institutions.

A new government backed by the UN came to power last September after more than two decades of civil war.

Leveson: don’t believe the hype….

2013-03-17T11:43:31+00:00

With Monday’s debate and vote looming, the hype over Leveson seems to be ratcheting up a few notches. Nick Cohen’s acerbic piece in the Observer, headlined ‘Leveson’s liberal friends bring shame upon the left’ is just one example. Given that those most closely involved in the debate on both sides are journalists, politicians and ‘media folk’ it should not come as a surprise that the contributions (again on both sides) are well-written, in prominent places in the media, and tending towards the hyperbolic.

If you believe Cohen and those on his side, the ‘pro-Leveson lobby’ are risking centuries of precious free speech just to make a political point, whilst if you believe Cathcart, Hugh Grant and the Hacked Off team, if we don’t implement Leveson we will be missing a historical opportunity to rein in the evils of the press barons and their abominable practices. Who’s right? The points made by both sides are well-put and seductive. Cohen’s right that we shouldn’t allow an opportunity to humiliate David Cameron and give the likes of Murdoch and Dacre a bloody nose to blind us to the risks to free speech of giving politicians control over the press. Hacked Off are quite right that what the press have done – and indeed continue to do – is often hideous and hugely reprehensible, and that just allowing it to go on without any action would be ridiculous. And yet I find it hard to get wholly enthused by either side of the debate.

Leveson wouldn’t be the end of free speech…

I don’t believe the ‘anti-Leveson’ argument for a number of reasons. First of all, because as I’ve argued before I don’t think the mainstream press that we have now bears much resemblance to a ‘free press’ – it’s just a question of who or what controls it, rather than whether it’s free. Secondly, I don’t think that what’s being proposed by either side will actually do much to fetter the press. It may control one or two excesses, but it won’t do anything that’s not already being done. We already have defamation and privacy law that impacts upon free speech, we already have huge editorial control that prevents some of the really important debates ever reaching the public eye – what’s proposed by Leveson won’t make as much difference as his opponents might think.

Leveson wouldn’t do much to control press excesses…

Similarly, I don’t believe the ‘pro-Leveson’ group either. Firstly, as noted above I suspect they’re deeply naïve if they believe that even the full implementation of Leveson would really do that much to curb the practices of the press – regulation rarely has the effects that people might desire, either way. What’s more, if they imagine that implementation of Leveson would turn the likes of the Sun, Mail and Express into responsible papers, they’re really living in cloud cuckoo-land. Regardless of Leveson, the Sun will still be full of rampant misogyny, the Mail full of vile anti-immigrant and anti-European rants and the Express will still billow out homophobia and Islamophobia. They’ll continue to demonise the disabled and those on benefits, twist the debate on Europe and shift the blame for all our problems onto the vulnerable and the innocent. They may not hack our phones, but they’ll still find a way to dig out secrets and private information – and ways that are technically legal, too. The data is out there – and they’ll find a way to dig it out and to use it in all kinds of horrible ways. If we think statutory press regulation will stop this, we’re deluding ourselves.

This debate is about politics…

The reality, it seems to me, is that this debate is primarily a political one – and almost nothing to do with free speech. It’s a chance for David Cameron to put clear blue water between himself and the Lib Dems – and a chance for Ed Miliband to give Cameron a good hiding. It’s Nick Clegg staking claim to a liberalism that his behaviour over the last two years in coalition have vigorously denied. It’s a chance for all three to position themselves in preparation for the long run-up to the 2015 election. Nothing to do with free speech at all. But then, to a great extent, free speech is moving on from the ‘press’…

Free speech matters…

All this is happening while the real ‘cutting edge’ of free speech is somewhere other than the papers – and is under threat in ways that Leveson doesn’t get close to. Free speech is in the hands of the bloggers and tweeters – and the question of how to ‘regulate’ them is still up in the air. Social media prosecutions are still happening – and though the DPP has issued new guidance that might liberalise it a bit, the proof will still be in the pudding. We don’t know what will happen – but none of the political parties has taken a good, free speech stance, obsessed as they are by Leveson.

Free speech is also in the hands of the protestors – and there are also few signs that any of the politicians are coming out properly in support of the rights of people to protest. Instead, there are prosecutions and crackdowns. If politicians of any side of the debate are really in favour of free speech, they’d be talking about this a lot more. Are they? Not really – and certainly not at anywhere near the level that they talk about Leveson.

For me, Leveson is to a great extent a distraction. However the vote goes on Monday, it won’t be disastrous for either side. There will be much more hype over the next few days – but we should take it all with a huge pinch of salt. We shouldn’t believe the hype – we should focus more on the real threats to free speech that are out there.

Boom in private investigators risks avoiding surveillance regulation

2013-03-17T08:34:50+00:00

Our latest report highlights the growing use of private investigators by local and public authorities, particularly the number of times they are used without RIPA authorisation.

The law in the UK, particularly the Police and Criminal Evidence Act 1984, is broadly drawn to allow evidence to be introduced in court that in other jurisdictions would not be deemed admissible. Contrasted with the fruit of the poisonous tree provisions in the US, and broader protection offered by the Fourth Amendment, UK law risks failing to join up the evidential admissibility process and the regulation of surveillance.

While the surveillance doesn’t come cheap, with some organisation spending thousands of pounds on a single operation, the primary finding of the report is the potential loophole in surveillance regulation that is being exploited following the passage of the Protection of Freedoms Act 2012.

Accordingly, we are seriously concerned there is a gap in UK law emerging around surveillance and the ability of third parties to conduct surveillance operations without proper regulation. Some of these operations were conducted at the request of insurers, raising concerns about conflicts of interest.

The government has acted to control surveillance by local councils but this research shows more than ever before public bodies are using private detectives to do their snooping. The law is at breaking point and public bodies shouldn’t be able to dodge the legal checks on them by using private investigators.

Commenting on our report, Secretary of State for Local Government, Eric Pickles (no relation!) said “Such powers can only be used for serious crimes, and require a magistrates’ warrant. It is totally unacceptable if councils are trying to sidestep these important new checks and they should be held to account for acting outside the law.”

With as many as 10,000 people working as private investigators in the UK, we agree with the Home Affairs Select Committee that the current legal framework for regulating their activities is wholly inadequate.

This highlights the ongoing concern that RIPA is not fit for purpose, in failing to deal with evidence and material obtained outside the legislative framework. Equally, the changing nature of surveillance – particularly the ability to search online, through social networks and through semi-public sources of information – further reinforces the need for the law to be reformed to strengthen protection against unwarranted and unauthorised surveillance becoming a frequent occurrence.

Deputy Director Emma Carr appeared on Sky News sunrise discussing the report, with BBC News, Metro, The Daily Telegraph, ITV News, BBC Radio 5 Live, Politics.co.uk, LocalGov and numerous regional media including the York Press, Huddersfield Examiner and the Sunderland Echo reporting our findings.

Bad planning

2013-03-16T13:02:50+00:00

A couple of weeks ago, the journalist Heather Brooke tweeted the following in respect of myself and another person:

“Really, you two are starting to sound a little like trolls. Do I lurk on your feed & make continuous snide remarks? No”

She doesn’t quite call me a snide, lurking troll but we’re close. If “innocent face” is enough to get Lord MacAlpine going, then associating me with trolls (example: Frank Zimmerman, the man who threatened Louise Mensch and her kids ) is surely murky territory. Could I argue that Brooke’s comments tend to lower me in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally? Brooke is the hero of the MPs expenses case, the respected journalist and authority on FOI, the esteemed tutor of the next generation of journalists. I am just a tawdry freelancing consultant. Isn’t it possible that people might well give her comments credence because of her status as a respectable public figure?

So can I sue her for libel?

Of course not, it wasn’t libel. Brooke has a low opinion of me and these weekly mentions on my blog will probably only make it worse, but she is entitled to say I’m a troll. She can say worse things and has every right to. She said it’s a shame I’m not a journalist, so maybe she already has. Brooke expressed a negative opinion about the fact that I fired critical responses to some of her tweets in quick succession. The question of whether I was simply disagreeing with her (my version) or deliberately misunderstanding her point (her version) depends on your perspective – you’re obviously free to see it her way, and given our respective respectability, you probably will. I don’t agree with her accusation, but my objection doesn’t make it libel. She didn’t accuse me of training the BNP, teaching people in how to breach the DPA and get away with it, or bribing officials to get training contracts. I haven’t done these things, and I would sue anyone who said that I did. Free speech protects our legitimate opinions even if they offend other people. However, it shouldn’t allow us to say anything, especially if anything is an unfounded accusation of a crime.

All this is by way of introduction to a doubtless unwelcome and unpopular contribution to the depressing resolution of the libel battle between the redoubtable blogger Jacqui Thompson and Mark James, Chief Executive of Carmarthenshire Council . Doubtless I will be accused of backing Team Goliath for not simply foaming at the mouth in outrage, but I cannot say my reaction is the same as most of the comments I have seen.

Much of the background to the case is like a riposte to my own defences of public sector workers. The idea that councils might fund or back libel actions for their staff in any circumstances is a disgrace. Public money is for public services, and if an officer is libelled and cannot afford to defend their reputation, they must blame our legal system or cruel fate. If Carmarthenshire’s Chief Executive accepted public funds to defend his personal reputation – even though this might have been entirely legal – he should pay the money back, as he can afford his own defence.

Moreover, all senior council officers must have a thick skin. I once dealt with a senior officer who did not want his salary disclosed because of fears his children would be bullied in the playground. He earned more than £100,000 per annum, and he was talking bollocks. Every front-line officer gets abuse from time to time and they just plough on, letting it wash over them. If you are not prepared to be called crap, incompetent, idiotic, stupid, moronic, selfish, or cowardly, whether it’s fair or unfair, you are not fit for management in local (or central) government, the Police, NHS, Fire or the rest of the public sector. Suck it up; it’s part of the job.

The most eye-catching element of the case is still troubling. Public meetings should be public places. Any restriction on filming, recording, tweeting or reporting of proceedings held in public by any person for any reason is an affront to democracy. I would include the courts in this (with necessary protections for witnesses and victims). No part of the UK, and no UK institution no matter how large or small should seek to restrict access to public proceedings, no matter what the circumstances. Any organisation that attempts to restrict coverage of public meetings – whether by professional journalists or by amateur bloggers – must be prevented from doing so. Any amount of blather from Eric Pickles disguises the fact that he has done nothing formal to protect those wanting to film or report council and other similar proceedings.

And finally, calling the police because a person is filming a public meeting and refusing to stop is ridiculous. From a purely tactical perspective in the Carmarthenshire case, it was disastrous. The people who called the police have forever ensured that this case will always be the innocent ‘armchair auditor’ against the overweening, something-to-hide establishment. Mark James won his case, but in the court of public opinion, he and his council will forever be associated with the image of an ordinary taxpayer being led away simply for wanting to report the truth, and they deserve nothing else for their poor judgement in making that image happen.

But free speech is not dead. The arrest of Jacqui Thompson for filming a public meeting is a free speech issue, and I entirely agree with her stand on that. However, this libel case was launched by Thompson and not the council. Ultimately it is about accusations of corruption versus claims of intimidation. If you haven’t read the full judgement and are going off the headlines, you should read it objectively now before you pontificate (I didn’t and I deleted tweets as a result). If you really can’t bear it, this detailed story in the Western Mail (HT: @NewsatTwm on Twitter) is very strong.

The daft arrest isn’t the decisive issue. Thompson sued Mark James, the Chief Executive, because he published a letter accusing her and her family of conducting a campaign of harassment and intimidation against council officers. James counter-sued for comments that Thompson made on her blog about perjury, dishonesty and corruption. If Thompson could justify her allegations of corruption, the comments on her blog and her actions in the Council chamber would be vindicated, and James’ comments about the campaign would probably be libellous. However, without anything concrete to back up the corruption claims, the position is reversed. If Thompson made serious and repeated accusations without evidence, she has libelled James and potentially others. No matter how outrageous the arrest was, it does not prove that anyone is guilty of corruption, or justify statements that cannot be verified. Thompson’s libel action against James is not made one tiny bit stronger by the unfairness of her arrest, and it was not an opportunity for her to be recompensed for the unfairness of that arrest. No amount of capsule sermonising from Nick Cohen changes this.

Even the sympathetic Broken Barnet coverage of the case acknowledged that Thompson “has perhaps made errors of judgement in some of the comments made in some of her posts” . But isn’t it more than that? In 2006, Thompson accused James and a planning officer of corruption and was sued by the latter for libel. She lost, and had to retract her comments and apologise in court – paragraphs 6 and 7 of the judgment – as well as agreeing to pay £7500 in costs (costs she later argued should be borne by the Council, a suggestion that I think is outrageous). Thompson made no attempt to prove that any of her allegations of corruption were true and defended herself solely on “honest comment”. Every decision and comment I have found on this defence include a variation on this quote: the comment “must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”. You cannot accuse someone of corruption without something concrete to back it up.

So consider paragraph 299 from the current judgement:

“Mrs Thompson did not, when sued by Mr Bowen, attempt to prove that the allegation of corruption she made against him was true. She has never attempted to prove in court that Mr Bowen was corrupt. A defamatory publication for which there is no defence is unlawful. She accepts that she cannot prove that. She accepted during the trial that the HMCS letter bearing the Council’s stamps does not prove that the Council made any payment in respect of Mr Bowen’s libel action, and does not prove that he or Mr James, or anyone else lied or committed perjury.”

At this point, I’m out. I can’t support Thompson if this is true. Corruption isn’t just a label you apply to those who you disagree with. Even if the corruption seems painfully obvious to you through experience of beating your head against a brick wall of bureaucratic numbskullery, impenetrable decisions, and people who just seem to have it in for you. Even with all that, corruption is not a loose or metaphorical word. Accusing someone of corruption is accusing them of a crime – taking or accepting bribes, committing acts of misconduct in public office, or perpetrating fraud. This is corruption. Unhappy FOI and Data Protection applicants, bloggers, letter writers and Local Government Ombudsman complainants throw around words like corruption and conspiracy as if all they need to justify their use is a deeply held conviction. Whatever the outcome of Jacqui Thompson’s libel case had been, flinging these words around is an abuse of free speech at best. The outcome of the case shows that the courts agree.

If accused of a crime, you are innocent until proven guilty. Evidence is weighed and sifted, and an objective decision made by a court. Journalists and bloggers can play a vital role in digging up evidence of crimes, in bringing them to public attention, and forcing the hand of the police and the CPS, but ultimately, it is the courts and not the commentators who make the decision of guilt. Without evidence, your strongest conviction is worth nothing and if you cannot keep it to yourself, you risk the wrong end of a libel suit. And now we see what that’s like.

Local newspaper journalism is dying; like most people, I believe that the internet including many enthusiastic bloggers will end up replacing it entirely. But Thompson Vs James must not be misrepresented as a threat to this. In her statement on the case, Thompson said this: “I believe this judgement has dire consequences for others who publicly scrutinise and criticise their local authority, including the press”. I completely disagree with her. Nobody should feel that this case prevents them from scrutinising, criticising, mocking, or commenting on public affairs in the strongest possible terms. Get out there. Show why the decisions are shoddy, find the links between politicians and dodgy business, seek out the fraudsters, the hucksters and the bigots where they exist and show them for what they are.

But – and it’s a big but – do not accuse someone of criminal activity without something concrete. I don’t want to live in a society where allegations of criminality are made without being substantiated – that’s not free speech, it’s a witch-hunt. Nothing about this case puts the decision-makers and politicians in Carmarthenshire County Council in anything but a dire light, but I’m not paranoid enough to believe that Thompson was stitched up by the Establishment. She made accusations she couldn’t ultimately substantiate – even if they were true, she couldn’t prove it to the satisfaction of a judge. If she appeals and proves her claims to be true, refuting the idea that her campaign was illegitimate, I’ll be in a long queue to congratulate her. But she cannot win her appeal on the basis that the daft arrest was daft, or illiberal, or wrong. It was all of those things, but two wrongs do not make a right.

And if you want to call me an arsehole (guilty), a vile corporate stooge, a council apologist, a scumbag enemy of free speech, a self-hating blogger or even a wannabe journalist (not guilty), the comments section is below.

Filed under: Another bunch of people who will now hate my guts, Councillors, FOI, Transparency Tagged: Carmarthenshire, Councils, Libel

US secrecy policy run as though formed by Orwell and Kafka, top official claims

2013-03-15T17:26:46+00:00

William Leonard, who oversaw state secrecy under George W Bush, says successive US presidents have abused system

Successive US presidents, including Barack Obama, have abused the system for handling classified information to expand their executive powers, the former senior official who oversaw state secrecy under George W Bush has claimed.

William Leonard, who was entrusted with ensuring proper treatment of state secrets by government agencies in the immediate aftermath of the 9/11 terrorist attacks, said that over the past decade both the Obama and the previous Bush administrations had manipulated their classification authority to create new executive powers without congressional oversight or judicial review.

Leonard, the former head of the Information Security Oversight Office from 2002 to 2007, said that what was at stake was "the abuse of the very form of government we are operating under, as unilateral executive powers go unchallenged."

He said: "Governments have decided under the cloak of secrecy to unleash the brutality of violence in our name and that of our fellow citizens. So extra judicial kidnapping becomes 'rendition', torture becomes 'enhanced interrogation', detainees are held on information that barely qualifies as hearsay, and assassination becomes 'targeted killing'."

Leonard told a high-level discussion group on secrecy and security convened by the Brennan Center for Justice in Washington that even language had suffered in this scramble for new powers. "It is as if Lewis Carroll, George Orwell and Franz Kafka were jointly conspiring to form official US policy."

The issue of how the US government treats state secrets has risen towards the top of the political agenda in recent days as the White House has come under intense pressure to make public the legal advice for the targeted killing program – the use of unmanned drones to assassinate terror suspects in Pakistan, Yemen and elsewhere.

The subject was given additional publicity last week during the course of a 13-hour filibuster by the Republican senator, Rand Paul, who demanded an assurance that Obama would not authorise drones to kill American citizens on domestic soil.

The issue of classification of sensitive intelligence material has also been central in the prosecution of Bradley Manning, the source of the massive WikiLeaks publication of US state secrets. The US soldier had asked for permission to present evidence at his upcoming trial that he said would show the classification system was broken, and that a large portion of the hundreds of thousands of documents he transferred to WikiLeaks were ranked "secret" when they were, in fact, anodyne.

The judge in the Manning case, Colonel Denise Lind, ruled the over-classification argument to be inadmissible at trial.

Excessive secrecy in government has now been recognised at all levels, from Obama down. In 2009 he effected an executive order that provided for information to be released to the public as soon as possible, and the following year he signed HR 553, the "reducing over-classification act".

Yet, at the same time as Obama has talked about enhancing transparency, he has also presided over one of the toughest administrations in terms of policing state secrets. There have been six prosecutions under the 1917 Espionage Act under his watch – more than under all previous presidents combined.

An investigation by the Associated Press recently revealed that the Pentagon, CIA and other government agencies are rebuffing public requests for information at a greater rate than at any time since Obama took office, all in the name of national security.

The endemic tendency towards secrecy was underlined at the Brennan Center event by two currently serving senior administration figures. Nancy Soderberg, a former US ambassador to the UN who now advises Obama on classification of national security information, said the system for handling official documents was not functioning.

"We are withholding documents we should not be withholding. The current classification system is outmoded and outdated, and entirely unsuited for the modern digital age."

Soderberg chairs the Public Interest Declassification Board, an advisory committee set up by Congress to tackle the crisis of spiraling official secrets. In December the board produced a devastating report that said the present situation was unsustainable.

"It is a basic right," Soderberg told the meeting. "The government must be accountable to the public, and the public has to know what is being done in its name. But the system cannot keep pace with the number of digitised documents being created."

She said that between 2001 and 2011 the cost of administering the classification of official material had more than doubled, from $4.7bn to $11.4bn.

Robert Litt, the most senior legal advisor to the Director of National Intelligence who is at the coal face of classification issues in the current administration, agreed that too much information was being held secret for too long. But he ascribed it not to "evil or venality" but to a combination of a culture of secrecy among executive branches and "bureaucratic inertia".

"Nobody wants to be responsible for being the person who blows the cover of an [intelligence] asset that may lead to them being killed. Nobody wants to be the person who results in the loss of an important security capability that protects the public," he said.

He added: "In my view, it's fundamentally a cultural problem. We need more training of classifiers, and management buy-in, to move people away from the tendency to lean towards classification and get them to see the very real benefits of greater public information."

Ed Pilkington

Who’s snooping on your relationship status?

2013-03-14T17:43:33+00:00

Next time you change your Facebook relationship status, think twice about what your local council might think.

As Tony Bell found, saying he was ‘married’ led to his local council deciding he was no longer entitled to his single person council tax discount – despite the ‘marriage’ being a joke to wind up colleagues.

We’ve warned before that the law is badly lacking when it comes to this kind of snooping and this case highlights why it’s a problem that’s only going to get worse.

If the council had sent someone out to see what was going on, they would have to seek a magistrates approval for surveillance under the Regulation of Investigatory Powers Act. Yet doing it online appears to fall totally outside these rules.

This weekend we’ll be publishing details of public authorities using private investigators, and it is clear this is not an isolated case.

Partnering for Open Governments: The IDB Approach

2013-03-14T16:34:18+00:00

The Interamerican Development Bank shares the view that the concept of open government is a platform for rethinking public management and the way governments engage with civil society. Open Government Partnership (OGP) is not just another transparency initiative, but rather an opportunity to recast the traditional agenda on this field. By moving toward a pro-integrity and pro-citizen strategy, we think that the promotion of transparency and accountability policies are useful tools to strengthen and modernize public management in order to improve the quality and efficiency of public services. At the same time OGP empowers citizens to exercise social accountability more effectively.

Whenever countries work on civil service reforms — by decentralizing services, improving revenue management and fiscal responsibility, modernizing public procurement, cutting red tape, strengthening audit and control agencies, fostering transparency and access to information — they seek to improve public management while at the same time diminishing corruption risks by working on the vulnerable entry points of the Administration.

How does the IDB implement this strategy? Through a two-fold approach: first, by supporting the implementation of open government policies. Countries are increasingly developing their government plans around this concept of openness for the modernization of their management systems. Second, Countries are developing targeted transparency policies in different social and economic sectors. This concept refers to the provision of specific and useful information for a targeted group of current and potential users, in a timely and friendly manner. This way, targeted transparency empower citizens to take better informed choices on public services they are entitled to, and enable them to more effectively advocate for and influence public policies decision-making processes and exercise monitoring activities.

The IDB, through the Transparency Trust Fund, is pro-actively engaging with 11 countries in applying Targeted Transparency in key sectors such extractive industries in Ecuador and Housing in Colombia. The IDB is also contributing to help several countries enhance their capacity for consolidating and implementing their OGP action plans, and the implementation of specific commitments.

In Colombia, the IDB is assisting with the establishment of a road map for the compliance of the action plan. In Peru the Bank is contributing to increase the information published in transparency portals of public agencies, regions and municipalities, implementing an open data portal, and drafting a diagnostic and a course of action to improve the public archives policy.

The IDB is also committed with knowledge dissemination and regional policy dialogue. It has recently co-sponsored a Regional OGP Conference (Chile, January 2013); and published a study on Open Government and Targeted Transparency (see chapter 2, by Alvaro Ramirez Alujas and Nicolás Dassen). This study showed that approximately 73% of the 243 OGP’s commitments submitted by the Latin American and Caribbean countries member are related to improving public services (27%, mostly e-government), and to the enhancement of public integrity (46%, mostly open data portals and implementation of access to information policies).

These figures, we believe, show an incipient but positive trend in Latin American and Caribbean countries shifting from the traditional transparency approach towards one that considers openness and accountability as embedded principles of efficiency and effectiveness in public management and service delivery, embracing a more ambitious state modernization.

Snoopers' Charter: we must be consulted

2013-03-14T15:46:00+00:00

(Audio/Video) The government is pushing ahead with the Snooper's Charter: holding meetings but not discussing the proposal with the public. Rather than trying to understand the consequences, they are trying to reduce opposition, and they are ignoring the demand of the Parliament's Joint Committee for proper consultation.

Google maps: gone, but not forgotten

2013-03-13T19:41:23+00:00

Our chums at Google have found a brilliant way of adapting their maps to deal with a person’s right to be forgotten, but to leave us with a reminder about what they might well have got up to.

Let me explain.

We all know that Google’s Street View service captures images of people in public places, as well as the buildings on each side of the road. And, we all know that, every now and again, the images capture activities that these people might have preferred not to have been captured, even though their activities were perfectly visible to anyone passing by. Also, we all know that Google’s software automatically blurs certain objects, such as faces, effectively making these people quite hard to recognise.

Recently, when photographing Temperance Street in Manchester,Google’s software automatically blurred the faces (and evidently the hands) of the couple seen in the main picture, although it is pretty clear what was going on as the vehicle drove by.

(Those who attended the ICO’s Data Protection Officer Conference in Manchester last week will be interested to learn that Temperance Street is about a mile away from the Convention Centre.)

Some wag saw and posted the image on Facebook, causing a spike in traffic to this particular location that was so large that the Google cartographers took a quick squint and promptly blocked anyone else from looking at it. Yesterday, as I manoeuvred past that spot with my curser, a black page with the message “This image is no longer available” was displayed.

But, all is not lost.

For, reverting to Google’s satellite image of that spot, I noted that someone with a sense of humour had renamed said location. Rather than Temperance Street, I was now looking at Hand Job Alley.

No doubt, that new name will be removed as swiftly as the image of the couple was.

But, just in case anyone wants proof as to how hard it is to ‘forget’ incidents logged on the internet, let’s see how long it will be before the two images I’ve posted in today’s blog are permanently removed from every location they get to be stored in.

Submission to DPP consultation on social media prosecutions

2013-03-13T18:02:00+00:00

(Report) In December 2012 the Director of Public Prosecutions launched a consultation on "interim guidelines …

The Right to Unknown Information

2013-03-13T08:25:17+00:00

It is important to note that there is no requirement in the FOIA that those intending to make requests for information have any prior knowledge of the information they are requesting.

These words of the Information Commissioner (IC) in, Decision Notice FS50465008, are an important statement about the role of the Freedom of Information Act 2000 (FOIA) in investigative journalism and activism. They establish that, at least in the IC’s view, FOIA requests may be made on a speculative basis, without a knowledge of the specific contents of documents.

To many users and practitioners they are probably also an obvious statement about the right to information conferred by FOIA. If someone is asking for information from a public authority, it is self-evident that, at least in the large majority of cases, they do not know what the information specifically consists of – otherwise, why request it? As the IC goes on to say

The idea of a requirement of prior knowledge that the relevant information exists is itself contrary to the very purpose of the legislation, let alone prior knowledge as to what it comprises

The request in question, made – as those who followed the “Govegate” imbroglio might have guessed – by the impressively dogged journalist Christopher Cook (who has given me permission to identify him as the requester), was to the Cabinet Office for

the last email received by the [Prime Minister] personally on government business via a private non-GSI account. I also want the last government email sent by the PM via such an account

It was made in the context of suspicions that attempts might have been made to circumvent FOIA by conducting government business using private email accounts. For obvious reasons Chris was unlikely to be able to identify the specific type of information he sought, and the Cabinet Office knew this, telling the IC that

he has no idea of the nature of the information that may be contained in such emails, if indeed such emails even exist…For a request for a document to be valid, it needs to describe (if it would not otherwise be apparent) the nature of the information recorded in the document. The Cabinet Office does not accept that asking a public authority to undertake a search for emails without any subject matter, or reference to any topic or policy, sent using a particular type of account can satisfy the requirement on the application to ‘describe the information requested’

However, the IC rejected this, splendidly demolishing the Cabinet Office’s position with an argument by analogy

a request for the minutes of the last Cabinet meeting would clearly describe the information requested, even though it does not describe the content by reference to the matters discussed

I think this decision is particularly important because it accepts that, sometimes, a person contemplating requesting information from a public authority might not have a fully-formed view of what it is she wants, or expects to get. Authorities sometime baulk at requests which they see as “fishing expeditions”, but the practice of investigative journalism (in de Burgh‘s classic formulation “…to discover the truth and to identify lapses from it in whatever media may be available…”) will often involve precisely that, and the IC recognises this

Whilst public authorities might find such requests irritating, the FOIA does not legislate against so-called ‘fishing expeditions’

The Cabinet Office must now treat Chris’s request as properly-made under FOIA. That does not mean that they will necessarily disclose emails from the PM’s private email account (in fact I’d be amazed if they did), but no one ever suggested the trade of investigative journalism was easy.

La Conferencia sobre el Desarrollo Sostenible y el Foro del Caribe en Bogotá. Seguimiento a Río + 20

2013-03-12T21:33:59+00:00

Del 5 al 9 de marzo, se llevaron a cabo en la ciudad de Bogotá, la “Conferencia sobre el Desarrollo Sostenible en América Latina y el Caribe: Seguimiento de la Agenda para el Desarrollo después de 2015 y Río +20” y el “Foro del Caribe”. En estas reuniones participaron como parte de la sociedad civil: el Secretariado Global de la Iniciativa de Acceso, la Asociación Ambiente y Sociedad de Colombia, y CAINFO y GAIA de Uruguay.

Study links Facebook ‘likes’ with personality traits

2013-03-12T14:26:31+00:00

Facebook’s ‘likes’ could reveal the sexuality, political leanings and even your intelligence with an accuracy of between 65-95%. The study, created by Cambridge University, should will ring alarm bells for anyone who thinks that privacy settings are the solution to protecting information online.

The study, which used 58,000 volunteers, looked at Facebook “likes” and demographic information alongside provided psychometric testing results which are able to reveal personality traits.

The information was then fed into an algorithm which proved to be 88% accurate for determining male sexuality, 95% accurate in distinguishing African-American from Caucasian-American and 85% for differentiating Republican from Democrat. Christians and Muslims were correctly classified in 82% of cases and relationship status and substance abuse was predicted with an accuracy between 65% and 73%. Bizarrely, some strong but random links were found, such as Curly Fries with high IQ.

It is this sort of accuracy which shows that we need to seriously rethink how much data we are voluntarily sharing online. Sharing individual likes or pages might not seem hugely intrusive, but it allows individuals to be categorised and behaviour predicted in areas that are far more personal and sensitive than people realise.

Michael Kosinski, a lead researcher on the study, has said: “I appreciate automated book recommendations, or Facebook selecting the most relevant stories for my newsfeed. However, I can imagine situations in which the same data and technology is used to predict political views or sexual orientation, posing threats to freedom or even life”.

The researchers themselves have acknowledged that similar predictions could be made from “all manner of digital data” with remarkable accuracy, predicting sensitive information that many people would not want to be revealed. Given the number of “digital traces” that people leave behind, it is becoming increasingly difficult for individuals to control.

Internet users are right to expect a strong level of privacy protection to be built into services and this research serves as a stark reminder that this simply isn’t the case. It is this sort of accuracy that should serve as a reminder that we need to take a mindful approach to what we share online, utilising the privacy controls and never sharing content with unknown third parties.Yet again, it is clear the lack of transparency about how users’ data is being used will lead to entirely justified fears about our data being exploited for commercial gain.

An unpopular answer

2013-03-12T14:15:11+00:00

FOI Man argues that there’s an easy answer to improving information and records management. The problem is that nobody likes it.

Jimmy Savile appears to have got away with, well, not quite murder, but rather a lot of very serious crimes in his lifetime. This morning BBC Radio 4′s Today programme looked at the failure of police forces around the country to recognise what was going on, despite many of them receiving complaints during his lifetime. Drusilla Sharpling of Her Majesty’s Inspectorate of Constabulary (HMIC) stated that forces have differing standards for recording information on the police national database. The problem, she argued, was one of information management.

This is but the latest example illustrating how fundamental information management is to the provision of just about every service in the country. And also how until something goes wrong (and usually within a few weeks after something goes wrong), it’s perfectly acceptable to put it to the bottom of the pecking order. We see plenty of evidence of personal data breaches that receive the attention of the Information Commissioner, most of which come down to poor information management. Last year London Metropolitan University lost its “trusted” status in relation to international students, partly because it failed to keep attendance records up-to-date.

We’re all inclined to leave the filing on the backburner. It’s a chore to us. Even I tend to find lots of jobs that need doing to prevent me spending time on records management. Recently I ran a workshop and the most senior manager present complained that email and shared drives were a problem as they weren’t being managed. So I asked him if he was going to set up a programme to be monitored by his management team and encourage his staff to spend time filing and deleting documents. He shrugged and said they don’t have the resources for that. And we moved on. That’s what we always do. We move on.

As a result, things don’t improve. FOI requests get refused on cost grounds or take forever to answer. Data breaches continue to happen. Children get abused and the abusers get away with it because a police force somewhere doesn’t employ enough people to keep records up-to-date. (And no doubt those police forces are under political pressure to cut “back office staff” – but that’s a whole different blog post).

I first got involved with FOI because I saw it as the answer to my prayers. At the time I was stuck in a regularly flooding basement in a local authority managing to the best of my ability a file store – a big room with lots of boxing on shelves. Some of the records at some point had been put in a location under the town hall steps. When I went to see them, I had to wear a mask because of the mould spores on the old ledgers that had been allowed to become damp (actually, sodden). Records management wasn’t sexy, but worse than that, the council didn’t HAVE to do it. There were all sorts of legal requirements on the council, and those were the things that got prioritised. So a piece of legislation that introduced a Code of Practice for managing records was music to my ears. The Lord Chancellor, no less, was calling for improved records management. Colleagues would have to listen to me. Bosses would have to provide resources. Beyond the wellington boots they provided when the basement flooded.

Well, sort of. Here we are 12 years later. Lots of public authorities appointed records managers. But that was it. Unless everyone in the authority spends time managing the information they deal with, and the technology and other infrastructure is put in place, all you’ve really got is…lots more records managers in basements, usually now with lots of other responsibilities that mean they have no time to work on records management. There’s plenty of evidence that actual improvements have been fairly limited in many, probably most public authorities.

So what’s the answer? Well, firstly, we could all try to remember that managing the information and records we work with is part of the job, not something that will wait until a quiet moment that never comes. But if that fails? I’m beginning to wonder if more legislation is the answer. There is precedent.

In Scotland, an abuse scandal in children’s homes led to the Scottish Government introducing The Public Records (Scotland) Act 2011. Under this Act, public authorities are obliged to prepare and implement a records management plan. The plan itself has to be approved by the Keeper of the Records of Scotland. In England and Wales, The National Archives has stringent rules already that apply to central Government and also inspect “places of deposit” – local Record Offices that are authorised to keep national public records relating to their local area.

But by and large most public authorities are left to their own devices. They can adopt technology without worrying about management of the information that the technology creates. They can treat records management as a luxury to be given up in tough times. They can leave their staff to their own devices, however important it might be to have a record of their work. Maybe it is time to look at the way we prioritise records and information management at a national level. Because whatever we’re doing at the moment isn’t quite working.

With thanks to Pete Wadley of the National Records of Scotland for information about The Public Records (Scotland) Act 2011.

Another opportunity or another scam?

2013-03-12T13:28:26+00:00

One of my (business) email accounts has received a couple of unsolicited emails from the International Who’s Who Historical Society. They are always in the following format:

"Dear Mr. Sinha:

On behalf of International WHO'S WHO of Professionals, I am pleased to inform you that you have been nominated by one of your peers as a candidate for inclusion in the 2013 Anniversary Edition commemorating 85 Years of Publishing Excellence! We congratulate you! Nomination into WHO'S WHO is an honor in itself.

International WHO'S WHO has over 20,000 members in 200 countries worldwide and has been publishing biographies since 1928. It is the most elite professional network in the world. Our members assist each other daily with business and career opportunities.

It is in times like these that such a network is most valuable and we are seeing members help other members expand their businesses, find new positions, even relocate to another country.

If selected into WHO'S WHO, you will be listed in the 2013 Edition of International WHO'S WHO of Professionals. This is the definitive work on the world's leaders in commerce, economics, policy, and trade."

Well, I’ve no idea who this Mr. Sinah is, nor why people might wish to pay to have their biographical details added to a database controlled by this organisation, when LinkedIn, my own website and the mighty Google enable enough people to find me whenever they want me.

I wondered if the International Who’s Who Historical Society, with a prestigious address in Washington DC, has any connection with Who’s Who, which, published in the UK by A&C Black, really does have an excellent reputation as the place where authoritative biographies of eminent people appear.

If any of my LinkedIn contacts have derived any value from membership of this organisation, then I would be delighted to know. Surely it can’t simply be another scam?

The £200 taxi and the 4 inch fish.

2013-03-12T09:53:32+00:00

It was December. I’d spent a day training in Edinburgh and the following day was doing a morning in Reading. Bad planning I know but all I had to do was take a train from Edinburgh to London then on … Continue reading →

Why Hollywood kowtows to China

2013-03-11T14:24:00+00:00

Films set in Shanghai, Chinese scientists saving the day, Beijing portrayed as the promised land … US film-makers are flattering their way into the world's fastest-growing movie market

Last week North Korea threatened America with a nuclear strike. This week sees the UK release of Red Dawn, which features a North Korean invasion of the US. An impressive instance of Hollywood's far-sightedness? Not quite.

Red Dawn is the reboot of a cold war thriller that's much cherished in some quarters. Back in 1984, when the original appeared, the aggressor could only have been the Soviet Union. With the new film comes a new commie bogeyman – but it was not supposed to be North Korea. These days, it's not so much Kim Jong-un's eccentric dictatorship that makes Americans tremble, it's their newfound rival for superpower status, China.

So, MGM's re-imaginers decided to reallocate Russia's role to the Chinese People's Republic. Fancifully enough, they envisaged Beijing "repossessing" an America that had defaulted on its huge Sino debt. However, this storyline didn't go down well in China. When excerpts of the script leaked out in 2010, they prompted the headline "US reshoots cold war movie to demonise China" in the Beijing-based, 1.5m-circulation Global Times. Buyers told MGM that distributing Red Dawn in China would prove problematic. So the studio decided on a change of tack.

Unfortunately, the film had already been shot. No matter. During post-production, $1m was spent on digitally erasing Chinese flags and symbols and changing sequences and dialogue to turn the invaders into North Koreans. Of course, Hollywood would never have dreamed of bowing like this to Soviet displeasure, but China is different.

The world's most populous nation has become the second-largest overseas market for American films. Its increasingly avid cinemagoers can easily add $50m to a Hollywood movie's gross. The number of screens in the country, already more than 11,000, is expected to double by 2015. In a recent report, Ernst & Young predicted that China's box office would overtake America's by 2020.

Sadly for movie-makers, this burgeoning treasure trove is guarded by a censorious state. China's government imposes a quota on film imports and keeps a careful eye on the content of those it allows through. Back in the 90s, Disney, Sony and MGM all had their Chinese business blocked after releasing the movies Kundun, Seven Years in Tibet and Red Corner, all of which were deemed critical of the regime.

Nowadays, any such potential transgressions are usually nipped in the bud. When censors objected to a bald Chinese pirate in Pirates of the Caribbean: At World's End, he was edited out of the film's Chinese version. Footage was similarly removed from Men in Black 3 because unpleasant aliens had dared disguise themselves as Chinese restaurant workers. In the Chinese version of Skyfall, references to prostitution and corruption in China were removed or obscured in opaque subtitles. All mention of the torture inflicted on Javier Bardem's villain when he was an MI6 agent in Hong Kong was carefully expunged.

Accommodations like these are not enough for some film-makers, who opt instead for proactive ingratiation. The setting of large sections of Looper was transferred from Paris to Shanghai. In Battleship, it's Hong Kong that is credited by Washington with divining the alien origins of the earth's attackers. The 2010 remake of The Karate Kid saw the young hero's family turned into importunate migrants leaving decaying Detroit to seek a better future in thriving Beijing. In spite of the film's title, the all-conquering martial art becomes kung fu instead of karate, and the fount of all skill, wisdom and fortitude is an altogether Chinese kung fu master.

It seems to pay off. Looper, like The Karate Kid a co-production with a Chinese partner, was gifted a much sought-after Golden Week holiday release; all-American blockbusters such as The Amazing Spider-Man and The Dark Knight Rises are often forced to play against each other to stop them squeezing out indigenous productions. Audiences, as well as the authorities, seem to appreciate a Hollywood kowtow. In disaster epic 2012, a White House staffer lavishes praise on Chinese scientists when an ark they've designed saves civilisation. At this point in the proceedings, filmgoers sometimes rose to deliver a spontaneous standing ovation.

Among Hollywood's old guard, all this has provoked a certain amount of disquiet. A producer, anonymous for fear of offending his industry's new masters, was quoted by the Los Angeles Times as complaining: "It's a clear-cut case – maybe the first I can think of in the history of Hollywood – where a foreign country's censorship board deeply affects what we produce."

There have been complaints that both America and the rest of the world are being given an unduly rosy portrait of a repressive behemoth. China's social injustices, human rights abuses and imperial aspirations are, it's suggested, being discreetly veiled from view.

Still, what's happened with Red Dawn isn't exactly unprecedented. During the first world war, Cecil B DeMille made a film called The Cheat with a Japanese villain. In 1923 the film was reissued, but by then Japan had become an American ally. Without benefit of digital technology, the wily oriental was quickly turned into a Burmese ivory king.

If Hollywood now finds itself cheerleading for an assertive superpower, that isn't new either. For almost a century, Tinseltown buttressed America's own hegemony by puffing up the American way to sell more movie tickets on the home front. If economic success is winning communist China a piece of that pie, well, put that down to capitalism's market forces.

David Cox

Privacy and data protection developments in 2013: Google, Facebook, Leveson and more

2013-03-11T12:29:00+00:00

Data protection law was designed to be a fundamental and concrete dimension of the individual’s right to privacy, the primary safeguard against misuse of personal information. Given those ambitions, it is surprisingly rarely litigated in the UK. It also attracts criticism as imposing burdensome bureaucracy but delivering little in the way of tangible protection in a digital age. Arguably then, data protection law has tended to punch below its weight. There are a number of reasons for this.

One is that Directive 95/46/EC, the bedrock of data protection laws in the European Union, is the product of a largely pre-digital world; its drafters can scarcely have imagined the ubiquity of Google, Twitter, Facebook and the like.

Another is that in the UK, the evolution of Article 8 ECHR and common law privacy and breach of confidence actions has tended to deprive the Data Protection Act 1998 of the oxygen of litigation – before the House of Lords in Campbell v MGN [2004] UKHL 22, for example, it was agreed that the DPA cause of action “added nothing” to the supermodel’s breach of confidence claim (para. 130).

A further factor is that the DPA 1998 has historically lacked teeth: a court’s discretion to enforce subject access rights under s. 7(9) is “general and untrammelled” (Durant v FSA [2003] EWCA Civ 1746 at para. 74); damages under s. 13 can only be awarded if financial loss has been incurred, and the Information Commissioner has, until recently, lacked robust enforcement powers.

This landscape is, however, undergoing very significant changes which (one hopes) will improve data protection’s fitness for purpose and amplify its contribution to privacy law. Here is an overview of some of the more notable developments so far in 2013.

The draft Data Protection Regulation

The most fundamental feature of this landscape is of course EU law. The draft DP Regulation, paired with a draft Directive tailored to the crime and security contexts, was leaked in December 2011 and published in January 2012 (see Panopticon’s analysis here). The draft Regulation, unlike its predecessor would be directly effective and therefore not dependent on implementation through member states’ domestic legislation. Its overarching aim is harmonisation of data protection standards across the EU: it includes a mechanism for achieving consistency, and a ‘one-stop shop’ regulatory approach (i.e. multinationals are answerable only to their ‘home’ data protection authority). It also tweaks the law on international data transfers, proposes that most organisations have designated data protection officers, offers individuals a ‘right to be forgotten’ and proposes eye-watering monetary penalties for data protection breaches.

Negotiations on that draft Regulation are in full swing: the European Parliament and the Council of the European Union’s DAPIX (Data Protection and Information Exchange) subgroup working on their recommendations separately before coming together to approve the final text (for more detail on the process, see the ICO’s outline here).

What changes, if any, should be made to the draft before it is finalised? That rather depends on who you ask.

In January 2013, the UK government set out its views on the draft Regulation. It did so in the form of its response to the recommendations of the Justice Select Committee following the latter’s examination of the draft Regulation. This is effectively the government’s current negotiation stance at the EU table. It opposes direct effect (i.e. it wants a directive rather than a regulation), thinks the ‘right to be forgotten’ as drafted is misconceived, favours charging for subject access requests and opposes the mandatory data protection officer requirement. The government considers that promoters of the draft have substantially overestimated the savings which the draft would deliver to business. The government also “believes that the supervisory authorities should have more discretion in the imposition of fines and that the proposed removal of discretion, combined with the higher levels of fines, could create an overly risk-averse environment for data controllers”. For more on its stance, see here.

The ICO has also has significant concerns. It opposes the two-stream approach (a mainstream Regulation and a crime-focused Directive) and seeks clarity on psedonymised data and non-obvious identifiers such as logs of IP addresses. It thinks the EU needs to be realistic about a ‘right to be forgotten’ and about its power over non-EU data controllers. It considers the current proposal to be “too prescriptive in terms of its administrative detail” and unduly burdensome for small and medium-sized enterprises in particular.

Interestingly, while the ICO favours consistency in terms of sanctions, it cautions against total harmonisation on all fronts: “Different Member States have different legal traditions. What is allowed by law is not spelled out in the UK in the way that it is in some other countries’ legal systems. The proposed legislation needs to reflect this, particularly in relation to the concept of ‘legitimate interests’.” For more on the ICO’s current thinking, see here.

Those then are the most influential UK perspectives. At an EU level, the European Parliament’s report on the draft Regulation is more wholeheartedly supportive. The European Parliament’s Industry Committee is somewhat more business-friendly in its focus, emphasising the importance of EU-wide consistency and a ‘one-stop shop’. Its message is clear: business needs certainty on data protection requirements. It also urges further exemptions from data protection duties for small and medium-sized enterprises “which are the backbone of Europe’s economy”. The Industry Committee’s views are available here.

Negotiations continue, the aim being to finalise the text by mid-2013. The European Parliament is likely to press for the final text to resemble the draft very closely. On the other hand, Ireland holds the Presidency of the Commission and of DAPIX – until mid-2013. Its perspective is probably closer to the UK ICO’s in tenor. There are good prospects of at least some of their views to be reflected in the final draft.

A number of the themes of the draft Regulation and the current negotiations are already surfacing in litigation, as explained below.

The Leveson Report

Data protection legislation in the UK will be affected not only by EU developments but by domestic ones too.

In recent weeks, debate about Leveson LJ’s report on the culture, practices and ethics of the press has tended to focus on the Defamation Bill which is currently scraping its way through Parliament. In particular, the debate concerns the merits of an apparently-Leveson inspired amendment tabled by Lord Puttnam which, some argue, threatens to derail this legislative overhaul of libel law in the UK (for one angle on this issue, see David Allen Green’s piece in the New Statesman here).

The Leveson Report also included a number of recommendations for changes to the DPA 1998 (see Panopticon’s posts here and here). These included overhauling and expanding the reach of the ICO and allowing courts to award damages even where no financial loss has been suffered (arguably a befitting change to a regime concerned at heart with personal privacy).

The thorniest of Leveson LJ’s DPA recommendations, however, concerned the wide-ranging ‘journalism exemption’ provided by s. 32. The ICO has begun work on a code of practice on the scope and meaning of this exemption. It has conducted a ‘framework consultation’, i.e. one seeking views on the questions to be addressed by the code, rather than the answers at this stage (further consultation will happen once a code has been drafted).

There is potential for this code to exert great influence: s. 32(3) says that in considering whether “the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with” any relevant code of practice – if it has been designated by order of the Secretary of State for this purpose. There is as yet no indication of an appetite for such designation, but it is hoped that, the wiser the code, the stronger the impetus to designate it.

The ICO’s framework consultation closes on 15 March. Watch out for (and respond to) the full consultation in due course.

Google – confidentiality, informed consent and data-sharing

Google (the closest current thing to a real ‘panopticon’?) has been the subject of a flurry of important recent developments.

First, certain EU data protection bodies intend to take “repressive action” against some of Google’s personal data practices. These bodies include the French authority, CNIL (the Commission nationale de l’informatique et des libertés) and the Article 29 Working Party (an advisory body made of data protection representatives from member states). In October 2012, following an investigation led by CNIL, the Working Party raised what it saw as deficiencies in Google’s confidentiality rules. It recommended, for example, that Google provide users with clearer information on issues such as how personal data is shared across Google’s services, and on Google’s retention periods for personal data. Google was asked to respond within four months. CNIL has reported in recent weeks that Google did not respond. The next step is for the Working Party “to set up a working group, led by the CNIL, in order to coordinate their repressive action which should take place before summer”. It is not clear what type of “repressive action” is envisaged.

Google and the ‘right to be forgotten’

Second, Google is currently involved in litigation against the Spanish data protection authority in the Court of Justice of the EU. The case arises out of complaints made to that authority by a number of Spanish citizens whose names, when Googled, generated results linking them to false, inaccurate or out-of-date information (contrary to the data protection principles) – for example an old story mentioning a surgeon’s being charged with criminal negligence, without mentioning that he had been acquitted. The Spanish authority ordered Google to remove the offending entries. Google challenged this order, arguing that it was for the authors or publishers of those websites to remedy such matters. The case was referred to the CJEU by the Spanish courts. The questions referred are available here.

The CJEU considered the case at the end of February, with judgment expected in mid-2013. The case is obviously of enormous relevance to Google’s business model (at least as regards the EU). Also, while much has been made about the ‘right to be forgotten’ codified in the draft EU Regulation (see above), this Google case is effectively about whether that right exists under the current law. For a Google perspective on these issues, see this blog post.

Another development closer to home touches on similar issues. The Court of Appeal gave judgment last month in Tamiz v Google [2013] EWCA Civ 68. Mr Tamiz complained to Google about comments on the ‘London Muslim’ blog (hosted by Google) which he contended were defamatory in nature. He asked Google to remove that blog. He also sought permission to serve proceedings on Google in California for defamation occurring between his request to Google and the taking down of the offending blog. Agreeing with Google, the Court of Appeal declined jurisdiction and permission to serve on Google in California.

Mr Tamiz’ case failed on the facts: given the small number of people who would have viewed this blog post in the relevant period, the extra-territorial proceedings ‘would not be worth the candle’.

The important points for present purposes, however, are these: the Court of Appeal held that there was an arguable case that Google was the ‘publisher’ of those statements for defamation purposes, and that it would not have an unassailable defence under s. 1 of the Defamation Act 1996. Google provided the blogging platform subject to conditions and had the power to block or remove content published in breach of those conditions. Following Mr Tamiz’s complaint, Google knew or ought to have known that it was causing or contributing to the ongoing publication of the offending material.

A ‘publisher’ for defamation purposes is not co-extensive with a ‘data controller’ for DPA purposes. Nonetheless, these issues in Tamiz resonate with those in the Google Spain case, and not just because of their ‘right to be forgotten’ subtext. Both cases raise this question: it is right to hold Google to account for its role in making false, inaccurate or misleading personal information available to members of the public? If it is, another question might also arise in due course: to what extent would Leveson-inspired amendments to the s. 32 DPA 1998 exemption (on which the ICO is consulting) affect service providers like Google?

Facebook, Google and jurisdiction

The Google Spain case also involves an important jurisdictional argument. Google’s headquarters are in California. It argued before the CJEU that Google Spain only sells advertising to the parent company, and that these complaints should therefore be considered under US data protection legislation. In other words, it argues, this is not a matter for EU data protection law at all. The Spanish authority argues that Google Spain’s ‘centre of gravity’ is in Spain: it links to Spanish websites, has a Spanish domain name and processes personal data about Spanish citizens and residents.

Victory for Google on this point would significantly curtail the data protection rights of EU citizens in this context.

Also on jurisdictional matters, Facebook has won an important recent victory in Germany. Schleswig-Holstein’s Data Protection Commissioner had ruled that Facebook’s ‘real names policy’ (i.e. its policy against accounts in psuedonymous names only) was unfair and unlawful. The German administrative court granted Facebook’s application for the suspension of that order on the grounds that the issue should instead be considered by the Irish Data Protection Authority, since Facebook is Dublin-based.

Here then, is an example of ‘one-stop shop’ arguments surfacing under current EU law. The ‘one-stop shop’ principle is clearly very important to businesses. In the Facebook case, it would no doubt say that its ‘home’ regulator understands its business much better and is therefore best equipped to assess the lawfulness of its practices. The future of EU law, however, is as much about consistency across member states as about offering a ‘one-stop shop’. The tension between ‘home ground advantage’ and EU-wide consistency is one of the more interesting practical issues in the current data protection debate.

Enforcement and penalties issued by the ICO

One of the most striking developments in UK data protection law in recent years has been the ICO’s use of its enforcement and (relatively new) monetary penalty powers.

On the enforcement front, the Tribunal has upheld the ICO’s groundbreaking notice issued against Southampton City Council for imposing audio recording requirements in taxis (see Panopticon’s post here).

The issuing of monetary penalties has continued apace, with the ICO having issued in the region of 30 notices in the last two years. In 2013, two have been issued.

One (£150,000) was on the Nursing and Midwifery Council, for losing three unencrypted DVDs relating to a nurse’s misconduct hearing, which included evidence from two vulnerable children. The second (£250,000) was on a private sector firm, Sony Computer Entertainment Europe Limited, following the hacking of Sony’s PlayStation Network Platform in April 2011, which the ICO considered “compromise[ed] the personal information of millions of customers, including their names, addresses, email addresses, dates of birth and account passwords. Customers’ payment card details were also at risk.”

In the only decision of its kind to date, the First-Tier Tribunal upheld a monetary penalty notice issued against Central London Community Care NHS Trust for faxing patient details to the wrong number (see Panopticon’s post here). The First-Tier Tribunal refused the Trust permission to appeal against that decision.

Other penalty notices are being appealed to the Tribunal – these include the Scottish Borders notice (which the Tribunal will consider next week) and the Tetrus Telecoms notice, the first to be issued under the Privacy and Electronic Communications Regulations 2003.

It is only a matter of time before the Upper Tribunal or a higher court considers a monetary penalty notice case. At present, however, there is no binding case law. To that extent, the monetary penalty system is a somewhat uncertain business.

The question of EU-wide consistency raises more fundamental uncertainty, especially when one considers the mandatory fining regime proposed in the draft EU Regulation, with fines of up to €1,000,000 or 2% of the data controller’s global annual turnover.

By way of contrast, 13 administrative sanctions for data protection breaches were issued in France in 2012, the highest fine being €20,000. Enforcement in Germany happens at a regional level, with Schleswig-Holstein regarded as on the stricter end; overall however, few fines are issued in Germany. How the ‘one-stop shop’ principle, the consistency mechanism and the proposed new fining regime will be reconciled is at present anyone’s guess.

From a UK perspective, however, the only point of certainty as regards monetary penalty notices is that there will be no slowing down in the ICO’s consideration of such cases in the short- to medium-term.

It is of course too early to say whether the developments outlined above will elevate data protection law from a supporting to a leading role in protecting privacy. It is clear, however, that – love them or hate them – data protection duties are increasingly relevant and demanding.

Robin Hopkins

Ai Weiwei to release heavy metal album

2013-03-11T10:22:02+00:00

Chinese artist has written nine rock-tinged tracks for music debut hot on the heels of Gangnam-style video

First he released a Gangnam-style video, then he hobnobbed with Elton John. It was perhaps inevitable that sooner or later Ai Weiwei would dabble in music. Few, however, would have predicted that his genre of choice would be heavy metal.

The outspoken Chinese artist is releasing an album of metal-tinged songs, with music by the rock musician Zuoxiao Zuzhou – a friend who was briefly questioned during Ai's 2011 detention.

"I really loved it. I had to make so much effort; I have never known music before. I'm really very passionate," said Ai, who wrote the lyrics and sings.

The artist said his interest in music was piqued during his 81-day disappearance, which supporters said was state retaliation for his activism. Officials accused the company handling his affairs of evading taxes – later hitting him with a £1.5m tax bill – and said his case was unrelated to human rights.

"To tell you the truth, I never listened to music. Then, during my detention, the guards were so bored they kept saying to me, 'Can you sing a song?'" Ai said.

"I felt so sad I couldn't sing any except the revolutionary ones we had to learn when we were growing up … It would have made the time seem much shorter.

"After I came out, I realised I had never really listened to music or sung, so I decided to make an album. I know so many artists and musicians and they were really supportive."

Ai said the album was being mixed, but he had no idea how to distribute it and would have to ask John for advice.

The singer dedicated a concert in Beijing to Ai last year, prompting authorities to harden their line on performances by foreign artists.

The star has been an inspiration, Ai said: "I was impressed by his very warm heart and passion and the expression of the music, so that gave me a clear push for making my own album. I will send it to him and ask his opinion. I haven't asked him for advice – I will surprise him."

The eclectic recording contains nine tracks. "Some are like heavy metal, some are more punkish, and some are more pop," Ai said.

He did not cite specific musical influences, but recalled listening to Laurie Anderson during his days in New York in the 1980s and soaking up the dance tracks when he lived above a disco in the city.

"I saw the place in daytime and thought it was so cheap," he explained ruefully.

Ai will provide his own cover art – still a work in progress, he said – and film a video, though he declined to promise more dancing.

He is already at work on that difficult second album, which sounds somewhat closer to his new friend John's oeuvre.

"It's more like love songs; it will be softer than the first. There's no heavy metal on that one," he revealed.

Tania Branigan

Internet Surveillance: a despot’s dream…

2013-03-10T21:20:29+00:00

Imagine you’ve just been appointed the head of the online secret police for an oppressive dictatorship. Your leader comes to you with a worried expression. The internet bothers him, he tells you. People get to say whatever they want, to talk to whoever they want, and it’s spreading dissent and destabilising the government. ‘It’s a disaster,’ he says. ‘What are you going to do about it? We need to keep this under control.’

You think about it a bit and then come up with a plan. Our main problem, you tell him, is that we don’t know enough about what is going on. We need to monitor everything. ‘If we know who is talking to who, what sites they’re visiting on the internet, which social networking systems they’re using, and for what, then we can start to take back control.’

A smile starts to appear on the leader’s face. ‘What next?’ he asks.

‘Next we need to set up a system to be able to search through all that information – some kind of filtering system to find what we want to find.’

‘You mean like a kind of Google for private communications and internet activities?’

‘Exactly. We can search for whatever we want – and whoever we want. But there’s more: we can use that information to do much more. They think the internet’s a tool for their free speech – we can turn it into a way to find them, to arrest them, to block them, to find out who likes what they say. We can access their activities in real time and respond to them before they know what’s happening. We can turn the tables on them.’

Your leader smiles and rubs his hands together. ‘Go for it,’ he says.

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A dystopian vision?

This may seem like a dystopian vision – but it is, in essence, exactly what the Communications Data Bill is designed to do. It is set up to allow full access to all internet activities, both in a stored form for later access and analysis and a ‘real-time’ feed, allowing monitoring of what people are doing while they’re doing it. It then legislates for a filtering system to be created, a system by which those in authority can search through all the data gathered to find what they want, using whatever terms they want. No warrants are required so long as the person mandating the search is sufficiently senior – and currently, precisely what level of seniority is required in each relevant authority is not specified in the bill, leaving it to the discretion of the authorities concerned.

There are similar initiatives around the world: two prime examples are those proposed in the current review of Australia’s National Security laws and, to a certain extent, the existing Swedish FRA-Law. The United States does it a bit differently: it seems that the National Security Agency (NSA) is just doing all the surveillance, if a key whistleblower is to be believed, without an official legal basis. It’s something that ‘authorities’ seem to have decided is well worthwhile – primarily, it seems, for reasons described above.

One of the characteristics of these laws and systems is that the politicians who put them forward and vote for them appear to be ignorant of both what they do and what they imply. Indeed, politicians often appear not to understand the digital world much, which is one of the reasons we end up with messes such as the Digital Economy Act – but their secret policemen are not in the dark. That’s why it is the ‘intelligence services’ that seem to be the driving force behind the Communications Data Bill, more so even than the police, and why the NSA in the US, as noted above, appears to do pretty much exactly the same, without even a pretence of a legal basis.

Panicking about the Internet

In many ways, the authorities are panicked about the internet. It seems to be too much out of control – and too much beyond their understanding. They used to be able to tap phones and intercept mail, to watch people on the street and to interrogate their friends and connections – now that seems to be much harder. When they sort out systems to tap into one form of communication, the internet develops another – so laws like the Data Retention laws cover email and phones, but they don’t cover social networking sites or instant messaging, because those weren’t sufficiently understood or developed when the laws were drafted. They’ve learned a lesson from that: don’t try to specify too carefully. Instead, gather everything.

There is a logic to it – new forms of communication are being developed all the time and people will find new ways to use existing forms. Conversations can develop in the comments on a blog or even a newspaper article – so all that would need to be monitored. Even reviews of products on Amazon are being used for creative conversations – so that needs to be monitored too. In the end, if you follow this path, the only conclusion is to monitor everything.

One particular red herring in the bill is that it won’t monitor the ‘content’ of communications. That’s fine if you’re looking at conventional forms of communication – emails and phone calls etc – but when you start looking at websites, even a site’s URL can indicate its contents. More to the point, by monitoring people’s behaviour you can profile them – and tap into already highly-developed behavioural-targeting systems. These have been created for advertising, but can be used just as effectively for political, racial and religious profiling.

This kind of universal data gathering, from the perspective of the secret policeman, is both logical and necessary – but it has huge implications, and not just for the obvious issue of privacy. The first and most important effect is a real and direct one: people can be located and prevented from exercising their freedom of expression. Two immediate examples spring to mind. The first is the Nightjack blogger, whose blog provided rare insight into the real life of the police, as well as being fascinating and well enough written to win the Orwell Prize for blogging. His blog was shut down because he was ‘outed’ by The Times – nefariously – and he was unable to operate without the anonymity that his blog provided. If there is universal surveillance, and if we know there is universal surveillance, it will be much easier to break people’s anonymity and pseudonymity. That alone will have a chilling effect, deterring people from blogging if they feel they’re likely to be easy to locate. For some, of course, it’s more than a chilling of speech – it can be deadly. Bloggers in Mexico regularly face very real danger and anonymity is crucial to their safety. Many have been hunted down and executed by drugs cartels. Systems like the one being proposed would make it far easier for them to be found, and given the likelihood of collusion between the cartels and certain elements of the police, the consequences could be hideous.

Function creep – and other risks…

The legal implications may just be the tip of the iceberg. The idea that the police and others authorised to take action under this kind of legislation will only use it for the purpose originally specified is naïve to say the least. Have we learned nothing from the phone-hacking saga, particularly about the way the police can potentially be subverted by other ‘interests’? Function creep is real, both in terms of legislation and in the use of the technology itself.

It is also important to understand that this kind of profiling could be extended to other areas of the internet. People could be ‘steered away’ from particular sites without knowing it. If a large number of ‘suspicious’ people visit a particular website, the site could end up being blocked – or worse, those who create and support that site could be located and arrested. Other forms of data can make the whole thing even worse – from facial profiling of photos on the net to geo-location data that can be used not just to locate people in real time but to analyse their movements over a period in order to predict where they might be. When you combine that with the kind of social networking and related data that might also be gathered, the opportunity to control and even shut down protests or other gatherings becomes more extreme – again, the effect on free expression, on political discourse both offline and online, could be significant.

Experts doubt whether systems like this will even work. The real ‘villains’ – the terrorists and paedophiles that are generally used to justify such proposals – are likely to know how to evade the surveillance. They often have a great deal of practice in covering their tracks and generally take more precautions to avoid being caught.

Stimulating a trade in surveillance technology?

There is another key potential impact of the Communications Data Bill: the law supports the development of technology for surveillance and control. The bill currently estimates that it will cost £1.8bn (US$2.9bn) to implement: that’s £1.8bn on research, development and production of surveillance technologies. Companies will be queuing up for a share of that money – and when they use it, what will they do with it? The products developed – both hardware and software – won’t only be used by our ‘good’ government. Companies will want to sell them elsewhere – or at the very least use the expertise that they’ve developed while building them in further contracts. Who will those contracts be with? There will be a ready market for this kind of surveillance system in any regime with even the smallest degree of an authoritarian streak. Not only will free speech be chilled in our own country, but elsewhere around the world. The concept of universal surveillance will be given the green light.

Universal internet surveillance not only impacts upon privacy, it impacts upon our whole lives – particularly as more aspects of our lives either take place online or have an online element. It chills speech. It can block free association and free assembly. It allows each and every one of us to be pro- filed in great detail. It puts tools of immense power into the hands of exactly those people who can be least trusted to use it – and it should be stopped. The question we must ask is what kind of a society do we want – one with freedom, or one where all the power is in the hands of the authorities?

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(This story first appeared in Index on Censorship – Digital Frontiers – which you can buy here)

ECHR, international law and Abu Qatada

2013-03-10T17:24:23+00:00

Last week it was reported that the Home Secretary wanted to take the UK out of the European Convention on Human Rights (ECHR) and this week she repeated that objective, if the Tories won the 2015 election. Her cabinet colleague Chris Grayling (Secretary of State for Justice and Lord Chancellor) has said that the Tories will repeal the Human Rights Act 1998 (HRA) should they win the 2015 election. The HRA and ECHR has become the place for politicians (particularly from the right of politics) to lay the blame when they don’t get their own way. The very point of the HRA and the ECHR though is to prevent the State from acting in a way that is incompatible with basic rights and freedoms recognised as being essential in a free and democratic society.

One of the most recent frustrations of the UK Government is the inability of it to return Abu Qatada to the Kingdom of Jordan where he is wanted on terrorism charges. Abu Qatada’s fundamental rights applicable to him as a human being have thus far prevented him from being deported from the UK to the Kingdom of Jordan (although the Special Immigration Appeals Commission prevented his extradition on the basis of his right to a fair trial over fears evidence obtained through torture would be used in his trial). However, the ECHR is not the only prohibition in relation to torture.

There is an internationally recognised prohibition on torture. This prohibition has achieved jus cogens status. Jus cogens is a fundamental principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted. In other words, there are no circumstance under international law in which it is permissible to torture an individual; even someone who is as odious as Abu Qatada is alleged to be. The International Criminal Tribunal for the Former Yugoslavia recognised the prohibition of torture as having achieved jus cogens status in international law in its decision in Prosecutor v Furundzija (see paragraph 153). This means that the UK is bound by international law not to torture anyone. Of course, it never was the case that the United Kingdom had or was going to itself torture Abu Qatada; however, that brings us onto another principle of international law: non-refoulement.

Non-refoulement is a principle of customary international law. Customary international law arises from custom; which is an established pattern of action or behaviour that can be objectively verified. In the international context it refers to the legal norms that have developed through the customary exchanges between states over time. It is considered by the International Court of Justice (ICJ) and the United Nations as one of the primary sources of international law.

Non-refoulement as a principle is concerned with prohibiting the sending of one individual from one State to another where they will be tortured or face serious irreparable harm.

The principle of non-refoulement is primarily concerned with the area of international law covering refugees. The 1951 Convention on the Status of Refugees specifically prohibits non-refoulement in Article 33. However, it has been included in other international treaties such as the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (CAT). Article 3 of CAT clearly prohibits the expulsion, return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The United Kingdom signed CAT on 15 March 1985 and ratified it on 8 December 1988. There is an argument to be made that non-refoulement is at the very least customary international law if not jus cogens. However, the UK is bound by its obligations under CAT even if it were not considered to be customary international law or jus cogens.

Essentially, with or without the ECHR the United Kingdom would have been bound by international law not to extradite Abu Qatada to the Kingdom of Jordan while there were substantial grounds for believeing that he would have been tortured. Without the ECHR though there would have been no effective remedy for Abu Qatada to force the United Kingdom to adhere to its international obligations. That is because the United kingdom is not signatory to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR; which also prohibits torture and non-refoulement) thereby preventing him (or indeed anyone else) from pursuing a case before the Human Rights Committee (the body responsible for the interpretation and enforcement of the ICCPR). The UK does not accept the right of individuals to petition the Committee against Torture (responsible for CAT) under Article 22 of CAT. The ICJ is only for disputes between states and an individual is therefore unable to pursue a claim before that Court against a State. Without the HRA Abu Qatada (or indeed anybody else) would be unable to pursue human rights claims before the UK Courts. In other words, the United Kingdom would be free to act against its clear international obligations.

What is the point of all of this?

The main point is to illustrate that the ECHR is not some unusual document in what it does. There is a substantial body of international law protecting the human rights of individuals. The United Kingdom is under an international obligation not to torture an individual and also not to expel, extradite or return an individual to a state where they are likely to be tortured (or face irreparable harm). With or without the ECHR the UK would have faced enormous international pressure not to transfer Abu Qatada to the Kingdom of Jordan while there was a substantial risk of him being tortured by the Jordanian authorities.

The international law exists to protect individuals; especially individuals, like Abu Qatada, who are at substantial risk of torture because of their activities. Domestically we have the HRA incorporating elements of the ECHR into our law. It’s not perfect and there is a lot more that could have been included into the HRA to make it a fuller human rights document. However, it is a substantially good thing and it largely reflects the position in international law.

The Tories simply want to leave the ECHR to avoid situations like Abu Qatatda; in essence to decide just who human rights apply to and who they don’t apply to. It’s not about reclaiming British sovereignty, but rather about trying to create a situation where they can breach international law with little or no international intervention to prevent it from happening (i.e. being able to do exactly what they want when they want).

Leaving the ECHR would almost certainly increase the pressure on the UK to adopt optional protocol 1 to the ICCPR or permit individuals to refer matters to the Committee against Torture under Article 22 of CAT. If the UK left the ECHR and did not undertake one of the two options just mentioned it would become one of very few states with no substantial international oversight of the way it treats those within its jurisdiction and that would be an unfortunate position to be in.

The Exemption Index: Section 14 – Vexatious requests

2013-03-10T14:52:23+00:00

In the first of a new series, FOI Man looks at section 14 of the Freedom of Information Act – covering vexatious requests – and what every FOI Officer – and every requester – needs to know about it.

Summary

If you’ve ever watched Monty Python and the Holy Grail, you’ll recall King Arthur’s encounter with the Black Knight. The knight challenges him to combat. They battle. Arthur chops his arm off and claiming victory, makes to leave. But the knight, in denial of all sense (yes, I know it’s a comedy, but bear with me on this), won’t accept defeat and insists that Arthur keep fighting. No matter how many limbs Arthur lops off, the knight is insistent that the conflict continue. Eventually Arthur walks off whilst the knight, now literally without a leg to stand on, continues to shout after him.

But when you’re providing a public service and legally obliged to respond to enquiries, you can’t just walk off. Or can you?

That’s what section 14 provides for. FOI Officers rarely deal with medieval knights, but we are familiar with that kind of bloody-minded (if not bloody-bodied) determination. There are people who refuse to take no for an answer. There are others who are more like an attention-seeking child repeatedly prodding its older sibling or a kitten jumping up and down on a weary old dog. The answers aren’t necessarily important – it’s about provoking a response.

More recently, it’s becoming clear that section 14 is FOI’s answer to gluttony. It can be used to refuse requests where one request threatens to eat the public authority out of house and home.

Information affected

Virtually anything. It’s the nature of the request itself that triggers this provision, not the information requested.

Things that FOI Officers need to know

“Vexatious” isn’t defined in the Act. So the case law and guidance that is available is essential to understanding how it can be used.
Vexatious requests have to be refused in writing. Allowing the requester to appeal the decision through internal review is a good idea given the controversial nature of these refusals.
When considering whether a request should be refused as being vexatious, the Information Commissioner’s 5 tests may help, but Justice Wikeley, who recently analysed section 14 in detail as part of an Upper Tribunal decision, suggests four things to consider: the burden, the motive, the value or serious purpose, and whether the request causes distress or harassment to staff.
- The burden – consider the number of requests previously made; the breadth of the request (but consider asking them to narrow their request or refusing on cost grounds first); the pattern of requests (eg are several made within days of each other?); and the duration (has this been going on for some time, and does this suggest it will continue in the future?). Recent case law suggests that where requests can’t be refused on cost grounds (section 12 – for example if it would take a long time to read through and redact material), section 14 may be used. However, it is still unclear where the line can be drawn – the information in these cases ran to thousands of pages. The key, almost certainly, is going to be to demonstrate that the work involved is disproportionate (see paras 15 and 16) – and that will vary depending on the size and complexity of the organisation, and of course what the purpose of the request is.
- Motive – you can’t be “purpose-blind” in considering this aspect of FOI. It will often be difficult to be sure what someone’s motive is. In many cases, where you do know – eg you know the requester is a journalist researching a story – it is likely to be a reason NOT to use section 14.
- Value or serious purpose – obviously closely connected to considerations of motive. And equally difficult. It might be that a series of requests starts out as having an obvious purpose (eg finding out information relating to a legitimate complaint), but over time “drifts” into vexatiousness as the requester draws in more and more unconnected issues. FOI Officers should never consider using section 14 purely because they can’t see a serious purpose or value behind a request – only if there are other reasons to think a request is vexatious.
- Causing harassment and distress to staff – if a request (or series of requests) appears to target an individual obsessively, is aggressive or uses what Justice Wikeley describes as “intemperate language”, it can be used as evidence that a request is vexatious. It is probably safest to be able to point to other reasons as well.
Case law increasingly supports a “holistic” interpretation. As Justice Wikeley put it (para 45), the danger is “not being able to see the vexatious wood for all the individual trees”. Basically, listen to your gut.
EIR requests – regulation 12(4)(b) – “manifestly unreasonable” – is broadly equivalent to FOI’s section 14 (para 30). Therefore much of what is said here will apply to that exception.
Repeated requests – for a long time, section 14(2) of FOI, covering repeated requests, has been talked about as being a separate provision. Justice Wikeley thinks it should be seen more as a subset of vexatious requests.

Things that requesters need to know

Vexatious sounds bad. Most people aren’t going to like being called vexatious. But don’t take it too personally if you receive a response citing section 14 – the flip side of recent case law is that requests might well be classed as vexatious even if you had no intention to annoy. It is fundamentally a tool to help public authorities manage the workload of FOI, just as section 12 and the fees regulations are.
Avoiding getting a request refused under section 14 – don’t get personal. Asking questions about an individual member of staff (eg “I want to know how much John Smith has claimed in expenses?”) is likely to get people wondering if you’re trying to harass Mr Smith, especially in the context of a long standing correspondence or dispute with that member of staff. If the FOI Officer asks you to narrow down your request, be cooperative, especially if they explain that it will take a long time to review and redact relevant material. If you ask about zombies, aliens and the supernatural, you’re just as likely to receive a refusal under section 14 as you are to receive a witty response – quite rightly as you’re wasting taxpayer’s money.
Challenging a decision – demonstrate that your request has a serious purpose; question how much work the authority is claiming is involved and whether it imposes a disproportionate burden (for example, a Government department is more likely to have the resources to review 1000 pages of information than, say, your local GP surgery); keep calm – otherwise you may just compound the impression of an obsessive person causing undue harassment.

Essential case law

Information Commissioner v Devon CC and Dransfield [2012] UKUT 440 (AAC) – Justice Wikeley’s important Upper Tier Tribunal decision
Independent Police Complaints Commission v Information Commissioner (EA/2011/022) and Salford City Council v Information Commissioner and Tiekey Accounts (EA/2012/0047) which both deal with the issue of requests which impose a burden on authorities

FOI Man says…

Could Wikeley make FOI changes less likely? (18 February 2013)
Is the Tribunal getting touchy? (3 April 2012)
You’re getting me vexed (5 September 2011)

Regulating Google Glasses

2013-03-09T11:22:54+00:00

If you know where to go in the state of Washington in the USA, you’ll spot this clever example of privacy iconography.

Before they have been officially released, a campaign has started to discourage Google Glass geeks from recording material that really ought to remain private. Seattle’s 5 Point Cafe claims to be the first Seattle business to ban in advance Google Glasses. It’s not just a gimmick to encourage people to use the device. I think it's more an attempt to protect a business, When your advertising strap line is “Alcoholics serving alcoholics since 1929”, you can understand why your clients might not want to draw too much attention to themselves.

Not everyone wants to be photographed enjoying a great breakfast with a Bloody Mary in a pint glass, no matter how rejuvenating it is.

As the cafe management recently explained on it's Facebook page to someone who suggested that this was just a publicity stunt: "Look, we threw a customer out for taking an unwanted photo of another customer with his smartphone not too long ago. Google glasses have the ability to video tape and post to the web. Many of our regulars want to be anonymous, and we appreciate that. If you want to wear Google glasses, cool. But you aren't allowed to wear them inside The 5 Point. Wear them outside, take them off inside. We're promoting respect."

So, how will cinema and theatre attendants deter Google Glass wearers from recording these shows prior to uploading them on the Internet for anyone to enjoy? Those keen on digital rights management could be in for a fun time. This may well be a game changer in the entertainment industry. And for the rest of us, too. How will court ushers, for example, ensure that legal proceedings aren’t recorded? But at least we may finally get to know what goes on when a jury retires to consider their verdict.

And how will this product ever get accepted by some of the German data protection regulators, given what they already think of the Street Viewservice?

Perhaps the Article 29 Working Party might be persuaded to write an opinion on such a game changing device. And, if we were to wear Google Glasses while reading it, perhaps a Google translation service could decipher the text and present the reader with an analysis of what the authors actually meant to write.

[Note to Google Glass project team:
Yes, if asked, I would be delighted to take part in a UK Google Glass trial. And to blog about my experience. Please feel free to get in touch. You know where I am.]

Sources:

http://www.theregister.co.uk/2013/03/09/seattle_bar_bans_google_glass/

http://the5pointcafe.com/
https://www.facebook.com/photo.php?fbid=10151453972244277&l=def6088a7c

Image credit:

http://www.theregister.co.uk/2013/03/09/seattle_bar_bans_google_glass/

When is International Men's Day?

2013-03-08T14:44:56+00:00

When you ask me the above question, here's what I hear:

I think I am funny and original. I live in a bubble so privileged and sheltered from the real world that I cannot even imagine that at eight o'clock in the morning on March 8th I'm not even the first person to ask you that question.
Despite this International Women's Day clearly being a thing, I have never even given a single thought to why it might be a thing; why people feel there may be a need for it; how women's lives are different to my own little bubble of privilege.
On a day deliberately designated for the celebration of diversity and inclusion, I can't be bothered to take a second to think about whether my behaviour and comments are inclusive, or within the spirit of that day. Let's not even talk about all the other days of the year.

When you ask me the above question, here's how it might make me and others around us feel:

Dismissed and trivialised. It's bad enough that there were cupcakes involved.
Put on the spot. I can either stand up to you and be a role model to those around me, at the price of some significant personal discomfort, or I can not look in the mirror for the rest of the day. Either option will upset me sufficiently to distract me from doing my job.
Disappointed. Because really, you should know better, and there is no way in hell that I should have to deal with this.

And when I finally answer the above question, here are some things you maybe shouldn't do:

Be surprised that I spoke up for myself.
Look at me like I just kicked your puppy for telling you that "That'd be all the other days of the year."
Tell me you don't think that's quite true.

Just some food for thought.

Are you being served?

2013-03-08T13:53:49+00:00

Imagine your plane crashed on a desert island. Some tasks would immediately need to be carried out by the survivors. You would need some form of shelter, so anyone with building or carpentry skills could mean the difference between surviving and perishing. Medical skills would be essential to tend the wounded and also to care for new injuries or illnesses that would come about in the hostile environment. To protect people’s health, some rudimentary waste services would be required, if only to ensure that waste did not contaminate any fresh water, or attract pests and even predators. The number of complex tasks required – and the need to marshal resources properly – would inevitably mean that someone would have to be appointed to oversee the rudimentary system in operation. It’s highly likely that – barring an obvious candidate – the group would elect this person. And on the long, cold nights, even someone who could sing or play a guitar plucked from the wreckage of the plane would be highly prized, just to help the long dark hours pass by a little more easily.

I think it might be a while before one of the survivors stood up in one of the group meetings and said, “Look, I know the food and shelter and medical support is great, but I think we need to discuss setting up a newspaper”. A micro version of the public sector would be created long before the Daily Mail was.

Don’t get me wrong. After the apocalypse, Data Protection and FOI consultants are not going to be in high demand, which is why I’m learning the ukulele as a backstop. Meanwhile, the guy on my island who finds the really soft leaves that are a reasonable substitute for toilet paper would be made President for Life. However, a properly functioning society would certainly need journalists before it would have Data Protection and FOI officers, PR experts and people who do whatever it is that Dominic Cummings does at the Department for Education. It is vital that those in authority are held to account, and that decision-making that affects all is properly scrutinised. As soon as my putative island administrator started making decisions about the need for enforced polygamy, someone would start bribing his deputy for information and distributing critical reports on palm leaves.

But there is an attitude held by some (and not all) journalists that I think ignores the importance of the public sector to society, and aggrandises the role of hacks. The view seems to be that journalists are automatically crusaders for truth while public sector employees are all secretive, conspiratorial weasels just because they don’t answer FOI requests as expected. Heather Brooke’s statement that ‘public servants forget who they’re working for’ prompted me to write this but only because it’s the latest example of journalists bashing officials. I disagree with her statement because it’s a universal one about all public servants, rather than the one who disagreed with her on Twitter (a person who was not, as it happens, a public servant). I think talking about ‘public servants’ or ‘officials’ is unfair. Brooke has done this before, but it’s not fair to pick on her because the attitude that all public sector workers are the same is widely held. A lot of press coverage of the public sector – on FOI, strikes, cuts, spending – tends to lump millions of people under one whinging, incompetent banner.

The public sector is the backbone of society. Without it, we would live Hobbesian lives – nasty, brutish and short. If you disagree, collect your own rubbish, resurface the roads anywhere you choose to drive, prevent your neighbour from building a castle in his back garden without help, carry out your own hygiene inspections of restaurants, recycle your own bottles, remove your own diseased kidney, round up the abandoned children in your neighbourhood and look after them, teach your own kids, and hope that we don’t need to help the good folk of Syria any time soon. And with no public sector, there is no need for FOI and no need for those journalists who specialise in using it to criticise public servants.

My first experience as a public servant dealing with a journalist went as follows. A journalist I knew very vaguely rang me up for a “chat”. They asked my view on how councils were dealing with a specific issue, and I gave it. The journalist did not tell me they were writing a story and therefore, I had no idea what kind of story they were writing. Inevitably, it was critical of the approach being taken by councils, and used my quote out of context as a textbook example of the outrage in question. Nobody in my organisation was bothered – the attitude seemed to be that you hadn’t really arrived until a journalist had shat on you. You may think I was naïve but I was really disappointed – the journalist’s MO was discourteous and underhand.

Is it reasonable for me to judge all journalists by this one? Or at the other end of the scale, can I judge them all by the standard set by the sick bastard who dressed as a doctor so that he could photograph Gorden Kaye when he had been badly injured in a car accident? Is it fair for me to generalise about the press based on upskirt photos of celebrities, Daily Express headlines about immigration or News In Briefs? I suspect hacks would hope that I think of Cathy Newman, Peter Oborne or the Daily Mirror’s redoubtable Penman and Sommerlad when thinking of journalists. But if we’re allowed to pick the archetypes that suit us, why can’t I choose Piers Morgan? He’s a journalist. All journalists are like Piers Morgan. Journalists shouldn’t be such revolting tossers. Is this how it works?

Journalism is not a form of civic-minded volunteering. Journalists do a job, just like the rest of us. Some do a responsible and useful job that benefits society, and some piss their lives away filling the space around adverts with rehashed press releases. Heather Brooke wants public servants to remember who they work for. I agree with Heather: public servants work for the public, and not just one small part of it. The public service of answering FOI requests is for everyone, not just journalists. And as an aside, it’s worth remembering who journalists work for. For example, those that work for the national papers work for a small but highly specialised elite including a pornographer, a toff whose predecessors allowed their paper to support Hitler, a ruthless American mogul, a Russian oligarch, a charitable trust that sanctions questionable tax arrangements, and a pair of brothers who like transparency so much, they live on their own private island.

Public servants are not saints – far from it. The people who run public services and work in them are occasionally corrupt, ideological, incompetent and lazy, and there are plenty of excellent journalists who help to root out their failings. But the public sector employs millions of people. A small proportion of them resist FOI requests but most just get on with them like they get on with all of the other thankless tasks that the rest of society gives them. It’s easy and eye-catching to generalise about those few, but it’s not fair to do so. An FOI officer is often overworked, under pressure, and juggling a dozen requests at once. If your request is aimed at the wrong organisation, worded in an overly general or vague way, or covers too much territory, the fact that it is refused isn’t a sign of a conspiracy or an unhelpful FOI officer. It’s at least as likely to be a sign that the applicant didn’t do their research properly, or the evidence they’re after can only be found with a well-aimed shot at the target, rather than a drone strike.

The public sector has not been structured and restructured over many years with the sole purpose of ensuring that information about how it operates sits waiting in an easy-to-digest form, just in case a journo happens to want it. Public servants do three jobs at once, the ground shifts beneath them at a politician’s whim, and new tasks are thrown in without a moment’s notice. At no point does anyone get the chance to say “are we sure we’ve got absolutely complete records in case a journalist wants to ask a question and then say that we’re idiots?”

At the most basic level, hostility toward public servants is self-defeating – in my experience, many journalists understand the procedural elements of FOI less well as the public servants they deride. They’re frustrated because they don’t understand the process well enough. When I was an FOI officer, a journalist working for a national newspaper repeatedly made requests in batches to all councils, and they were so broad and vague, I would find several legitimate reasons to ask for clarification. Most of the time, he had so many requests he didn’t even have the time to respond, but even when he did, he was derisive and critical (despite not having made a valid request) and rarely provided what we needed. What would a normal person do in such circumstances? Be more or less helpful next time? If journalists find obstacles in their way, perhaps a more focussed, better written FOI request might get the information?

FOI does not give journalists speedy boarding. Other members of the public may have made requests before the journalist did, and it makes sense to answer requests in order. Not being able to ask every member of staff to search every file, directory or inbox in 18 or 24 hours is not automatically a sign of incompetence. It’s just as likely to be a sign that the applicant has asked for a shedload of information, possibly more than is sensible or possible within the rules.

It’s too easy to lump every public servant together and accuse them of blocking The Truth from coming out, just as it would be too easy to shout ‘Milly Dowler’s Mobile” at every journalist you meet. Life is more complicated than what can in fit in a headline or in 140 characters. Not all public servants are the same.

I have worked for six public sector organisations and – apart from the last one, which I joined at a very difficult time and never got to grips with – I was proud to work for all of them. That’s right, I was proud to be a public servant. I am glad I was not a journalist. I did a worthwhile job, and most of my colleagues I helped did much more important and socially necessary jobs than me. Whilst my current work as a private sector freelancer is immensely satisfying and allows me to do good work with a huge variety of great people, I miss the sense of working for an organisation that exists to serve the public. One day, I may go back to being a public servant – I would never rule it out. Sitting around the campfire, watching the remains of the plane smoulder on my desert island, what would you rather say when your fellow survivor asks what you did in the real world: “I helped people to find information and protected privacy” or “I went through David Cameron’s bins and wrote about it”?

Filed under: Another bunch of people who will now hate my guts, FOI Tagged: FOI, journalism, public servants

Why bother?

2013-03-08T13:10:40+00:00

It is a statutory duty to comply with the 20-working-day response time to a request made under the Freedom of Information Act 2000 (FOIA). It is breach of the Code of Practice issued by the Secretary of State to fail to respond promptly to a request for internal review of a FOIA refusal (and the IC recommends 20 working days for this as well). It is a statutory duty, breach of which is potentially a criminal offence, to fail to comply with an Information Notice or a Decision Notice issued by the Information Commissioner (IC).

With all this in mind, and with acknowledgement that this is copied in total from an IC Decision Notice FS50427906, read the following comments by the IC, on how the Cabinet Office (who, er, have poor FOI history) handled a specific request, and weep.

73. At every stage during the handling of these requests and the investigation of this case, the Cabinet Office has been responsible for causing severe delays. As noted above, the complainant did not receive a substantive response to his requests until more than a year had passed following his first request, and over eight months following the second.

74. These responses were only forthcoming after the Cabinet Office was ordered to provide these in the earlier decision notice issued by the Commissioner. Even then, the Cabinet Office did not respond within the time limit specified in the notice. The internal review was also late and again was only provided following the intervention of the ICO.

75. During the Commissioner’s investigation the responses provided to his office were frequently late and incomplete. This necessitated the issuing of an information notice, which the Cabinet Office also failed to comply with within the specified time.

76. Given this background, the Commissioner trusts that the Cabinet Office will view the steps required in this notice as providing an opportunity to demonstrate to the complainant its commitment to its obligations under the FOIA and to providing a better service than the complainant has received thus far.

77. A record of the various issues that have arisen in relation to these requests and during this investigation has been made by the ICO. Issues relating to responding to requests in accordance with the FOIA and about responding promptly to correspondence in section 50 investigations have been raised with the Cabinet Office by the ICO in the past. The Commissioner is concerned that, despite this, issues of such severity have arisen in relation to the requests in this case. It is essential that the Cabinet Office ensures that there is no repetition of these issues in relation to future requests.

Using the FOI Act! Training for requesters, 23 April 2013

2013-03-08T12:09:18+00:00

Do you want to learn how to use the Freedom of Information Act? Are you already using the Act, but want to know more about how the Information Commissioner and Tribunal are interpreting key provisions?

While making a FOI request is straightforward, making an effective request is more difficult. The Campaign's practical course is designed to help requesters make effective use of the legislation. The morning session provides a working guide to the legislation, covering both the Freedom of Information Act and parallel Environmental Information Regulations, and includes an interactive section on drafting requests. The afternoon session is more advanced and covers some of the key decisions made under both regimes and explains their implications for you. We think most requesters will benefit from attending the whole day, although you're free to attend only one of the sessions if you wish.

Further information and a booking form are available from the Campaign's website.

The importance of FOI training in public authorities

2013-03-08T00:42:22+00:00

A decision notice published by the Scottish Information Commissioner yesterday (7 March 2013) highlights why it is important that all staff within public authorities have at least a basic working knowledge of the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Decision 032/2013 concerned an information request made to NHS Fife. The applicant made an information request to NHS Fife on 2 August 2012 to which NHS Fife responded on 5 October 2012. This represents a significant delay on the 20 working days permitted by section 10(1) of the Freedom of Information (Scotland) Act 2002. The decision notice does not give any reason as to why it took NHS Fife so long to respond to the information request.

On 18 October 2012 the applicant wrote to NHS Fife requesting a review of their decision. The request for review was sent directly to a particular member of staff with whom the applicant had been having protracted correspondence. Unfortunately for NHS Fife that member of staff did not “recognise the significance” of the request for review under the Freedom of Information (Scotland) Act 2002 and consequentially did not take the action required to ensure that NHS Fife was able to respond within the timeframe permitted by section 21(1) of the Act (which is 20 working days).

NHS Fife’s explanation that the member of staff who received the request did not recognise the significance of a request for review under FOISA would suggest that something has went wrong procedurally and most probably around staff training. All staff within a public authority should be able to spot information requests and requests for review. Having identified an information request of request for review all staff should know what to do with such correspondence. When staff are not able to perform these tasks it can lead to problems such as in this case where a requirement for review went unanswered beyond the statutory deadline. As a consequence an application was made to the Commissioner and a decision notice has been issued.

This decision notice should serve as a reminder as to how important that all staff (whether they routinely deal with information requests or not) should have at least a basic knowledge of information access rights to ensure that public authorities comply with their obligations under the various access regimes.

Manchester: the ICO does it again

2013-03-07T21:42:31+00:00

An enormous crowd appeared on Tuesday to attend this ICO’s Data Protection Officer Conference in Manchester. Despite increasing capacity by over 60% this year, the venue simply wasn’t large enough to accommodate everyone who had wanted to attend. It shows how important all this privacy stuff has become.

I should report that almost everyone was on their best behaviour. The exhibitor’s stands were much appreciated – perhaps because the focus was on the many facets of the ICO, and the organisations that were not “commercial” in nature, but existed to share best practice and offer forums where similarly affected souls could work out how to deal with data protection issues at the coalface, as it were.

Francoise Le Bail, Director General for Justice at the European Commission was present and on fine form. Evidently, if there is a low level of trust in a country, then consumers won’t be as economically active on-line than if there were higher levels of trust. Given the fact that the UK has one of the highest internet penetration rates of any EU Member State, I can only assume that the UK enjoys a relatively high level of trust. But, I was too polite to put that point to the keynote speaker.

Deputy Commissioner David Smith made a very telling point when commenting on the latest proposals to harmonise EU privacy laws. As far as he was concerned, what was most important was that there should be greater consistency around Europe, as opposed to harmonisation. The law should be consistent with regard to national cultural sensitivities. So, if the German’s didn’t like Google’s Streetview service, then that was fine – so long as the Brits, who evidently liked it, could continue to have it. I am greatly simplifying David’s views, and I do apologise for this, but you get the gist.

Turning to those who misbehaved.

I’m not referring to those audience members who, during the Question Time session, applauded me when I asked if the ICO would prefer a power, rather than imposing civil monetary penalties on public authorities (and thus return public funds to the Treasury), instead to require the offending authorities to spend money on data protection awareness campaigns and other initiatives that would enhance local standards.

Actually, I’m referring to 63 delegates who, by not informing the ICO that actually they wouldn’t be attending, denied a further 63 potential delegates from sharing such a great occasion. But, the ICO does know who they are – so this happy bunch can expect to have their 2014 conference applications rejected, and for the ICO’s enforcement team to “invite” them to apply for a voluntary data protection audit later this year.

As the Chairman of a not-for profit professional conference organisation (the Data Protection Forum), I feel the ICO’s pain when it tries to anticipate delegate numbers and ends up wasting money (on catering costs, etc) when those who have said they will attend ultimately don’t. Or when it has to turn people away when there was space after all.

But that’s a minor quibble. The ICO’s team put on a great event and I can’t wait to learn what surprises are in store for those who are lucky enough to attend next year. A cabaret from the ICO’s chorus singing data protection ditties? Information Commissioner Christopher Graham, Britain's "go to" regulator, appearing on stage in a rickshaw pedalled by the European Data Protection Supervisor? Or a presentation beamed live from a UK prison featuring someone who has been jailed for committing a data protection offence?

Pencil the date in your diaries now.

(Hopefully) looking forward to seeing you at the next ICO’s Data Protection Officer Conference in Manchester on Tuesday 11 March 2014.

Source:

http://storify.com/iconews/data-protection-officer-conference-2013-dpoc2013

Question Time session - http://www.youtube.com/watch?v=C5FNMruiK6s (at 7mins 22 secs)

Google Streetview and “Incidental” Processing

2013-03-07T14:13:24+00:00

Someone I follow on twitter recently posted a link from Google Streetview of the interior of a pub, in which he could identify himself and a friend having a quiet pint. I must confess this addition of building interiors to the Streetview portfolio had passed me by. It appears that businesses can sign-up to have “Google Trusted Photographers and Trusted Agencies” take photographs of their premises, which are uploaded to the web and linked to Streetview locations.

When it was launched Streetview caused some concern in privacy circles, and this was prior to, and separate from, the concerns caused by the discovery that huge quantities of wifi payload data had been gathered and retained during the process of capture of streetview data. These more general concerns were partly due to the fact that, in the process of taking images of streets the Google cameras were also capturing images of individuals. Data protection law is engaged when data are being processed which relate to a living individual, who can identified from the data. To mitigate against the obvious potential privacy intrusions from Streetview, Google used blurring technology to obscure faces (and vehicle number plates). In its 2009 response to Privacy International’s complaint about the then new service the Information Commissioner’s Office said

blurring someone’s face is not guaranteed to take that image outside the definition of personal data. Even with a face completely removed, it will still be entirely likely that a person would recognise themselves or someone close to them. However, what the blurring does is greatly reduce the likelihood that lots of people would be able to identify individuals whose image has been captured. In light of this, our analysis of whether and to what extent Streetview caused data protection concerns placed a great deal of emphasis on the fact that at its core, this product is in effect a series of images of street scenes…the important data protection point is that an individual’s presence in a particular image is entirely incidental to the purpose for capturing the image as a whole. (emphasis added)

One might have problems with that approach (data protection law does not talk in terms of “incidental” processing of personal data) but as an exercise in pragmatism it makes sense. However, it seems to me that the “business interiors” function of Streetview takes things a step further. Firstly, these are not now just “images of street scenes”, and secondly, it is at least arguable that an individual’s presence in, for instance, an image of an interior of a pub, is not “entirely incidental” to the image’s purpose.

Google informs the business owner that “it would be your responsibility to notify your employees and customers that the photo shoot is taking place” but that “Google may use these images in other products and services in new ways that will make your business information more useful and accessible to users”. It seems likely to me therefore that, to the extent that personal data is being processed in the publishing of these images, Google and the business owner are potentially both data controllers (with consequent responsibilities and liabilities under European law).

It would be interesting to know if the Information Commissioner’s assessment of this processing would be different given that a factor he previously placed a “great deal of emphasis on” (the fact that Streetview was then ”just images of street scenes”) no longer applies.

My rapists were rewarded, says Somali woman cleared of making false claims

2013-03-07T12:47:57+00:00

Rape victims will stay silent, warns Lul Ali Osman Barake in first major interview since acquittal, as her attackers remain at large

Lul Ali Osman Barake says she has been raped twice: first by a gang of men in military fatigues, then by the judicial system in what is meant to be liberated Somalia.

There was astonishment and revulsion around the world when, having told the police and journalists about the rape, the 27-year-old was arrested and sentenced to a year in jail. The verdict was quashed on appeal earlier this week. But Abdiaziz Abdinur Ibrahim, a journalist whose "crime" was to interview Barake, remains in prison. Relatives are increasingly worried that his fragile health will not survive a Mogadishu jail that is so overcrowded he has to sleep standing up.

The case has shone an unflattering light on the Horn of Africa country and the fledgling institutions put in place with western support after two decades of civil war.

"The victim was arrested instead of the rapists, so the rapists have been rewarded," Barake told the Guardian in her first major interview since her acquittal. "I was a victim and I was given a one-year jail term. No female victim in Somalia will feel able to talk about this. Rape victims will stay silent in their home and not tell anyone."

Wearing a black jilbab and cradling her 15-month-old son, Shaafi, she agreed to share her experience through a local interpreter in Mogadishu and asked that her real name be used in the hope that it will aid her fight for justice. She has been supported by her husband and uncle; there is no independent corroboration of their allegations.

It was on 14 August, she said, that she woke up feeling unwell at her home constructed from sticks, plastic and metal sheets in one of the camps for internally displaced persons (IDP) that still scar the Somali capital. She went to a food distribution point and was approached by five men in uniform.

"They stopped me, slapped me and blindfolded me," Barake said.

"One took my hand and I had to follow them inside an empty school. I said I'm an IDP, I'm getting food to eat, what do you want with me?

"They said nothing. They were angry and they took me.

"They raped me, one after another, with four standing guard. When all five had finished, I said please allow me to leave, I'm breastfeeding a baby and need to get home. They allowed me to go. After I left the area I fell three or four times. Whenever I walked for 10 metres, I had to sit and rest."

When Barake got back to the IDP camp, a local leader took her to a police station, where she was given a letter and sent to a hospital to verify her allegations. She waited from around 6am until 2pm for a doctor to appear. Eventually Barake was subjected to a humiliating "finger test" and handed $20 in what she thinks may have been an attempt to buy her silence.

Months passed with no sign of progress in the case. A neighbour introduced Barake to Ibrahim, a freelance journalist investigating sexual violence, and on 6 January he interviewed her outside her home.

Four days later, two police cars arrived and Barake was taken into custody. Officers quizzed her about a separate interview that she had given to al-Jazeera, which published her comments under a pseudonym.

"They said, 'Who is the woman who was raped?' I said, 'I am.'"

Barake was taken to police headquarters where, she said, the most powerful officers in the country demanded to know why she had changed her name for the media. They extracted Ibrahim's number from her phone by force. Barake was released at around midnight and had to report to a station every morning for the next 17 days.

"The interrogations were very horrible and sometimes threatening," she said. "The last one was with the police chief. He had a pistol in his hand and he said, 'You are a criminal, you tell lies about the government and police. I want to ask the government to forgive you. To do that you must say the right thing and withdraw these allegations. If you don't, you will be arrested and put in jail.'

"The next time they gave me a statement withdrawing the allegations, even though I am illiterate, and told me to sign it with my thumb. I did it out of fear. The police were standing there with pistols; sometimes I thought they would kill me."

During this last incident her husband, Muhyidin Sheikh Mohamed Jimale, 58, was arguing with police officers in a separate room. "They ordered me to get out of the office and I saw my wife crying outside," the market porter said. "She said they brought her a letter and forced her to sign it. An officer said, 'This case insults the police in Somalia and if you don't throw it out, you'll be in trouble.' I replied, 'I want to get justice, I will not keep silent, I will continue to protect my wife.'"

His punishment for this defiance, Jimale claimed, was to be jailed for 26 days – including nine at Mogadishu central prison, where he was among 48 people crammed into a 4 sq metre cell.

When Barake's case came before a judge last month, she thought the nightmare would be over. "I was not afraid of the court because I thought it was better for me and justice will have its way. But that did not happen."

As police opted not to produce her "signed" statement, Barake was convicted of making false accusations and defaming a government body and sentenced to a year in prison.

This was temporarily modified to house arrest so she could continue breastfeeding her baby. Ibrahim also received a one-year sentence.

Last Sunday, after an international outcry, an appeals court judge overturned Barake's conviction due to insufficient evidence. Her worst fear, separation from her children, was lifted. But her alleged attackers remain at large, leaving her with a burning sense of injustice. "If I am not angry, who will assist me to catch them? No one can identify their faces now. No one will arrest them.

"I am angry with the attorney general and the police. I was a victim and they ordered my arrest. They said I told lies and denied that I had children. Even if I'm dying, I will not forgive them. I'm an IDP, I can't read or write and they were making use of my ignorance. They were trying to protect the reputation of the government and police.

"Journalists in Somalia will see it as a message. They will run from any victim because they know what happened to me."

Her husband shares her grievance. "It is the worst injustice I have ever seen in the world," he said. "I am a Somali citizen, I am innocent, my wife is a victim.

"When I complained to the police and law enforcement of Somalia, they arrested me and defamed me. They said, 'You are liars.' They claimed we took $400 for creating a false report. They did everything bad to us they could."

Both condemn the treatment of Ibrahim, whose supposed offence appears to have shifted over time, from fabricating a defamatory story to entering a home without permission to misleading an interviewee for an article that was never published. The appeals court halved his sentence to six months, dismaying Human Rights Watch, the Committee to Protect Journalists and the Somali prime minister, all of whom expected him to be freed.

Shocked relatives and radio station colleagues speak of a gentle, studious man whose parents died when he was a child and who grew up in an orphanage. For the past five years he has lived with his uncle but this year he was planning to marry and study in Uganda towards a doctorate.

"He likes reading and writing, to follow the news and be connected to the world," said his uncle, Mohamed Ali Abdullah, a lecturer at Mogadishu University. "He's a good listener; he likes to hear your voice. At the start of his career we tried to persuade him not to be a journalist because of the risk. But he rejected the advice."

Abdullah, 43, fears for his nephew's future behind bars. "I visited him in prison yesterday and he was so depressed. The cell is very narrow and more than 40 people are inside. He was complaining about a stomach ulcer and a skin allergy because of poor sanitation. He can't stand six months of that; it's possible he will die there."

He is mystified by Ibrahim's conviction. "Abdiaziz is a journalist and was doing his job interviewing the lady. I'm afraid in the future journalists will not dare to interview victims because of the consequences of this case.

"This will destroy the future of news. This is not what we expect from the new government of Somalia."

The National Union of Somali Journalists has announced it will write to the president in protest and launch a campaign for freedom of expression, which in theory is protected under the Somali constitution. Mohamed Ibrahim, its secretary general, said: "The government is trying to criminalise the media profession. That is the common worry of all journalists.

"If he was imprisoned for a story that wasn't published, what is going to happen the next time if you don't publish an interview? Will the person complain? They are still doing wrong after wrong. Every step they are taking is a threat to freedom of the press."

The union believes Abdiaziz Abdinur Ibrahim is the victim of a spiteful judiciary that feels threatened by imminent reforms. The defeat of Islamist militant group al-Shabaab and the election of a president and parliament last year were intended to usher in a new era in Somalia.

A new human rights taskforce is studying Ibrahim's case.

Mahamoud Abdulle, permanent secretary in the prime minister's office, said the government is committed to free speech. "The government has made its position clear: we are not happy that a journalist is in jail," he said. "But it's not our decision and we can't do a lot about it. We have an independent judiciary that is in its infancy and we cannot interfere with that."

Outside observers should appreciate the context of how far the country has come in a short time, he added. "A year ago nobody was talking about human rights violations in Somalia. People were talking about how many suicide bombers were there and the fighting on the streets of Mogadishu. There is real progress."

A senior police officer declined to comment while attempts to contact a police spokesman were unsuccessful. Abdulle said: "It's important to be careful about making allegations against the police. They have done a very good job in large areas of society. Of course there might be a few bad apples in the barrel."

David Smith

Snoopers' Charter: We need a consultation!

2013-03-07T11:55:00+00:00

(Blog) The Joint Committee on the Communications Data Bill instructed the Home Office to run a consultation on communications data. They've failed to do so. We need your help to tell the Home Office why we need a consultation. We've created an online submission page to make it as easy as possible to contact the Home Office.

Background on the Communications Data Bill

2013-03-06T19:26:00+00:00

(Report) Open Rights Group is asking organisations and individuals to ask the Home Office for a consultation on communications data and the Communications Data Bill. This briefing lays out some background to the Communications Data Bill and why a new consultation is needed.

Authors call on party leaders to save libel reform

2013-03-06T18:00:40+00:00

Open letter from writers including Stephen Fry says defamation bill is in danger of being killed off by Leveson row

Some of the Britain's most acclaimed authors and playwrights including Stephen Fry, Sir Tom Stoppard, William Boyd, Margaret Drabble, Ian McEwan and Sir Salman Rushdie have called on the main party leaders to honour their pledge and implement a defamation bill aimed at transforming 170-year-old laws they say have silenced scientists and authors as well as journalists and activists.

In an open letter, the authors tell David Cameron, Nick Clegg and Ed Miliband they are "deeply concerned" that the bill is going to be killed off after three years going through the legislative process simply because it had become entangled in a political row over the Leveson report on press regulation in the past month.

They said it was "entirely inappropriate, and even reckless, for libel reform to be sacrificed to the current political stalemate" in the letter, organised by the writers' lobby group English Pen.

Current British libel laws, the authors argue, have not changed substantially since 1843, have made London the libel capital of the world and are "not just a national disgrace" but an international concern. In 2010, the US president, Barack Obama, introduced laws in America to protect US citizens from British courts.

The signatories, who also include Julian Barnes, Claire Tomalin, Ali Smith, Dame Antonia Fraser, Sir David Hare, Susie Orbach and Michael Frayn, are concerned that improved libel laws are on the verge of collapse because of amendments inserted by Lord Puttnam into the bill in the past month during its final stage in the House of Lords.

The bill has been three years in the making and was included in the Conservative, Labour and Liberal Democrat manifestos. It did not touch on press regulation until last month, when a group of peers, frustrated by the lack of progress on the Leveson report among the political parties, won overwhelming support in the Lords to add sections to the bill covering a newspaper watchdog's activities.

Writer Gillian Slovo, daughter of the anti-apartheid leader Joe Slovo, told the Guardian: "It would be a terrible thing if the bill was killed, not because it isn't supported by all three parties, because it is, but because it became entangled in Leveson. It would be a great loss."

She said that "one of the great strengths of Britain was freedom of speech but its achilles heel is the libel laws which are mostly used to silence the less well-off".

Libel reform campaigners including Lord Lester, believe it can be salvaged but only if it gets on to Commons business by the middle of March. Political sources have confirmed it is not currently slated for discussion and will not be while Leveson talks continue, raising fears the bill is already dead.

Boyd, vice-president of English Pen, said Puttnam's amendments had "nothing to do with the principle of libel reforms, whose validity had already been established" through consultation and debate in three parliamentary committees.

The amendments include proposals for a new arbitration unit to resolve disputes with newspapers and an incentive system that would mean publishers who did not sign up to the new press regulator could face punitive damages and costs in high court libel actions.

The authors say that a number of scientists have faced "ruinous libel suits simply for blowing the whistle on dangerous medical practices" in the past three years . If the defamation bill became law, the risk of libel action would be lessened because of a new public interest defence. Big corporations such as drugs companies would also have to prove serious financial harm before they could take action.

"If the law is not reformed, bullies will continue to be able to prevent the publication of stories that are often not only in the public interest, but a matter of public health and safety," the letter says.

Other signatories are Lisa Appignanesi, Jake Arnott, Amanda Craig, Victoria Glendinning, Mark Haddon, Ronald Harwood, Michael Holroyd, Howard Jacobson, Hisham Matar, Philippe Sands, Will Self, Kamila Shamsie and Raleigh Trevelyan.

Downing Street said it supported the bill but said it was stymied as long as the Puttnam amendments remained. "The government is strongly behind the objectives of the original defamation bill. The government does not support the Puttnam amendments and is clear the Puttnam amendments will not make it onto statute," said a spokesman for No 10.

A Labour spokesperson said: "Labour's commitment to modernising our outdated defamation laws can be seen in the sheer effort we've put into knocking into shape an original set of proposals that really weren't up to the mark. It would be an outrage if the government prevented parliament from having its say given how much work has gone into proposals that give our defamation laws a much-need updating."

Full text of the open letter

We are writing to urge you to fulfil your commitment to libel reform and ensure that the defamation bill is passed.

All three parties made a pledge in their manifestos and this was restated in the government's coalition agreement.

We are deeply concerned that the bill is currently under threat, following the insertion of a new clause, late in the legislative process, which introduced aspects of Lord Justice Leveson's recommendations. The defamation bill is not a suitable vehicle for the wider proposals of press regulation – as Lord Justice Leveson himself noted, libel did not form part of his terms of reference. It is therefore entirely inappropriate, and even reckless, for libel reform to be sacrificed to the current political stalemate. The bill offers an opportunity for reform that we cannot afford to miss.

This is a citizens' bill that has the support of scientists, consumer groups, lawyers, doctors, journalists, writers and bloggers – more than 60,000 individuals have signed the Libel Reform Campaign's petition for reform. This rare consensus across society springs from the knowledge that the libel laws of England and Wales may chill the speech of anyone who has the courage to speak out in the public interest.

Since the campaign for libel reform began three years ago, you will be aware of the many cases of scientists who have faced ruinous libel suits simply for blowing the whistle on dangerous medical practices, of writers whose investigations in the public interest cannot be published in the UK for fear of an action and consumer forums who face threatening letters from claimant lawyers for exposing poor practice. If the law is not reformed, bullies will continue to be able to prevent the publication of stories that are often not only in the public interest, but a matter of public health and safety.

Our libel laws are not just a national disgrace, but an international concern. The UN human rights committee singled the UK out for the impact of libel on freedom of expression; the USA has introduced legislation to protect its citizens from our libel courts.

The defamation bill promises to bring libel law into the 21st century by providing effective defences for online publication, it will stop corporations from bullying individuals into silence, put an end to trivial and vexatious claims, and introduce a long overdue public interest defence.

This is an historic moment for free speech in this country. As writers and members of English Pen, we ask you to honour your commitment and ensure that the bill completes its passage by the end of this session of parliament.

Lisa Appignanesi, Jake Arnott, Julian Barnes, William Boyd, Amanda Craig, Margaret Drabble, Antonia Fraser, Michael Frayn, Stephen Fry, Victoria Glendinning, Mark Haddon, David Hare, Ronald Harwood, Michael Holroyd, Howard Jacobson, Hisham Matar, Ian McEwan, Susie Orbach, Salman Rushdie, Philippe Sands, Will Self, Kamila Shamsie, Gillian Slovo, Ali Smith, Tom Stoppard, Claire Tomalin, Raleigh Trevelyan

Lisa O'Carroll

Trainer under Surveillance! – RIPA required or even obtainable?

2013-03-06T16:14:17+00:00

About 5pm I arrive at a small hotel ready to deliver training the next day. There is no car park at the hotel so I park on the large pay and display opposite. I check the charges, and buy the … Continue reading →

Turkish prime minister to press: censor what you write

2013-03-06T13:39:46+00:00

Turkish Prime Minister Recep Tayyip Erdoğan has accused the country's media of trying to undermine a nascent Kurdish peace process, according to a Reuters report.

The agency says he has called on journalists to censor themselves if they love their nation, a suggestion that has gone down badly with the press.

Erdoğan condemned an article in the daily Milliyet newspaper, which published a transcript of a meeting last month between Abdullah Ocalan and Kurdish politicians.

Ocalan, head of the outlawed Kurdistan Workers Party (PKK) who has been in jail in since 1999, has been in peace talks with Turkey since October. The transcript revealed his apparent frustration with the peace process.

Erdoğan said: "If you are going to conduct this kind of journalism, then we don't need your journalism. We want a service to this nation. Whoever is working to sabotage this resolution process is against me, my friends and the government."

Journalists hit back. Ahmet Abakay, head of the Progressive Journalists Association, wrote: "Newspapers and television stations are not corporations tied to the government. Journalists are also not civil servants or officials of the prime ministry."

And Yusuf Kanli, a columnist for the daily Hurriyet, wrote: "It is not the business of a prime minister to yell in a bossy attitude and try to dictate what to report and not report."

Source: Reuters

Roy Greenslade

Council spending on the Olympic torch relay: where did the money go?

2013-03-06T11:13:00+00:00

Collaborative investigation site Help Me Investigate has compiled data which shows how council spending on the Olympic torch relay breaks down. Paul Bradshaw explains how you can explore the data
• More Olympics data
• More data journalism and data visualisations from the Guardian

As councils publish slashed budgets for the year ahead, collaborative investigation site Help Me Investigate has compiled data on how budgets were raided to pay for the Olympic torch relay.

Based on FOI requests by Juliet Ferguson and Carol Miers to 100 local councils and police authorities, the responses contain some interesting budget decisions. These include:

• One authority used their torch relay budget to appoint a new member of staff for 18 months
• Two authorities – Aberdeenshire and Lewisham – spent £7,398 of their torch relay budgets on new CCTV cameras
• The biggest spenders were Dover District Council and Bournemouth: both spent over £220,000. But Somerset paid nothing after organisers LOCOG agreed to pay all their costs, previously estimated in the hundreds of thousands
• Bunting made up a large chunk of spending in some areas, coming to £50,000 in one London borough alone. In South Ayrshire the bill for "branded materials" ran to £6,000 for every hour the torch spent in the region. In Bury banners and bunting cost over £8,000 per hour; and bunting for Corby's single hour was valued at £15,000
• All of Dundee's £30,000 torch relay spending came from the Environment budget. In Hartlepool money was "top-sliced" from the annual maritime festival budget. In Chesterfield a budget for arts festivals and food markets was used. In Bury £11,000 was taken from the reserves and a further £1,300 from the Leisure fund to pay for £16,000 of decorations
• Falkirk paid £471 for an 'emergency counselling service'
• Lancashire do not appear to know how much the torch relay cost: they were the only authority to refuse our FOI request saying it would take over 18 staff hours to collate
• And on a more quirky side, Bath and North East Somerset costed a 'World Record Attempt' on the budget at £1,582

You can search the database below. What can you find?

• Paul Bradshaw is a visiting professor in online journalism at City University London and course leader of the MA in Online Journalism at Birmingham City University. Read more of Paul Bradshaw's work on the Olympic torch relay.
Where can I find the original? Help Me Investigate

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Paul Bradshaw

BBC given free rein to be controversial: From the archive, 6 March 1928

2013-03-06T07:30:00+00:00

If the true policy of an open forum is adopted the BBC may become one of the greatest educational forces in the country

The decision of the Government to permit the British Broadcasting Corporation to use its own discretion about broadcasting "matters of political, religious, or industrial controversy" at last puts the Corporation on a proper basis. The B.B.C. has now a great responsibility and a great opportunity.

One restriction still remains: the B.B.C. is not a newspaper and may not express its own editorial comments on public events. This is as it should be. The danger of propaganda always lies in one-sided information, in suggestion, and in anonymity.

As long as facts are freely disclosed there is nothing to be apprehended in open discussion of any topic. If the public always knows what individuals are speaking and proper opportunity is given to various opinions, the more controversial the subject matter of discussion the better.

It is the business of the B.B.C. to be impartial as between rival views and not to heed the objections of those who think all opinions they do not like "dangerous." No subject of public interest and importance should be banned because its discussion annoys some people, or even a great many people. If the orthodox may state their case, so may the unorthodox. If there are to be political debates, Socialists should be given a hearing side by side with Liberals and Communists allowed to state their views as well as Conservatives.

If the true policy of an open forum is adopted the B.B.C. may become one of the greatest educational forces in the country. Education begins when interest is aroused, and the B.B.C. has a unique opportunity of rousing interest and even thought in minds that are closed to other channels. Many sedulously guarded myths may be dispelled by open discussion, and intelligent opinions take the place of hoary superstitions.

There is no way of arriving at truth or of cultivating sound judgment except through the clash of opinion, and the B.B.C. may play a great part in educating a public amongst whom truth shall be better appreciated and sound judgment be more general than they could be without its aid.

Views on the change

Mr Bernard Shaw said to a press representative last night:

"The Postmaster General will have to cease asking Englishmen to give a pledge which they won't give to say nothing controversial. I refused him, and everyone who had any sort of decency refused him. Nevertheless, I don't know whether the people who actually broadcast gave any pledge, but if they did it never presented them saying anything controversial."

Dr F.W. Norwood, of the City Temple:

"I have held all along that there should not be a ban of that kind. It seemed to eliminate many of the most valuable and interesting things. I am thankful to hear the news, and I think it will make for good."

Mr Basil Dean:

"I think the step is a thoroughly sound one. All forms of censorship are undesirable, fundamentally, because they give rise to inevitable reaction."

Could the Conservative Party’s electoral database breach the Data Protection Act?

2013-03-05T17:25:05+00:00

Ever since the Scottish National Party breached the PECR Regulations back in 2005, all political parties have had problems using personal data to identify potential supporters at election time. It is a tricky issue; those standing for election need to process personal data in order to contact supporters and voters.

Last Sunday, it emerged that the Conservative Party appears to have used USA-style polling techniques to create a database of voters which, in part, is legitimised by a simple privacy axiom: personal information that is published is not private; hence there cannot be any obligation to protect privacy.

This privacy axiom might work in the USA but it does not work in the UK as most Data Protection Principles are not negated, even when data subjects publish personal data about themselves. For instance, if a data controller gathers together all sorts of personal data from the Internet, it cannot claim that because these details are in the public domain, then there is no right of access to these personal data or that security obligations can be ignored.

With that in mind, just consider this passage from The Sunday Times (3rd March 2012, page 19). It explores a database that supports future Conservative Election Campaigns in the following terms:

â??The key to victory may lie in technology. For several months, four brainboxes have quietly creating the most sophisticated ever database for use in future by-election and general election campaignsâ??.

This database is stored â??in the Cloudâ?? and will â??amass data from public records, pollsters, fundraisers and political activists and volunteersâ?¦ It will also trawl social networking sites for information on votersâ?? habits and preferencesâ??.

â??Facebook, Twitter â?? if itâ??s in the public domain itâ??s not off limitsâ??, says Jag Singh, a digital whizz-kid who has worked on two US presidential electionsâ?¦â?¦Singh hopes the database will contain details of as many as 20 million voters by 2015â??.

Before progressing, I am making the assumption that this system is up and running in some form and that some (possibly most) personal data are being processed without the consent of the data subject.

However, I canâ??t resist making a comment that these â??brainboxesâ?? and â??whizz-kidsâ?? appear to know little of the data protection consequences of their processing actions. Their plans also reveal why users of web-browsers need to consider very carefully what electronic trails they are leaving, and why in the case of social media software, there are risks of making personal details available to others.

The first comment to say is that in many cases, sensitive personal data about voters are being processed; this is likely to bring with it enhanced security obligations as the particular context includes expressions of opinion in support of, or opposition to, a particular political or social policy (e.g. Immigration, Gay Marriage etc).

So there is an immediate accuracy problem in cases where a â??friendâ?? of the data subject has published commentary on the data subjectâ??s political views, or if that friend inadvertently places a data subjectâ??s preliminary views in the public domain (e.g. by forwarding a private posting to his friends). For instance, how many times have you said something on a topical issue, a colleague then mentions something that you havenâ??t considered, and you then modify your view.

Secondly, the personal data that are being processed extend well beyond the name and address details that are provided when political parties obtain copies of the Electoral Roll for each constituency. What in essence is happening is that the Electoral Roll provides the core name and address data for a central register, which is then linked to other personal data obtained which is likely to be obtained without the consent of the data subject concerned.

Third, there is the issue of fairness. Is it fair to process personal data from social media postings when in many circumstances they have not been posted with the intent that they can be copied for general use or for a political purpose? Do the fairness requirements mean that data subjects need to be informed that a political party is amassing their personal details on them in order, for example, to profile their political preferences?

Of course one could argue that there is no need for a fair processing notice at all, as a data subject should know that if his personal data are published by him then these published data can be used for anything. (This is despite the fact that it is well known that many data subjects do not appreciate this point and that in many cases, the default privacy setting provided by social networking sites is â??no privacyâ??).

Consequently, I have constructed an argument that requires the data controller to contact with the data subject with the fair processing details that does not depend on the fair processing requirements of the First Principle.

In the absence of consent, the processing by the data controller of any additional personal data (i.e. additional to name and address from the Electoral Roll) is very likely to be subject to the balance of interests grounds (i.e. Schedule 2, paragraph 6). This means that the processing by a data controller, if necessary, is legitimate if there is no overriding interest of the data subject to protect.

Given that sensitive personal data are likely to be processed, the question then arises as to how can a data controller take account of any overriding legitimate interests of eachÂ data subject without making contact with that data subject?

In addition, the right of objection (S.10 of the DPA) applies. So how can a data subject exercise their right to object to the processing of personal data by a data controller if they do not know that such personal data are being processed and for what purpose? How, for instance, can a data subject exercise their rights of access without knowing the identity of the data controller or where to send any request for access?

In other words, contact by a data controller with data subjects to alert them to the processing purpose and the identity of the data controller is a consequence of the Sixth Principle, and the legitimisation arm of the First Principle (and not only the fairness limb of the First Principle).

Handily, because the Conservative Party has the Electoral Roll, contact with data subjects should not prove too difficult; a brief billet-doux should suffice (e.g. â??Dear Data Subject. XYZ Party is processing your personal data for a political purpose. Lots of loveâ?¦â??).

Other data protection issues also show that the claim of Jag Singh (â??if itâ??s in the public domain, itâ??s not off limitsâ??) is clearly misguided. For instance, how long are details kept on the central database and how on earth are these additional details (i.e. other than name and address) are kept up to date? What details are deemed relevant to the political purpose and when are political views of electors deleted (if ever)? Finally there are the Cloud issues and transfers outside the EEA.

Lurking in the background are other important questions such as: â??Would a database that contained the political views of voting adults in the UK present a target for unauthorised access?â?? or questions that arise from function creep (e.g. would employers use such a database in their employment decisions).

In summary, I think that Conservative Party (and to be fair, probably the other main political parties as well) are considering steps that urgentlyâ?¦ how shall I put itâ?¦ need a Privacy Impact Assessment (PIA) at the very least.

Hopefully when doing this PIA they can employ whizz kids and brainboxes who appreciate that â??if itâ??s in the public domain, the Data Protection Act still appliesâ??!

Quick advert

We still have places on our half day workshop on the Data Protection Regulation on Monday March 18th in London (details on http://www.amberhawk.com/bookevents.asp)

James Franco asks Australian censors to overturn ban on I Want Your Love

2013-03-05T11:03:25+00:00

In a YouTube appeal, the American actor and film-maker calls censors' reaction to the movie's gay sex scenes 'embarrassing'

Reading this on mobile? Click here to view video

James Franco has called on Australian censors to overturn their ban on a US film that features a number of explicit gay sex scenes.

In a YouTube appeal, Franco labelled the decision to ban I Want Your Love "embarrassing". The film is directed by Travis Mathews, the US actor's collaborator on Sundance entry Interior. Leather. Bar. Australia's classification board has refused producers permission to screen it at the forthcoming Melbourne and Brisbane queer film festivals, deeming it overly sexually explicit.

"I don't know why in this day and age something like this, a film that's using sex not for titillation but to talk about being human, is being banned," Franco said in his YouTube appeal, which was posted on Monday. "It's just embarrassing. I hope you'll reconsider."

The star of Rise of the Planet of the Apes and the forthcoming Oz the Great and Powerful added that Mathews had depicted sex in a "sophisticated way". He said: "It's how we create children, it's how we connect. To keep it away from films that want to explore it as human behaviour is very shortsighted and I think very hypocritical. I don't think we would be having this conversation if he had made a very violent film."

This year's Melbourne queer film festival runs from 14 to 24 March, while the Brisbane iteration is staged between 5 and 14 April.

Ben Child

UAE trial of 94 accused of coup plot begins amid tight security

2013-03-04T10:57:39+00:00

Defendants – who include academics and lawyers – suspected of building secret network to overthrow the government

Ninety-four people have gone on trial in the United Arab Emirates on charges of trying to overthrow the government, the latest in a growing crackdown in the Gulf state against perceived political or security threats inspired by the Arab spring uprisings.

About 200 relatives were bussed to the court in Abu Dhabi for the hearing on Monday amid tight security. The road leading to the court was closed and authorities barred international media and rights groups from attending.

The defendants – unnamed doctors, academics, lawyers and other professionals – have been accused of building a secret network to plot the coup and raising money through property and other deals.

The government said the 94 were suspected of links to the Muslim Brotherhood and other unnamed parties they allegedly contacted for expertise and financial support . The detained include men and women who were arrested over the past year.

They are believed to be part of a loosely knit Islamist network known as al-Islah or Reform, which advocates a greater public voice in UAE's tightly controlled affairs.

Rights groups have criticised the crackdown and it has also raised tensions with Egypt, which is governed by the Brotherhood. In the Gulf federation, the arrests are seen as part of what appears to be growing intolerance for any criticism of the government or its leaders.

Last year, the UAE set stricter internet-monitoring and enforcement codes that include giving authorities wider leeway to crack down on web activists for offences such as mocking the country's rulers or calling for demonstrations. Last week, a scholar from the London School of Economics was barred from entering the country, prompting the school to pull out of a planned conference.

Several relatives waiting to be bussed to the hearing said the charges were baseless and that they hoped justice would prevail either through the courts or by way of the country's rulers.

They said their family members had no links to the Brotherhood and only wanted to see greater democracy in the country, including giving more powers to the Federal National Council, the largely toothless public advisory body.

"If anybody reads the accusations that are put in their file, they will surely observe these are only based on suspicions," said Khalid al-Roken, whose brother and nephew were among those on trial. "They were meeting in houses so that means they have secret organisations arranging for a coup? All people have gatherings in their houses. Where does that constitute a threat to the government?"

Others questioned why it had taken the authorities several months to charge the suspects. They said their relatives were held at undisclosed locations, in solitary confinement and in tiny rooms with nothing more than mattress on the floor.

"It's unfair. Until now, I have had no justice," said a man who identified himself only as Omar, fearing for his own security as his parents, an aunt and uncle were among the detainees. They were arrested in the neighbouring emirate of Ras al-Khaima seven-and-half months ago.

"It's my father, my mother. I have little brothers. Who will take care of them?" he said. "I don't know when they made these accusations. I don't understand the law here."

There was no information from the authorities or in local media on the hearing.

About two dozen international lawyers and rights groups, including Amnesty International, had asked to attend the session but did not receive permission. Several reporters and activists were turned away by police before they reached the court and rebuffed when they tried to get answers from the ministry of justice.

"They are hindering any kind of observation by the public," said Ketil Lund, a former Norwegian supreme court justice who was part of an International Commission of Jurists delegation.

"That raises concerns about the fairness of the trial," he said. "I think [the authorities] are afraid to have it open. They are afraid the trial and the treatment of the detainees are not according to international standards."

Melanie Gingell, of the UK-based Gulf Centre For Human Rights, said the crackdown and trial were another indication of the Emirates abandoning its commitment to democracy and the Arab charter, which she said the UAE had signed, as well as to calls for free speech and freedom of association.

"They have been taking small steps progressing towards democracy but in the last two years it seems they have been retracting greatly on that progress when you see an instance like this where international lawyers from the United Kingdom, Norway are turned away," she said.

Britain’s data protection elite to be split in two this week

2013-03-03T17:48:43+00:00

Britain’s data protection elite will split into two camps immediately after the ICO’s annual conference in Manchester on Tuesday. Most data protection officers will return to their workplaces and carry on working as usual. A select elite, however, distinguished by the size of their conference budgets, will journey to Washington DC for even more days of data protection conferencing.

Whether those lucky few who face a week’s worth of conference sessions will be any better informed as to what the proposed General Data Protection Regulation (or Directive – take your pick) will contain, I really don’t know. Actually I think I do know. And the answer is that they will almost certainly be just as mystified about the final outcome as the rest of us.

Why so?

Events, dear reader, events.

Until last week’s elections, I had underestimated the strength of apparent disillusionment at the great European Project by the British electorate in Eastleigh, and throughout Italy generally. And, in a few month’s time, German citizens will be given the opportunity to express an opinion on further European integration, when national elections are held.

Governments in member states and politicians in the European Parliament will, I’m sure, redouble their efforts to make the EU as great a place to live and to do business in as possible. And the pressure will be on to respect people’s fundamental human rights - but not at the cost of soaring national social security bills, should sizeable populations from one member state decide to move and apply for more generous social benefits in another member state. “Benefit tourism”, as some commentators describe it. Or when a court designed to uphold fundamental rights acts in ways that are totally unacceptable to democratically elected Governments.

Someone needs to do a bit more selling if businesses (and public authorities) are to welcome the additional costs that appear to be associated with the higher data protection standards that are implied by the latest drafts that are emerging from the relevant European parliamentary committees.

To be frank, I don’t see many people selling the new proposals. Perhaps all the good work is being done behind closed doors, to give the relevant stakeholders ample opportunities to reach private deals.

Given the atmosphere in which private deals will be made, I really don’t think anyone has a clue what will happen.

Does anyone know what the current Italian data protection strategy is? (Or what the next Italian Government’s strategy will be, if another election is called in a few month’s time?) Or what the German Government’s strategy will be after the German elections?

If we don’t, then how can we judge what deals might be on the table when the elites finally agree on how to lead us all to an even greater future?

Image credit:

http://albatros-africa.com/tours/namibia-in-a-nutshell-special

Withdrawal from the ECHR: a Venn diagram…

2013-03-03T14:39:23+00:00

Human Rights and Wrongs

2013-03-03T10:27:46+00:00

“The first major law to curtail the rights of Jewish German citizens was the “Law for the Restoration of the Professional Civil Service” of April 7, 1933, according to which Jewish and “politically unreliable” civil servants and employees were to be excluded from state service” (source: wikipedia)

I was talking to a friend with Jewish heritage yesterday who is researching his family history. His success at tracing his German and Polish ancestors using the superb JewishGen site was – as has happened to some many thousands of Jewish genealogists – desperately and sickeningly curtailed by the events of the 1930s and 1940s. People die, or disappear, and lineages that go back centuries are broken by something that happened within our fathers’ lifetimes.

“[in 1935 the] “Nuremberg Laws” excluded German Jews from Reich citizenship and prohibited them from marrying or having sexual relations with persons of “German or German-related blood.” Ancillary ordinances to these laws deprived them of most political rights. Jews were disenfranchised and could not hold public office” (source: wikipedia)

We speculated on how his family members in 1930s Berlin might have responded to the erosion of their rights during this period. Why didn’t they leave when they could? They were affluent and well-connected. They may even have had the opportunity to emigrate. Philip Roth’s novel The Plot Against America imagines an alternative American history under the leadership of the Fascist-sympathising Charles Lindbergh. It is chilling precisely because it shows how gradual the process of erosion might be, and how difficult it must have been for my friend’s ancestors to accept that their country, and their neighbours and friends, were capable of destroying them, and attempting to annihilate their racial and religious identity.

“Persecution of the Jews by the Nazi German occupation government, particularly in the urban areas, began immediately after the invasion. In the first year and a half, the Germans confined themselves to stripping the Jews of their valuables and property for profit, herding them into ghettoes and putting them into forced labor in war-related industries”(source: wikipedia)

We spoke of how two of his relatives appear to have died on successive days in 1939, and how this might have happened. Though this was after Kristallnacht history shows that that was but one spike in a relentless process of denial of freedom of thought, conscience, religion and expression, of inhuman and degrading treatment or punishment, of forced and compulsory labour in ghettoes, of forcing people to live in unbearably cramped and oppressive conditions, with no respect for family or privacy. Though some might have tried to resist, all rights to freedom of assembly would have gone. Others of his relatives simply disappear from the records, and we had little doubt this would have been after an arbitrary deprivation of liberty with no right to any court hearing.

“Extermination camps (or death camps) were camps built by Nazi Germany during World War II (1939–45) to systematically kill millions of people by gassing and extreme work under starvation conditions. While there were victims from many groups, Jews were the main targets” (source: wikipedia)

And my friend found a record indicating the death of one relative in 1942. The place of death was not known, but by that time the Nazi regime was pursuing a state program of genocide, of mass deprivation of life.

“The rights of every man are diminished when the rights of one man are threatened” (source: John F Kennedy)

The development of the European Convention of Human Rights, with its proclamation of the universality of the rights it described, was born out of an acknowledgment and experience that a state can change its own laws, and depart from acknowledging and protecting human rights. If governments can (and they can) derogate themselves from the obligations of their own laws, then a system of international jurisdiction over the protection of human rights was essential. David Maxwell-Fyfe, a future United Kingdom Attorney General and Home Secretary was a key figure in the drafting of the Convention.

“A country is considered the more civilised the more the wisdom and efficiency of its laws hinder a weak man from becoming too weak and a powerful one too powerful” (source: Primo Levi, If this is a Man)

This morning I read reports that the Home Secretary will announce that a majority Conservative government would withdraw from the European Convention.

Animal testing: it's time the British public saw the reality for themselves | Victoria Martindale

2013-03-02T11:30:01+00:00

British law cloaks animal experimentation in secrecy despite supposed freedom of information. This inconsistency should stop

As the United States opens its doors to allow public access to all federally funded scientific research, including increasingly controversial experiments on animals, similar transparency should be upheld on this side of the Atlantic.

When the Freedom of Information Act came into force in 2000, its purpose was to provide access to information under the public's "right to know" on the premise that transparency is fundamental to a healthy democracy. It lulled the public into a sense of openness, scrutiny and accountability. However, few people are aware that there are certain areas of public activity that are exempt from the act.

Vast amounts of taxpayer money and resources are being spent on animal experiments that are conducted in secret, with little in the way of recourse for review or accountability by the public – a third of whom now oppose the practice in the UK.

Section 24 is a secrecy clause embedded within the Animals (Scientific Procedures) Act 1986. Such information is exempt from the Freedom of Information Act. The clause imposes a blanket ban on the disclosure of any information. It makes it a criminal offence to reveal any detail, even to Parliament, with the risk of incurring two years' imprisonment and an unlimited fine. The original intention of Section 24 was purportedly to protect confidentiality over employee identity and to maintain commercial competitiveness. However, these areas are protected by the Freedom of Information Act itself.

Perhaps no other area would benefit from access and openness as much as animal experimentation. The current law permits the deliberate infliction of suffering on animals in laboratories that would normally be illegal in any other circumstances. It's perfectly legal to inflict brain damage on a monkey, genetically engineer a mouse to induce cancer, give electric shocks to a rat and inject or force-feed chemicals to dogs in increasingly high doses until they become sick, suffer from seizures, collapse and finally die.

Despite the coalition pledge in 2010 to "work to reduce" numbers of animals used in scientific procedures, the numbers in the UK have risen to more than 3.7m. Kittens have had their eyelids sewn shut at Cardiff University, and mice are subjected to tests for Botox in another UK laboratory.

Prohibition of access means there is no way of knowing if what's being funded is at all relevant to humans. There is no way to help improve standards to ensure tests are not unnecessarily duplicated and that alternatives are used when available. It's all so secret that we can't be confident that even the Home Office knows whether experiments on animals are being conducted in a lawful manner, or whether the most effective methods are being employed. Scientific advancement depends upon rigorous scrutiny and evaluation of all the evidence from all sides, including the public whose taxes fund much of the work. This can only be possible if we are granted access to information.

The importance of public accountability and greater openness on animal experimentation is acknowledged by many parties. The House of Lords select committee on animals in scientific procedures stated that "[w]e consider the current levels of secrecy surrounding animal experiments to be excessive" and that "[t]here should be a presumption in favour of complete openness".

Peta and many organisations want to see greater transparency. They call for the abolishment of Section 24. The public has a right to know how its money is being spent. Research should undergo proper scrutiny to propel the best science forward. The public believes this, too, as evidenced by a YouGov opinion poll that found that 80% of people agree or strongly agree that all information about animal experiments should be publicly available.

The coalition government announced public sector "transparency" as one of its key pledges in 2010. Repealing Section 24 presents it with an opportunity to show the nation that, like America, it, too, recognises the value of enhancing access to scientific information. Here is one pledge it can fulfil.

Victoria Martindale

The great fines debate continues

2013-03-02T10:47:53+00:00

Members of LinkedIn’s European Data Protection Forum will be aware of the current debate on the effectiveness of mandatory data protection fines.

You know the issues, so I won’t bother rehearsing them here.

But I have noted that one (German) participant has recently fallen into an elephant trap.

His intervention included the following:

“The right consequence is to strengthen the power of the authorities and give them the option to put higher fines. I mean if people do not care about speed limits in traffic rules one measure might be raising the fines for speeding - that's how easy it is.

And Germany is a good example that strict data protection rules are not bad for the economy. As I stated in one discussion before Germany has one of the strongest economies in Europe at the moment and the strictest data protection law. Maybe data protection even pushes the economy in the long term?”

That intervention caused me to choke on my morning coffee. It wasn’t long before I had sent the following retort:

"Please don't try to argue that Germany has one of the strongest economies in Europe "because" it has the strictest data protection law. If the inference is that economic success is delivered through strong data protection laws, and all "failing" countries have to do to improve their economies is to strengthen their data protection laws, then I find myself violently disagreeing with you.

Take another example - with the singular exception of Kraftwerk, German contemporary musical culture is abysmal. German bands are awful. But, Germany has a strong economy, So are you also inferring that an abysmal contemporary musical culture is also a precondition of a strong economy?”

Image credit:
http://www.philadelphiaplumbingheatingac.com/wp-content/uploads/toilet-bucket-money.jpg

Aaron Swartz's partner accuses US of delaying investigation into prosecution

2013-03-01T14:05:00+00:00

Taren Stinebrickner-Kauffman says she's been told an out-of-date manifesto was a key element in the case against him

The partner of late internet freedom activist Aaron Swartz has accused the US Department of Justice of "dragging its heels" over an investigation into his prosecution after it emerged that his political beliefs played a role in its case against him.

Taren Stinebrickner-Kauffman said she was "angry and really upset" when she learned from congressional staffers from the government oversight committee that a document written by Swartz five years ago was a key element in his prosecution.

"I was surprised that the Department of Justice would be so bold, that their motivation was so political," Stinebrickner-Kauffman said. "That it wasn't just one prosecutor run amok, that it was about Aaron's political views."

Speaking to the Guardian from Sydney, Australia, where she is on compassionate leave from her job as executive director of corporate watchdog, SumOfUs, Stinebrickner-Kauffman said she learned of the document's role in the prosecution after a friend posted the story, first reported by the Huffington Post, on Facebook.

The news made her more angry than she had been since Swartz died, she said. "This is not the Department of Justice, it's the Department of Vengeance. If you look at the Department of Justice they are not interested in admitting their mistakes, they are interested in covering their asses."

Since Swartz took his own life, on 11 January, months ahead of a trial in which he faced 13 felony charges and a prison sentence, Stinebrickner-Kauffman and Swartz's family have accused prosecutors of overreach for an alleged crime with no victims and of being complicit in his death.

Swartz was accused of using the MIT computer system to access too many academic articles from a digital library called JSTOR, with the intention of making them freely available. JSTOR chose not to pursue charges against him, after the activist returned all content to them and ensured it would not be used or distributed. But prosecutors indicted him on 13 felony charges. If found guilty, he faced up to 35 years in jail, and although lawyers said plea bargain negotiations were under way before his death, his request for a solution which did not involve a prison term was denied.

Last month, representatives Darrell Issa and Elijah Cummings, respectively the leading Republican and Democrat on the House oversight committee, announced they would investigate prosecutors handling of the Swartz case.

A congressional aide told the Guardian that, in a recent meeting for staffers on the House oversight committee, representatives from the Justice Department said the Swartz document – which Swartz called the Guerilla Open Access Manifesto – was a factor in establishing "malicious intent" to download documents on a large scale. The aide also confirmed that some of the staffers got the impression at the meeting that prosecutors believed they needed to convict Swartz for a felony in order to justify bringing the charges in the first place.

The aide said: "We felt the briefing for the committee was quite thorough". However, it is understood the committee has asked the Justice Department to speak to the US attorney in Boston, Carmen Ortiz. Ortiz has said she believed the prosecution was "appropriate" but her standing has already suffered from a backlash to what is seen by lawyers, internet activists and supporters of Swartz as a disproportionate and overzealous prosecution.

A White House petition demanding the removal of Ortiz garnered well over 25,000 signatures, reaching the level which guarantees a response from the Obama administration.

The Manifesto, which Swartz wrote five years ago, argued that the world's scientific literature was being "locked up" by a handful of corporations motivated by "greed". There was a "moral imperative" to sharing information on the internet, he said, and urged "civil disobedience" in order to achieve it.

"It's time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture," he wrote.

"We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access."

Stinebrickner-Kauffman, who began dating Swartz in 2011, said that the five-year-old Manifesto could no longer be relied upon as an accurate portrayal of his political beliefs years later.

"When you are a voracious active reader in your mid-twenties, your political views change a lot" she said. "My views have. Copyright issues and internet freedom issues were central to his political life many years ago, but when I knew him they weren't. It wasn't that he wasn't interested in them but he was no longer a single issue activist. He was into lots of things, from healthcare, to climate change to money in politics."

She accused the DOJ of ignorance over new technology and of failing to draw a distinction between a "researcher like Aaron and "and someone who is trying to steal credit cards and hack into a database".

"They have decided that the best they can do it have a law that charges anyone with a federal felony, [rather] than have a law that defines crimes in a reasonable way."

Swartz was charged under the Computer Fraud and Abuse Act, a law that has attracted widespread criticism for being too broad. Zoe Lofgren, a Democrat from Silicon Valley, has drafted an amendment to the Act, called "Aaron's law", to prevent similar prosecutions.

"To them, somebody like Aaron was viewed in the same way as they viewed a suicide bomber." said Stinebrickner-Kauffman. "They want to be able to do anything. The Department of Justice has a long history of trying to suppress civil liberties and it has gotten worse since the war on terror started."

In a blog post written the day she discovered the revelation, she said: "the terrifying fact I'm trying to highlight in this particular blog post is this: according to the DOJ's testimony, if you express political views that the government doesn't like, at any point in your life, that political speech act can and will be used to justify making 'an example' out of you once the government thinks it can pin you with a crime. Talk about a chilling effect on freedom of speech."

In a footnote on the post, she wrote that the DOJ had complained her characterisation of the prosecution as "political" was inaccurate, adding: "No argument as to why or how, so colour me unconvinced.

Stinebrickner-Kauffman said that she did not know what Swartz planned to do with the articles and neither did anyone else. The couple did not talk about issues surrounding the charges he faced, partly because he was afraid she would be subpoenaed and partly because "he thought I was a safe haven".

"You want to be able to have part of your life where you don't have to talk about the most terrifying part of your life."

She said that part of the reason it has made her so angry is that she worked to get President Barack Obama elected in 2008. She wrote: "I helped these people get in power. And then they drove the man I loved to suicide because they didn't like something he said once."

Stinebrickner-Kauffman said that she is anxious for the investigation to be completed, so that she will learn the truth and urged the DOJ to disclose all they knew.

"I want them to do it in a way that's designed to find justice, to find the truth. Everything we've seen so far is for them to cover their asses.

"It's definitely changed my attitude towards the Department of Justice, but we don't know enough yet. The Department of Justice has been dragging its heels on the investigation. I don't know who to blame yet and I really, really want to know."

Karen McVeigh

Another important privacy vote in the European Parliament

2013-03-01T13:54:00+00:00

(Blog) We need your help to remind MEPs that they should support stronger data protection rules.

Data Protection Regulation: Key amendments in the JURI Committee

2013-03-01T13:51:21+00:00

(Report) The Legal Affairs (JURI) Committee in the European Parliament will vote on amendments to the propose…

Disclosure of Staff Names under FOI

2013-03-01T11:07:17+00:00

When considering request for information under the Freedom of Information Act 2000(FOI) public authorities often face a dilemma about disclosing names of staff. Names are generally considered to be personal data, being information relating to living identifiable individuals (as defined … Continue reading →

Insert knob gag here

2013-03-01T10:10:06+00:00

Last night, I received a charming email message from Theresa May, revelling in all the foreigners she has kept out of the country before asking me for money. I’m paraphrasing slightly. I regret that politicians don’t have the time to keep me in the loop as much as I’m sure they’d like – I’d really like to know more about Michael Gove’s crusade to keep rudeness out of politics (presumably, he just wants it directed at his civil servants). So perhaps I should not be churlish when one of them gets in touch.

But as Theresa is supposed to be responsible for law and order, I find myself pedantically drawn to point out that her email was almost certainly illegal.

The Privacy and Electronic Communications (EC Directive) Regulations – universally and hilariously known by the acronym PECR (say it out loud) – require organisations wanting to send direct marketing emails to obtain prior consent before doing so. Much as politicians would like to think different, exhorting a member of the public to vote, to donate or support a campaign is direct marketing – both the Information Commissioner and the Tribunal have said this, and the four major political parties in the UK (Conservatives, Labour, LibDems and the Scottish Nationalists) have all received enforcement notices under PECR as a result. So unless the Conservatives have obtained my direct consent to send me these marketing emails, they’ve breached PECR and possibly Data Protection as well.

I have three email addresses – one I use for business purposes which is published on the internet. In PECR terms, I am a corporate subscriber for this address, and cannot complain about spam if I receive it. My other two email addresses are personal ones – in PECR terms, I am an individual subscriber for both. One I use for a lot of general correspondence, the other I use for competitions, surveys and other situations where I think that the person I am giving it to might send me spam emails. If I was to fill in a survey or a petition – the only place I can imagine the Tories might have obtained my email address from – I would always use the third spammy one. What’s interesting about Theresa’s email is that it was sent to the middle one – the personal address that I am more likely to read, but which is not published on the internet like my business one, but is not on all the dodgy databases that list brokers hawk, often illegitimately, as ‘opted-in data’.

In short, the Conservative Party must be able to explain how they fairly obtained an email address that I am 99% certain I would not have ever given to them, or anyone affiliated to them. This is not because I am particularly anti-Tory – I am left-wing, but I have equal contempt for all parties and politicians and avoid them all with the same diligence. Unless they can show me clearly where they got my email from and that they did so fairly (as opposed to scraping it from somewhere or buying a shonky database), they may well have breached the First Data Protection principle.

And that’s the sideshow. PECR is engagingly blunt – even if I have answered a petition or survey and unintentionally used this email address, the Conservative Party would still need my consent before sending me emails. The so-called ‘soft opt-in’ – which allows an opt-out in prescribed circumstances – applies only to sales or negotiation for a sale, conditions which would not apply to a political party.

I’ve written to the Conservatives to ask for the following information:

Where they obtained my email address from
How they obtained my consent, and a copy of the web page or document on which I indicated my consent to receive emails from them

Under Section 7 of the Data Protection Act, the Conservatives are obliged to provide me with any personal data they hold about me, and also to confirm the source from which they obtained my personal data (in this case, my personal email address). They could, of course, charge me £10 for this information, but given that the person responsible for maintaining law and order in this country has put their name on correspondence that I am pretty certain breaks the law, I think it would be polite of them to waive the fee.

Nothing is certain – I’m not going to complain to the Information Commissioner until the Conservatives show me what they did / did not do around consent. However, the current Parliament is past the halfway point, and we’re heading down a long, relentless slope towards a general election which will no doubt inspire a marketing frenzy, especially on social media, email, text and phone. It is very important that all politicians remember that PECR gives us all something very valuable for the latter three channels – easy and straightforward rights to be LEFT ALONE. The law applies to them, just as much as it does to anyone else. If you are bothered by unwelcome marketing from politicians, why not ask them the same questions I have above?

Filed under: Marketing, PECR Tagged: marketing, PECR, Politicians

Iceland's porn ban 'conflicts with the idea of a free society', say critics

2013-02-28T18:30:02+00:00

Anti-censorship campaigners say the Icelandic government's plan to ban pornography is 'an affront to the principles of society'

Anti-censorship campaigners have called on Iceland to ditch its proposals to ban pornography online and in print, labelling the plans "an affront to the basic principles of society".

An open letter co-ordinated by Iceland's International Modern Media Institute, signed by activists and academics from 19 countries, claimed the proposals have "already jeopardised longstanding efforts to prevent censorship in totalitarian regimes worldwide". The International Modern Media Institute is chaired by Icelandic MP Birgitta Jónsdóttir, the former WikiLeaks activist.

Writing to Iceland's interior minister Ögmundur Jónasson, campaigners including the Electronic Frontier Foundation in the US, the Netherlands' Open Source Working Group and Tunisian activist Rafik Dammak dissect the plans, pointing out that they suggest no specific technology or definition of what to block, and claim it is not possible to censor content without monitoring all telecommunications.

"Everything must be examined automatically by unsupervised machines which make the final decision on whether to allow the content to continue or not. This level of government surveillance directly conflicts with the idea of a free society," they said.

Such censorship would require technology similar to that employed by China and North Korea, implicitly justifying the censorship of those regimes, the letter stated.

The plans for web censorship are seemingly at odds with Iceland's liberal culture and the crowdsourced constitution currently working its way through the Icelandic parliament.

Its motivations, however, lie in tackling sexual violence, particularly children's exposure to explicit and violent sexual material. Research shows the average age of first exposure to online porn is 11.

Jónasson's adviser Halla Gunnarsdóttir told the Guardian this week that the country is "not anti-sex, but anti-violence", and that "what is under discussion is the welfare of our children and their rights to grow and develop in a non-violent environment".

The draft legislation follows laws passed in 2009 and 2010 that criminalised customers rather than sex workers and closed strip clubs.

Thursday's letter, however, suggests that sexual violence should be tackled in schools and at home.

"The internet is not the source of violence, it is merely a medium by which violence is made apparent," the activists wrote. "Iceland has positioned itself as a model democratic state in global context when dealing with freedom of the press, the open process of drafting a new constitution and open review of information regulation.

"Therefore, we implore you to reject censorship as a viable option and seek more effective means of improving society, both in Iceland and abroad."

Jemima Kiss

Court blocking orders lack transparency

2013-02-28T12:23:00+00:00

(Blog) Judge Arnold today handed down judgements allowing the BPI to instruct ISPs to block Fenopy, H33T and KickassTorrents. ISPs did not contest the orders.

Questions in House of Lords on Government plans to amend the FOI Act

2013-02-28T10:20:40+00:00

Lord Wills asked what plans the Government have to amend the Freedom of Information Act during oral questions in the House of Lords on 27 February.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government intend to amend the Act to give the Information Commissioner more time to prosecute alleged offences under Section 77 of the Act and introduce a dedicated exemption for prepublication research. Other parts of our response to post-legislative scrutiny will be implemented through secondary legislation codes of practice and guidance.

Lord Wills: My Lords, I very much welcome what the Minister has just said about giving the Information Commissioner new powers but I hope he will recognise that suggestions have been made by other Ministers-not this Minister whose commitment to freedom of information is exemplary-that they will tighten the Act. I hope this Minister will recognise that tightening the Act in the way that has been suggested will damage transparency. He will recall that the previous Government at one point proposed to increase fees for accessing freedom of information requests and then dropped the proposal when they realised the damage that that would do to transparency. Are the Government now downplaying that risk to transparency, and doing so at a time when the Francis report into Mid Staffordshire shows just how dangerous damaging transparency can be?

Lord McNally: My Lords, it is true that we are looking at other aspects of the post-legislative scrutiny through secondary legislation. However, I can assure the noble Lord that my commitment, and the Government's commitment, to transparency and freedom of information, which I see as twin tracks of government policy, remains as steadfast as it has always been. Ideas and information about other aspects of the post-legislative scrutiny fully justified the exercise and I compliment my right honourable friend Sir Alan Beith and his committee for doing an excellent job. It has done much to embed freedom of information in our political culture.

Lord Marks of Henley-on-Thames subsequently asked the Minister to give an assurance that there would be no extension of the Government's power to decisions of the Information Commissioner and Tribunal and no further fees, particularly for appeals to the Tribunals.

Lord McNally: I do not think I can give an absolute assurance on that. We decided to retain the veto following discussions that had gone on since the start of the freedom of information debate about whether, at the very heart of government, a safe space was needed for genuine discussions. At the moment, I am having discussions with colleagues about these ideas and principles and in due course I will inform the House and give it an opportunity to comment on this. It is always an interesting balance. We have faced this problem for a decade or more since we debated these principles in this House. Indeed, we had a very interesting debate a few months ago where a whole clutch of former mandarins gave their opinions about what is called the "chilling effect" of freedom of information. I do not accept that there is such a chilling effect, but I do accept that it is right-as is the proper intention of the post-legislative review of the Act-that we look at how the Act is working and we will come back with recommendations in the areas raised by my noble friend.

Surely this can’t be because of data protection ...

2013-02-27T18:01:42+00:00

If the Daily Mail is to believed (and I appreciate that’s a big “if”), then today I have come across another piece of evidence which indicates that European policy makers may well be incapable of agreeing on the meaning of some of the most important concepts of data protection law, like fairness and consent.

This blog is not designed to criticise the policy makers themselves – more it’s to point out that various communities within Europe have very different social and cultural expectations as to what is considered appropriate behaviour. And I’m all for local communities being able to respect their own cultural sensitivities.

The evidence is the report that policy makers in Berlin have recently decided that it is not appropriate for a German TV company to copy the format of the British TV series “One Born Every Minute”, which follows staff and patients on a busy maternity ward. Why? Well, evidently, because it was an invasion of privacy for newborn babies.

Given that, in the UK, the viewers only get to see each baby for a few seconds after their birth, it’s really hard to appreciate why their fundamental rights can take precedence over the rights of the nursing staff and the patients, who really are the focal points of the programme, and who would certainly have signed as many consent forms as any conscientious broadcaster would have created.

I do hope that this story is inaccurate. I do hope that the inference – which is that “German data protection rules ” have prevented potentially great TV programmes being made in Germany, is incorrect.

And I am so glad that the bods at the Information Commissioner's Officce are evidently happy that the British version of “One Born Every Minute” doesn’t breach any sensible UK data protection rules.

If the German viewers aren't allowed to see their own stories, hopefully they can pick up the British version, so that they can enjoy what they have been forbidden to create themselves.

Source:

http://www.dailymail.co.uk/news/article-2285292/German-city-bans-version-British-reality-One-Born-Every-Minute-claiming-invasion-privacy-newborn.html

Image credit:

OurBabyNews.com

http://www.plushbeds.com/blog/sleep-science/how-to-sleep-when-you-have-a-newborn/

[Elsewhere] Digital Colonialism: Africa's new communication dimension

2013-02-27T13:42:47+00:00

Africa is rapidly becoming "the place to be" for Western businesses. Despite common preconceptions expressed in Twitter hashtags like #FirstWorldProblems, a lot of African economies are growing rapidly, and US and European companies are looking to the continent for their next wave of consumers. This is not as surprising as you might initially think. Compared to Western Europe with its declining birth rates and, in many countries, negative population growth, Africa's population continues to grow rapidly.

Birth month affects Oxbridge chances

2013-02-27T08:57:45+00:00

The likelihood of becoming a student at Oxford or Cambridge Universities can be strongly influenced by date of birth.

Last year the chance of someone born in October becoming an Oxbridge undergraduate was more than 30% higher than for someone born in July.

In seasonal terms, compared to the summer-born applicants, autumn births were 25% more likely to get an Oxbridge place, while for winter and spring births the figures were 17% and 15% more likely respectively.

This is according to data obtained from both universities under freedom of information and analysed by the BBC.

It raises the issue of whether universities should start to consider applicants' dates of birth when deciding who to give places to.

It is a well established fact in educational research that children who are younger in their year group at school tend on average to do significantly worse in terms of educational attainment. Known sometimes as the "birthdate effect" or "relative age effect", this generally diminishes as children get older but does not vanish.

Less research has been done on the implications for later life, but what these Oxbridge admissions statistics now demonstrate is that the impact on life outcomes can persist beyond school.

The birthdate effect is also a recognised phenomenon in sport.

We obtained figures from both universities for the months of birth of undergraduate applicants for places in 2012. This data only refers to applicants resident in the UK, not international students. The statistics for both universities reveal a similar monthly pattern for those accepted.

Oxbridge undergraduates admitted 2012

Month of birth

Oxford

Cambridge

TOTAL

Births (1993/4)

Effect

Sep

233

237

470

66,776

1.12

Oct

256

259

515

64,167

1.28

Nov

235

470

59,603

1.26

Dec

238

219

457

62,877

1.16

Jan

259

214

473

62,543

1.20

Feb

208

173

381

57,597

1.05

Mar

227

239

466

65,319

1.14

Apr

215

242

457

62,651

1.16

May

208

229

437

65,454

1.06

Jun

214

182

396

64,429

0.98

Jul

190

194

384

64,612

0.95

Aug

212

182

394

62,738

1.00

Sources: Oxford and Cambridge Universities; births data from ONS, General Register Office for Scotland and NISRA; analysis by BBC

This fits with the birthdate effect. The vast majority of UK applicants to Oxbridge are from England and Wales, where school year groups are formed on a September-August basis. Thus those who have been older within their year groups are more likely to reach Oxbridge than their younger classmates.

(In Scotland, school year groups are formed on a March-February basis, and in Northern Ireland on a July-June basis. But only about 3 to 4% of UK-domiciled Oxbridge students are from Scotland or Northern Ireland, so the general picture is still valid.)

Of course the number of people actually born in each month also varies, but this does not explain the variation in Oxbridge admissions. For comparison I have included in the table above the numbers of births by month in the UK in 1993/94, which is the year of birth for more than 80% of the students accepted in 2012.

The final column measures the relative impact for Oxbridge entrance of being born in that month compared to August.

This means that on this basis for someone born in September, say, the likelihood of an Oxbridge place in 2012 was 1.12 times (or 12% higher than) for someone born in August.

It takes into account the overall numbers born in that month 18 years previously. This is a simplified and quick analysis, which ignores various details. But none of these factors should alter the broad overall picture of the strong presence of a birthdate effect.

However, in all this it is very important to note that for both universities a similar pattern - weighted towards birthdays earlier in the September-August academic year - applies to all applicants, not just those who were accepted.

This suggests the birthdate effect (like some other inequalities) is already present in influencing which pupils are doing well enough at school to apply to Oxbridge.

In other words, the Oxbridge admissions process is probably reflecting a pre-established pattern of educational disadvantage, not creating it.

Both Oxford and Cambridge routinely issue a broad collection of statistics relating to admissions, such as gender, ethnicity, disability, region and school type of candidates. However neither proactively publishes the data on month of birth, which we therefore obtained through requests under the Freedom of Information Act.

Both universities state they do not take an applicant's month of birth into account in the admissions process. A Cambridge spokesperson said that an analysis of admissions statistics should examine a range of variables over several years. Neither university wanted to issue any further reaction.

The impact of month of birth on a wide range of child and adult outcomes is currently the subject of a major research project conducted by the Institute of Fiscal Studies, which is expected to report in May.

Ellen Greaves, one of the IFS researchers, commented: "The data obtained by the BBC show that universities, including Oxford and Cambridge, may be missing out on some of the brightest students by accepting disproportionate numbers of pupils born earlier in the academic year."

"Although much could and should be done to address these inequalities earlier in the education system, it is in each university's interest to make sure that they consider a pupil's month of birth in their admissions process."

Gulf states accused of co-ordinated crackdown on dissent

2013-02-26T17:16:00+00:00

UAE's refusal to grant entry to an LSE academic and two Bahraini journalists may stem from security deal agreed last year

Nervous Gulf states appear to be co-ordinating a crackdown on critics in the media and academic world as well as on political activists who challenge the status quo and protest about human rights abuses.

Two leading Bahraini journalists were blocked from entering the United Arab Emirates on Monday for unspecified reasons, just days after the UAE refused entry to Kristian Ulrichsen, of the London School of Economics, who was scheduled to speak about Bahrain at a conference on the Arab spring, which has unsettled all the region's conservative monarchies.

Mansour al-Jamri, editor of the Bahraini newspaper al-Wasat, was refused entry at Dubai international airport along with his wife, Reem Khalifa, an Associated Press correspondent. Jamri had been due to attend a conference on newspapers but believes the ban stems from a security deal agreed by the six Gulf Co-operation Council (GCC) members last year. "The ban clearly has nothing to do with the conference," he told the Guardian . "But we were told it was a decision from the top."

The contents of the pact remain secret but it includes a shared database. GCC security concerns focus on the Muslim Brotherhood, other Islamist groups and Iranian influence, while the ongoing unrest and political tensions in Bahrain have a sectarian character. Restrictions on social media have become common.

The UAE foreign ministry said that Ulrichsen was not allowed into the country because his work had criticised Bahrain's monarchy, which has faced street protests since the Pearl revolution erupted two years ago. A UAE contingent was part a Saudi-led GCC intervention force deployed in Bahrain in 2011.

"The UAE took the view that at this extremely sensitive juncture in Bahrain's national dialogue it would be unhelpful to allow non-constructive views on the situation in Bahrain to be expressed from within another GCC state," the statement said. Ulrichsen had "consistently propagated views de-legitimising the Bahraini monarchy", it added.

The Manama government, under pressure from western allies, wants a dialogue on reform with the opposition but blames it for violence.

The LSE cancelled the conference on the Arab spring it had planned to hold over the weekend at the American University of Sharjah, in the UAE, citing "restrictions imposed on the intellectual content of the event that threatened academic freedom". The last-minute cancellation came after the Emirati authorities requested that a presentation on Bahrain be dropped.

Bahrain now routinely restricts access for reporters. A Guardian request for a visa to visit in February was at first rejected on the grounds of inappropriate timing. A request for clarification went unanswered. Then a visa was suddenly issued just before the anniversary of the 2011 uprising, valid for just four days but for immediate use.

"These regimes are particularly nervous about respected voices being heard," said Rori Donaghy of the Emirates Centre for Human Rights in London. "They are trying to manage dissent with their own populations. They are concerned about people who they can't dismiss as traitors or members of the Muslim Brotherhood or proxies of Iran. That's the crux of it."

Ulrichsen commented in an account of his experience in Dubai: "The monarchies are reacting to the transformative online power of new media and social networking sites by attempting to close down these spaces for free discussion and debate and reminding would-be detractors of the coercive power at their disposal.

"Denying me entry may have been a sovereign right, but it signifies that the gloves are off, and that the UAE currently is a deeply inimical place for the values that universities are supposed to uphold."

The UAE has cracked down on political dissent since the Arab spring. Ninety-four people charged with conspiring to overthrow the regime go on trial next week amid criticism from rights groups about the lack of public due process in the case.

Ian Black

ICO cites Upper Tribunal on “vexatiousness”

2013-02-26T14:57:43+00:00

The Information Commissioner has issued his first decision notice citing the Upper Tribunal’s judgments on “vexatiousness” since the latter were handed down

On 7 February 2013 the Upper Tribunal handed down judgment in three appeals relating to requests for information which had been refused either under section 14(1) of the Freedom of Information Act 2000, or regulation 12(4)(b) of the Environmental Information Regulations 2004. These two provisions provide, respectively, that the general obligation on public authorities to disclose information on requests is disapplied if the request is “vexatious” or “manifestly unreasonable”. Until the Upper Tribunal ruled on these cases there had been no authority from a relevant appellate court, and there was considerable variation in how the Information Commissioner and the First-tier Tribunal (Information Rights) approached these cases – I recently wrote about this position of uncertainty for PDP’s FOI Journal.

Both Paul Gibbons and Robin Hopkins have written, comprehensively, about the Upper Tribunal’s decisions, and the NADPO Spring Seminar will feature James Cornwell, of 11KBW, talking about the subject, so I merely blog now to observe that the Information Commissioner (IC) has correctly also taken note of them. In upholding a decision to refuse to disclose information, in decision notice FS50459595 (regarding a request to the Chief Constable of Surrey Police) he says

In reaching a conclusion in this case the Commissioner is also assisted by the Upper Tribunal’s comments in the case of Wise v Information Commissioner: “Inherent in the policy behind section 14 (1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request and thetime and other resources that would be needed to provide it.”

It is interesting to note the IC’s reliance on this passage. What is also interesting (and not to be criticised) given the timing, is that the IC continues to refer to his own guidance (“When can a request be considered vexatious or repeated?”) in determining these sort of cases. The Upper Tribunal, while saying that “there is much to commend in the IC’s Guidance” (¶41 of the Dransfield judgment) did go on to give strong hints that it might need revising

in accordance with the thrust of this decision, it may be that the Guidance needs to place greater weight on the importance of adopting a holistic and broad approach to the determination of whether a request is vexatious or not, emphasising the attributes of manifest unreasonableness, irresponsibility and, especially where there is a previous course of dealings, the lack of proportionality that typically characterise vexatious requests

The fact that the IC honed in on the concept of a proportionality approach in this recent decision notice suggests the revised guidance might be appearing sooner rather than later.

The Oxford race gap: exploring the data

2013-02-26T14:27:00+00:00

New findings published in the Guardian show there are fresh questions for those trying to explain the Oxford university race gap. James Ball delves deeper into the data
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It's a mystery worthy of an Oxford admissions question: just what, exactly, is going on with applications to Britain's most prestigious universities?

As new findings published in the Guardian show, there are fresh questions for those trying to explain the gap between offers given to different ethnic groups at the university:

Oxford University has been accused of "institutional bias" against black and ethnic minority students after figures revealed that white applicants to some of the most competitive courses are up to twice as likely to get a place than others, even when they get the same A-level grades.
Figures for applications to the university in 2010 and 2011, obtained by the Guardian under the Freedom of Information Act, revealed that 25.7% of white applicants received an offer to attend the university, compared with 17.2% of students from ethnic minorities …
White students were more than twice as likely to receive an offer to study medicine than those from ethnic minorities. The effect persisted for the most able students: 43% of white students who went on to receive three or more A* grades at A-level got offers, compared with just 22.1% of minority students.
For economics and management, the university's most competitive course, 19.1% of white applicants received offers, compared with 9.3% for ethnic minorities. Among the most able, these success rates increased to 44.4% and 29.5% respectively.

The overall application gaps between different ethnic groups are stark, whether for all applicants or even just for those who go on to get the top grades (A*A*A* or better at A-level):

Different people may jump to different explanations for the stark gaps. But the figures are worth pondering (especially given applications for law show no significant differences) in a little more detail.

The first thing to note is that all the figures relate to UK applicants – international are excluded – who provided information on their ethnicity on their UCAS forms (around a third of all applicants choose not to provide this information). This at least means like is being compared with like.

The second is to spot that the long-running explanation given for an application race gap – disparities in which subjects students apply for – may still have some explaining power, as the below table shows.

It shows what proportion of students from each ethnic group applied for some of Oxford's most and least competitive courses – and does show ethnic minorities are more likely to apply for some of the hardest courses to get on.

So subject mix, it seems, could account for some of the overall gap between white applicants and similarly-performing students from ethnic minorities.

But this mix cannot explain the discrepencies within some of those subjects themselves – and nor, as these figures show, can those differences be explained by ability, at least so far as that is reflected within the grades students go on to get (university spokeswomen were keen to stress A-levels are just one measure of ability, which they say is also ascertained through additional tests and interview).

As ever, the data can only really show us what's happening, rather than why, or how it might be changed. But we've posted the full FOI data as released by Oxford below – take a look and let us know what you find.

One important caveat, however: on the individual subjects, applicant numbers get very small (particularly when looking at students with three A* or higher). As a result, some apparent differences between different ethnic groups will very likely be a result of random quirks – or in other words, not statisitically significant.

To get robust results, we grouped all ethnic minority candidates together and compared them with their white counterparts, generating statistically significant results for medicine and economics and management.

The data is below – let us know what you find in the comments below or via email to james.ball@guardian.co.uk.

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James Ball

Another wild claim about "that" Regulation?

2013-02-24T16:48:46+00:00

The Dutch MEP Sophie In 't Veld has high hopes for the forthcoming General Data Protection Regulation (or whatever it will end up being called).

Apparently, new rules can force companies into innovating, and could give the EU a competitive advantage. I’m not sure over whom, but I suspect that what is meant behind the claim is that those data hungry non EU -based organisations (mentioning no names, of course) would find their services less compelling if only EU the EU organisations got their regulatory acts together.

Well, if that happens, then I’m all in favour of the new rules.

But is it likely to happen?

How much additional red tape usually results in a company obtaining a competitive advantage?

Answers, please, on a postcard, to the usual address.

And make the handwriting legible this time. Too much time at the keyboard kills those essential handwriting skills.

Source & Image credit:

http://www.theparliament.com/latest-news/article/newsarticle/data-protection-rules-will-give-eu-competitive-advantage/#.USdnfXfYElQ

Protests mark WikiLeaks suspect Bradley Manning's 1,000th day in jail

2013-02-23T17:20:43+00:00

Rallies and events staged around world ahead of former intelligence analyst's return to military court next week

Supporters of Bradley Manning, the US soldier who is accused of being behind the largest leak of state secrets in America's history, held a series of rallies across the US and the world on Saturday.

The demonstrations in more than 70 locations were aimed at marking Manning's 1,000th day in jail and came as the young soldier prepares to appear again before a military court next week. Manning is being prosecuted by the US government for allegedly transmitting confidential material to the anti-secrecy campaigner Julian Assange's web organisation WikiLeaks.

The US government considers such actions a threat to its national security. If convicted the 25-year-old could be confined to military custody for the rest of his life. But Manning's plight has become a cause célèbre among Wikileaks supporters, as an example of a brave whistleblower exposing injustice.

"A heroic young man faces life in prison for exposing the truth," said Jeff Paterson, a spokesman for the Bradley Manning Support Network.

Earlier on Saturday, protests were set to be held in Australia, Britain, Germany, France, South Korea and Belgium, as well as several other countries. In the US, planned actions stretched from coast to coast with events scheduled for Los Angeles, San Francisco, Denver, New York and dozens of other communities.

Manning, a former military intelligence analyst, faces 22 charges relating to the leaking of hundreds of thousands of classified diplomatic cables, war logs from the Afghan and Iraq wars, and videos of US military actions. The most serious count, that of "aiding the enemy", accuses him of arranging for state secrets to be published on the internet, knowing that al-Qaida would have access to them.

Paul Harris

Privacy is not the enemy – rebooted…

2013-02-23T07:36:50+00:00

Today, Saturday February 23rd 2013, is International Privacy Day. To mark it, I’ve done a re-boot of an old blog post: ‘Privacy is not the enemy’. The original post (which you can find here) came back in December 2011, after I attended an ‘open data’ event organised by the Oxford Internet Institute – but it’s worth repeating, because those of us who advocate for privacy often find themselves having to defend themselves against attack, as though ‘privacy’ was somehow the enemy of so much that is good.

Privacy is not the enemy

Privacy advocates are often used to being in a defensive position – trying to ‘shout out’ about privacy to a room full of avid data-sharers or supporters of business innovation above all things. There is a lot of antagonism. Those we speak to can sometimes feel that they are being ‘threatened’ – some of the recent debate over the proposed reform of the Data Protection regime has had very much that character. And yet I believe that many of those threatened are missing the point about privacy. Just as Guido Fawkes is wrong to characterise privacy just as a ‘euphemism for censorship’ (as I’ve written about before) and Paul McMullan was wrong to suggest to the Leveson Inquiry that ‘privacy is for paedos’, the idea that privacy is the ‘enemy’ of so many things is fundamentally misconceived. To a great extent the opposite is true.

Privacy is not the enemy of free expression – indeed, as Jo Glanville of Index on Censorship has argued, privacy is essential for free expression. Without the protection provided by privacy, people are shackled by the risk that their enemies, those that would censor them, arrest them or worse, can uncover their identities, find them and do their worst. Without privacy, there is no free expression. The two go hand-in-hand, particularly where those without ‘power’ are concerned – and just as privacy shouldn’t just be something available for the rich and powerful, free speech shouldn’t only be available to those robust enough to cope with exposure.

Privacy is not the enemy of ‘publicness’ - in a similar way, to be truly ‘public’, people need to be able to protect what is private. They need to be able to have at least some control over what they share, what they put into the public. If they have no privacy, no control at all, how can they know what to share?

Privacy is not the enemy of law enforcement – privacy is sometimes suggested to be a tool for criminals, something behind which they can hide behind. The old argument that ‘if you’ve got nothing to hide, you’ve got nothing to fear’ has been exposed as a fallacy many times – perhaps most notably by Daniel Solove (e.g. here), but there is another side to the argument. Criminals will use whatever tools you present them with. If you provide an internet with privacy and anonymity they’ll use that privacy and anonymity – but if you provide an internet without privacy, they’ll exploit that lack of privacy. Many scams related to identity theft are based around taking advantage of that lack of privacy. It would perhaps be stretching a point to suggest that privacy is a friend to law enforcement – but it is as much of an enemy to criminals as it is to law enforcement agencies. Properly implemented privacy can protect us from crime.

Privacy is not the enemy of security – in a similar way, terrorists and those behind what’s loosely described as cyberwarfare will exploit whatever environment they are provided with. If Western Law enforcement agencies demand that social networks install ‘back doors’ to allow them to pursue terrorists and criminals, you can be sure that those back doors will be used by their enemies – terrorists, criminals, agents of enemy states and so forth. Privacy International’s ‘Big Brother Inc’ campaign has revealed the extent to which surveillance products developed in the West are being sold to despotic and oppressive regimes – in an industry worth an estimated $5 billion a year. It’s systematic, and understandable. Surveillance is a double-edged sword – and privacy is a shield which faces many ways (to stretch a metaphor beyond its limits!). Proper privacy protection works against the ‘bad guys’ as well as the ‘good’. It’s a supporter of security, not an enemy.

Privacy is not the enemy of business – though it is the enemy of certain particular business models, just as ‘health’ is the enemy of the tobacco industry. Ultimately, privacy is a supporter of business, because better privacy increases trust, and trust helps business. Governments need to start to be clear that this is the case – and that by undermining privacy (for example though the oppressive and disproportionate attempts to control copyright infringement) they undermine trust, both in businesses and in themselves as governments. Privacy is certainly a challenge to business – but that’s merely reflective of the challenges that all businesses face (and should face) in developing businesses that people want to use and are willing to pay money for.

Privacy is not the enemy of open data – indeed, precisely the opposite. First of all, privacy should make it clear which data should be shared, and how. ‘Public’ data doesn’t infringe privacy – from bus timetables to meteorological records, from public accounts to parliamentary voting records. Personal data is just that – personal – and sharing it should happen with real consent. When is that consent likely to be given? When people trust that their data will be used appropriately. When will they trust? When privacy is generally in place. Better privacy means better data sharing.

All this is without addressing the question of whether (and to what extent) privacy is a fundamental right. I won’t get into that here – it’s a philosophical question and one of great interest to me, but the arguments in favour of privacy are highly practical as well as philosophical. Privacy shouldn’t be the enemy – it should be seen as something positive, something that can assist and support. Privacy builds trust, and trust helps everyone.

———————————-

Over the time since I first wrote this post, privacy has if anything become bigger news that it was. If Facebook launches a new product (e.g. Graph Search, about which I wrote here and here), it makes privacy a centre-piece of the launch, regardless of the true privacy impact of the product. Apple has now put privacy settings into iOS for its iPhone and iPad. Privacy is big news! Let’s mark International Privacy Day by reminding ourselves that privacy is not an enemy – the opposite….

Obama White House expands access to federally funded research

2013-02-22T23:11:14+00:00

Campaigners herald boost for accessibility of scientific information and say Aaron Swartz case gave momentum

The White House has announced that is expanding public access to federally-funded research. The move was heralded as a "landmark" by open-access advocates.

A new directive issued on Friday states that federal agencies which spend more than $100m in research and development must develop a way to make the results of such federally-funded research publicly available within one year of publication. This is similar to the National Institute of Health's policy, which requires its research to be publicly available a year after it is published.

"I think at the core of this executive order is a real understanding by the administration of the value of enhancing access to scientific information," said Kenneth Crews, director of Columbia University's copyright advisory office.

The government invests billions of dollars in research and Crews said the directive will have major benefits for researchers and regular citizens. "Most of the important research today in the US is the result of federal funding," he said. "The taxpayers definitely have an interest in having access to it."

Public support for open-access issues increased after the open-internet advocate Aaron Swartz killed himself in January. At the time of his death, Swartz was facing up to 35 years in prison and a $1m fine, for downloading academic journal articles from the JSTOR database.

Open-access advocates have campaigned for legislation for nearly a decade. FASTR, a bill that would require federal agencies to make research public within six months of the publication date, was reintroduced in Congress last week.

"We're happy to see the Obama administration take some direct action to move it forward more quickly than would have been feasible had it moved through the congressional process," Crews said.

The White House said it has been looking into the issue for some time, and that an online petition on its We The People site was one of many factors that influenced the administration's decision.

A White House statement said: "The final policy reflects substantial inputs from scientists and scientific organizations, publishers, members of Congress, and other members of the public – over 65 thousand of whom recently signed a We the People petition asking for expanded public access to the results of taxpayer-funded research."

Nancy Sims, a copyright librarian at the University of Minnesota and a lawyer, has been hoping for a directive that applies to all federal agencies for several years. "This is definitely something that the University of Minnesota libraries, and I think a lot of research libraries, have been working towards for a long time and its great to see action at the White House level," she said.

She said the Swartz case had added momentum to the open-access campaign. "I think that made the research-access question of greater interest to people who would not have been paying attention otherwise and to some politically active people who would not have been paying attention otherwise," she said.

Heather Joseph, executive director of SPARC, a group that works to broaden public access to scholarly research, said in a statement that the directive was a "watershed moment".

"The directive will accelerate scientific discovery, improve education, and empower entrepreneurs to translate research into commercial ventures and jobs," Joseph said. "It's good for our nation, our economy, and our future."

Amanda Holpuch

Practice makes perfect

2013-02-22T17:18:14+00:00

Wirral borough council is on the watch list at the moment. I would really like to send in a good practice squad to Wirral borough council, but I do not have the powers do that. I am not picking on Wirral; it is just an example that comes to mind

So said Commissioner Christopher Graham in evidence to the Justice Committee during a recent one-off session on the work of the Information Commissioner’s Office (ICO).

The rather self-contradictory observation that he was not picking on that particular public authority is not the most interesting point about his comments (although it does seem a bit hard on Wirral, when the Department for Education, the Department for Work and Pensions and the Office of the First Minister and Deputy First Minister of Northern Ireland are all also currently subject to formal monitoring for especially poor compliance with the Freedom of Information Act 2000 (FOIA)).

What does strike me, though, is his complaint that he lacks powers to “send in a good practice squad”. Although strictly true, there is an enforcement power which he does have, which equates to the power to send in a “good practice squad”, albeit with the consent of the public authority concerned. To my knowledge, however, this is a power he and his predecessor have never exercised.

Section 47(3) of FOIA says

The Commissioner may, with the consent of any public authority, assess whether that authority is following good practice

In the ICO’s own guidance on his FOIA regulatory action policies, he says

An assessment may be conducted with the consent of a public authority. It is designed to determine whether an authority is following good practice – and specifically, to assess its conformity to the codes of practice [made under sections 45 and 46 of FOIA]

A Standard Operating Procedure document (disclosed, ironically enough, by the ICO in response to a FOIA request) suggests that the ICO sees his policy of monitoring FOIA compliance in specific poorly-performing authorities as constituting a s47(3) assessment. However, my feeling is that this does not restrain him from extending his actions under this section to physically sending in ”good practice” teams. Certainly the Scottish Information Commissioner sees his equivalent powers under section 43(3) of the Freedom of Information (Scotland) Act 2002 as a means of conducting such good practice visits, and he does approximately twelve of them a year.

I appreciate that the ICO prefers to take a more informal route towards enforcing FOIA compliance, by means, for example, of monitoring at a distance, or by issuing undertakings (“The culmination of negotiated resolution, [committing] an authority to a particular course of action in order to improve its compliance”). But there is doubt about how seriously some public authorities treat this informal approach. If he really did want to send in “good practice squads” I think he could certainly do so (and if an authority were to refuse consent, it could potentially trigger stronger powers, like practice recommendations and enforcement notices).

FOI and First Contact

2013-02-22T14:37:42+00:00

FOI Man brings you a tale of alien first contact from Scotland…

Last year Leicester City Council revealed their plans for responding to a zombie attack, and now Glasgow City Council has shown its preparedness for alien first contact. The council was asked:

“As mankind continues to advance and head out into the stars we are undoubtedly going to attract the attention of whatever lifeforms are out there. I’m curious to know what provisions have been put in place for our inevitable encounter.”

Glasgow’s Head of Information Governance, Dr Kenneth Meechan, could very easily have responded by answering that the information was not held, or claimed that the request was vexatious. But no. As he put it to me, he is “a science fiction fan [so] it’s nice to get a rare chance to mix work and pleasure”. I’m not sure whether or not the requester will be reassured that the council does not view alien contact as likely within the next five years. Aliens may be pleased to learn though that the council can assure them “a warm and peaceful welcome.” Overall, Dr Meechan concluded that contact was unlikely as “[t]he council does not own or control any radio telescopes” and because Glasgow only covers 0.00003% of the planet’s surface, making it statistically unlikely that aliens would choose to land there.

Not surprisingly perhaps, the request and its creative response attracted wide media coverage in Scotland. The Scotsman and The Herald each raised an amused eyebrow, whilst the Scottish Sun showed a picture of Mr Spock raising one whilst reporting on “wacky council number crunchers.” Ah well, you can’t win ‘em all.

Last word goes to the Glasgow City Council spokesperson who told the Scottish Sun: “We like to go the extra mile to answer freedom of information requests — even if the truth isn’t out there.”

Thanks to Dr Meechan for sending me links to those articles, and for providing a bit of welcome FOI Friday fun.

Iran targets BBC Persian service by jamming signals and harassing staff

2013-02-22T11:47:00+00:00

Staff at the BBC's Persian service face satellite jamming, smear campaigns and intimidation, says Peter Horrocks, director of the BBC World Service.

In an article for Index on Censorship, he reveals that Iran's interference with the BBC's signals started in 2009 at the time of Iran's presidential election.

Jamming began on election day and continued in the aftermath of the election during the street protests.

Since then, he writes, the jamming of BBC Persian has continued intermittently. Two weeks ago, on 9 February, during the Iranian government's anniversary celebrations of the Islamic Revolution, Persian TV was taken off the air in company with 13 other broadcasters.

Horrocks writes: "In response, we have increased the number of satellites carrying the channel and technical changes were made to help reduce jamming on the original signal. However, more work needs to be done."

He calls for "all stakeholders" in their different fields - technical, regulatory and political - to work together to address the issue of satellite jamming.

He pointed to one "very useful event" in January, organised by the satellite operator Eutelsat, in which it demonstrated how it locates interference to satellites in order to provide evidence to the UN agency, International Telecommunication Union.

And he praises Eutelsat for its decision to "invest in technologies that identify sources of deliberate interference and make jamming more difficult."

As he also points out, the Iranian government has used other tactics to restrict the free flow of information to its people. BBC Persian staff and their families have been subject to increasing harassment and intimidation.

This has been accompanied by a widespread anti-BBC campaign in Iran, as The Guardian reported last month. Fake Facebook pages and fake blogs have been set up and then attributed to BBC Persian journalists in order to discredit them by accusing them of sexual promiscuity or acting as spies.

Sources: Index on Censorship/The Guardian

Roy Greenslade

We still have judgment here

2013-02-21T12:59:01+00:00

Mr Justice Tugendhat makes very interesting observations about reserved judgments and open justice, in a judgment on whether a defendant is in breach of prior undertakings relating to tawdry publications about the parents of Madeline McCann:

The decision not to identify in a reserved judgment a fact or person that has been identified in open court is not a reporting restriction, nor any other derogation from open justice. The hearing of this committal application was in public in the usual way. The decision not to set out everything in a judgment is simply a decision as to how the judge chooses to frame the judgment (¶86)

I have previously written about discussions taking place about the privacy and data protection implications of electronic publication of lists from magistrates’ courts, and I also wrote a thesis (NEVER to see the light of day thank you very much) which attempted in part to deal with the difficulties of anonymisation in court documents. These seem to me to be very urgent, and tremendously difficult, considerations for the subject of open justice in the digital era (the title of the initiative, led by Judith Townend, to “make recommendations for the way judicial information and legal data are communicated in a digital era”).

The judgment continues with Tugendhat J observing that, in previous cases where he has referred to parties by initials in reserved judgments this has sometimes been misinterpreted as his having made an anonymity order. Not true: the proceedings themselves were in open court, but

what happens in court, if not reported at the time, may be ephemeral, and may soon be forgotten and become difficult to recover, whereas a reserved judgment may appear in law reports, or on the internet, indefinitely (¶87)

This is a crucial point. My concern has always been about the permanence of information published on the internet, and the potential for it to be used, and abused, in ways and under jurisdictions, which would make a mockery of, for instance, the Rehabilitation of Offenders Act 1974, and the Data Protection Act 1998.

I haven’t noted the judge’s comments for any particular reason, other than I think they helpfully illustrate some important points, and might provoke some discussion.

Upper Tribunal issues further decision in Prince Charles’ letters saga

2013-02-21T11:55:14+00:00

In the latest round of the legal and political boxing match that the Evans case has become, the Upper Tribunal (“UT”), chaired by Walker J, has decided that the government should release its “schedules and lists” of “advocacy correspondence” between Prince Charles and various government departments (see the judgment here).

The UT had previously determined, in September 2012 (see Robin Hopkins’ post) that the government should release the “advocacy correspondence” it had received from Prince Charles and which had been requested by Mr Evans as long ago as 2005. The UT had not, though, issued a substituted decision notice pursuant to that determination because it had sought the parties’ further submissions on the question of appropriate redactions to the correspondence in question.

Before any further submissions had been made, however, the Attorney General had issued a veto under s 53, which veto renders the UT’s determination in relation to the “advocacy correspondence” of no effect*. (See Christopher Knight’s previous post.)

One might have thought that that would be the end of the matter so far as the UT was concerned. However, there was a second part of Mr Evans’ request which had not been ruled on substantively as part of the UT’s decision of September 2012. As well as requesting the actual correspondence, Mr Evans had requested lists and schedules of that correspondence. At the substantive hearing, Mr Evans had conceded that, if the UT found in his favour in relation to the actual correspondence there would be no need for it to go on to consider his “lists and schedules request” because he would, if in possession of that actual correspondence, be able to produce such lists and schedules himself.

Faced with the government’s veto annulling his victory with regards to the actual correspondence, Mr Evans applied to the UT inviting it now to rule on his “lists and schedules request”. The government, represented by Jonathan Swift QC and Julian Milford, argued that the UT had no power to reopen its previous decision, contending that the UT had in its September 2012 decision made a final determination that it was unnecessary to make a substantive ruling on the “lists and schedules request”. The Information Commissioner, represented by Tim Pitt-Payne QC, agreed with the government. All parties, including Mr Evans, agreed that the limited express powers that the UT has to review its own decisions did not apply in this case.

However, Mr Evans argued that none of this mattered: he said he was not asking the UT to review its decision, or to reopen it. He was simply asking the UT to decide a part of his appeal that it had not yet decided. The UT agreed.

It went on to find that, for the same reasons as it had considered the actual correspondence should be disclosed, the lists and schedules should be disclosed. The UT said that the only difference in terms of the balance of public interests so far as the lists and schedules were concerned was that both the public interest in disclosing the information and the public interest in maintaining the exemptions relied upon were less than with the actual correspondence. Overall, though, the balance was still the same and the lists and schedules should be disclosed.

We will now have to wait and see whether the government will deliver a further punch in the form of a second veto.

The government may not, however, have the last word since Mr Evans has commenced judicial review proceedings challenging the use of the veto in this case – proceedings which will be the first such challenge to the use of the veto.

Holly Stout

* There is a question mark about the effect of the veto in this case as the power of veto in s 53(2) is drafted by reference to a ‘decision notice’, but the UT had not in fact issued a substitute decision notice at the point that the veto was exercised. This is not a point that the UT needed to address in this decision, and it appears it will probably not be dealt with as part of the judicial review proceedings either.

Proposed EU Data Protection Regulation and Research

2013-02-21T09:49:42+00:00

David Erdos believes a bid to tighten European data protection will have a chilling impact on social science and humanities research. He writes: Even with the advent of Web 2.0, data protection law is still often seen as technical and … Continue reading →

Signifying nothing

2013-02-21T09:16:43+00:00

I was an FOI / DP officer in local government for the first five years of FOI’s operation, and like everyone else in the field, I got used to spotting trends – certain topics would come up again and again, certain requests would follow certain events. Of course, I also got used to certain names – journalists from the Mirror, the Telegraph, and the Sunday Times, and activists / staffers from the opposition political parties. Reading an old article by the Bureau of Investigative Journalism about Michael Gove’s special advisers this morning, I was struck by how many names I recognised from those requests.

There is nothing remotely sinister about this. In opposition, the research departments of both the Conservatives and the Liberal Democrats (as well as some campaigning MPs and their researchers) made enthusiastic use of FOI, and so they should have. This is one of the things that FOI is designed for – to allow access to unpublished information so that authority can be questioned and challenged. The political motive is irrelevant. When the two coalition parties eventually find themselves in opposition again, they will use FOI to the same ends. Presumably, in those places where they are in local government opposition, they still do. Anyone who complains about this is naïve to the point of stupidity – oppositions oppose, and they will hunt out useful and inconvenient stories wherever they can find them.

I point this out not to criticise Gove’s minions for their use of FOI – I commend them for it. My point is to suggest that the Education Secretary’s current attitude to FOI and the way his circle have apparently tried to circumvent it is hypocritical and counter-intuitive. The evolutionary end of Gove’s three-year war with transparency and accountability is the public letter he wrote this week to the Information Commissioner, throwing in the towel over his attempts to allow religious and other groups to apply to run free schools in secret. Gove’s petulant missive was big on claim: “We are aware of personal attacks on individuals who simply want to improve educational standards and choice locally” and “We have been told of instances where teachers have lost their jobs simply by virtue of their association with a Free School application”. But it was short on detail. A few years ago, Gove managed to get massive headlines about unfair adoption practices based on a story that turned out to be an anecdote passed on by a third party which no-one in his department had checked. The language here is interesting – ‘We are aware’ and ‘We have been told’ are careful phrases perhaps intended to give Mr. Gove plausible deniability if his claims can be proved to be scaremongering bollocks.

If Gove wanted to make a public interest argument against disclosure of free school applicants, real evidence of personal attacks and what sound like potential illegal sackings of teachers would be gold. The thrust of Gove’s letter is that a legal and legitimate policy is being undermined by unfair and possibly illegal activities that will be exacerbated by the disclosure of the applicants. I have no evidence that Gove and his advisers have invented or exaggerated the mischief, but if these cases are real, it is very hard to understand why he is ducking the opportunity to present evidence of them to the Tribunal. It is even harder to understand why there is not currently a huge public effort to get the sacked teachers reinstated, and their tormentors punished. After all, it is not illegal to be involved in a free school, so why would Gove tolerate such appalling treatment and what is he doing to stop it, other than whining about nasty Chris Graham?

In a calorific interview with Jan Moir in the Daily Mail, Gove described himself as a Marmite politician. The one time I tried Marmite, I vomited so hard and for so long that I burst blood vessels in my nose, so I think I know what he means. But it does nothing for those who are not his acolytes that he tries to suggest that an independent public servant is somehow opposing or assisting those who oppose government policy merely by doing his job. We already know that whatever Gove used private email for, he didn’t have a sufficiently solid case to test its legitimacy at the Tribunal. We know that his Department has a sufficiently poor record on responding to FOI requests that they’re being subjected to monitoring again by the ICO. There are plenty of issues where Gove and transparency seem to have an unfamiliar relationship: sales of school playing fields, headteacher’s salaries, and his own policies to name three. Even Gove’s online cheerleaders won’t use their real names (whoever actually runs the @toryeducation Twitter account, they are oddly ashamed of being associated with it in public).

The important thing about Gove’s letter is that shows that posturing and insults are no substitute for the rigour that FOI refusals require. The argument that the public have a right to know who wants to run schools in England is a solid and obvious one to make, and if Gove and his adjutants don’t have anything sufficiently concrete to counter it, then they have to accept defeat and move on. The letter simply shows that Gove has nothing else – on this issue at least – but bluster. It doesn’t matter what his letter says or what bad faith it attributes to others. On the matter of FOI principle, the Secretary of State has come up empty.

The other important thing to note about Gove’s battles with FOI is the legacy he has left for those who follow him. As I said at the start, the same people that are allegedly trying to get around FOI originally found it valuable. By relentlessly exposing the Information Commissioner’s lack of appetite for taking on recalcitrant Government departments, Gove has taught the Labour Party a valuable lesson for the next time they are in power. The Information Commissioner will not take enforcement action against Gove’s department despite endless justification. I believe that the DfE are unable or unwilling to comply with a legal demand to get their FOI house in order, and issuing an Enforcement Notice would inevitably result in a confrontation the ICO does not have the stomach for. Chris Graham is the most effective Information Commissioner so far and he is a very smart communicator but his office seems to struggle with properly enforcing FOI and Gove has proved it. One day, the coalition’s successors will lose an election (they didn’t win the last one), and once again, they will want to use FOI for wholly legitimate campaigning activities. However much Labour might now be trying to argue the case for FOI, they brought it in and then their Leader spurned it. Gove’s disdain for FOI may end up pulling up the ladder the next time his party needs it.

Filed under: Christopher Graham, FOI, Michael Gove, Uncategorized Tagged: FOI, Gove, SpAds

Court of Appeal gives judgment on credit reference agencies and accuracy of personal data

2013-02-20T22:45:54+00:00

The fourth data protection principle requires that “personal data shall be accurate and, where necessary, kept up to date”. It does not, however “impose an absolute and unqualified obligation on [data controllers] to ensure the entire accuracy of the data they maintain. Questions of reasonableness arise in the application of the fourth principle, as paragraph 7 of Part II of Schedule I spells out.” This statement by Davis LJ (at para. 80) encapsulates the case of Smeaton v Equifax plc [2013] EWCA Civ 108, in which the Court of Appeal handed down judgment today.

Equifax is a well-known credit reference agency. Between 22 May 2002 and 17 July 2006 Equifax included in its credit file concerning the Respondent, Mr Smeaton, an entry to the effect that he was subject to a bankruptcy order. This was incorrect – that order had been rescinded in 2002.

He was subsequently declined a business loan, with serious detrimental consequences for that business. He brought a claim against Equifax for those business losses and “other losses and distress consequent upon his descent into a chaotic lifestyle”.

Initially, his cause of action was defamation. By the time of trial in 2011, it had become (a) a claim under s. 13 of the Data Protection Act 1998, and (b) a parallel common law tort claim.

The judge, HHJ Thornton QC (having substantially amended the first draft of his judgment following submissions at handing down), found that Equifax had breached the fourth data protection principle (as well as the first and the fifth, though he had heard no argument on these points), that it owed Mr Smeaton a parallel duty in tort and that he had suffered losses as a result of these breaches.

The Court of Appeal disagreed in strong terms, Tomlinson LJ saying this at para. 11 about the judge’s approach and conclusions – particularly on causation:

“In retrospect it is I think unfortunate that the judge attempted to resolve the causation issue in principle, divorced from the question what loss could actually be shown to have been caused by the asserted breaches of duty. I have little doubt that Mr Smeaton believes in all sincerity that a good number of the vicissitudes that have befallen him can be laid at the door of Equifax, but a close examination of the relationship between the losses alleged and the breaches of duty found by the judge would perhaps have introduced something in the way of a reality check. Had the judge looked at both issues together he might I think have had a better opportunity to assess the proposition in the round. As it is, the judge’s conclusion that the breaches of duty which he identified caused Mr Smeaton loss in that they prevented Ability Records from obtaining a loan in and after mid-2006 is in my view not just surprising but seriously aberrant. It is without any reliable foundation and completely unsupported, indeed contradicted, by the only evidence on which the judge could properly rely.”

Turning from the facts of the case and the question of causation to the approach to the fourth data protection principle in general, Tomlinson LJ said this at para. 44:

“The judge was also in my view wrong to regard the mere fact that the data had become inaccurate and remained accessible in its inaccurate form for a number of years as amounting to a “clearly established breach of the fourth principle” – judgment paragraph 106. Paragraph 7 of Part II provides that the fourth principle is not, in circumstances where the data accurately records [erroneous] information obtained by the data controller from the data subject or a third party, to be regarded as contravened if the data controller has, putting it broadly, taken reasonable steps to ensure the accuracy of the data. A conclusion as to contravention cannot in such a case be reached without first considering whether reasonable steps have been taken. As the facts of this case show, that may not always be a straightforward enquiry. Perhaps often it will and it may not therefore usually be difficult to establish a contravention. Once it is concluded that reasonable steps were not taken in this regard, a consumer may seek compensation under s.13. It will then be a defence for the data controller to show that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned. It may be that that enquiry is in substance no different from that required under paragraph 7 of Part II in the limited class of case to which that paragraph refers. However it should be noted that in cases not covered by paragraph 7 a contravention may be established without consideration of the reasonableness of the steps taken by the data controller. In such a case reasonableness would arise only if a defence were mounted under s.13(3).”

Tomlinson LJ then summarised the law and relevant legal guidance on credit reference agencies and bankruptcy proceedings. At para. 59, he concluded that:

“The judge’s approach begins with the observation, at paragraph 95 of the judgment, that erroneous or out of date data which remains on a consumer’s credit file can be particularly damaging. Of course this is true, and nothing I say in this judgment is intended to undermine the importance of the fourth data protection principle. But before deciding what is the ambit of the duty cast upon CRAs to ensure the accuracy of their data, it is necessary to put this important principle into context and to maintain a sense of proportion. In the context of lending, arrangements have been put in place to ensure that an applicant for credit should not suffer permanent damage as a result of inaccurate information appearing on his file. As recorded above these safeguards are set out in the Guide to Credit Scoring and are further explained in at least two other published documents…. The judge made no reference to these arrangements which are in my view relevant to the question how onerous a duty should be imposed upon a CRA to ensure that its data is accurate. I agree with Mr Handyside that in most cases of applications for credit failed on account of incorrect data the harm likely to be suffered is temporary inconvenience. It is possible that the judge overlooked this as a result of his flawed conclusion that it was inaccurate data, or more precisely the alleged breach of duty which gave rise thereto, which prevented Mr Smeaton / Ability Records from obtaining credit in and after July 2006.”

He continued at para 62:

“The judge ought in my view to have taken into account that these various publications demonstrate that both the methods by which CRAs collected and updated their data and the shortcomings in those methods were well-known to and understood by the Information Commissioner and the Insolvency Service.”

Tomlinson LJ also concluded (at paras. 67-68) that part of the judge’s conclusions on DPA breach “amounts to a conclusion that Equifax was in breach of the duty required of it under the DPA because it failed to attempt to persuade the Secretary of State and the Insolvency Service to initiate modifications to the legislative and regulatory framework and in particular failed to secure the reversal of the legislative choice made in 1986 no longer to require the automatic advertisement of annulments and rescissions. I do not consider that this is a realistic conclusion. Self-evidently it is not realistic to conclude that an exercise of this sort was either necessary or feasible in relation to a tiny number of cases where the consequences of inaccuracy could not normally be expected to be anything other than temporary inconvenience. A duty the content of which is to lobby for a change in the law must be very uncertain in its ambit and extent and in my view is implausible.”

Finally, not only had the judge erred in his approach to causation and the fourth data protection principle, he was also wrong to find that there was a parallel duty in common law: the House of Lords said in Customs and Excise Commissioners v Barclays Bank [2007] 181 that statutory duties cannot generate parallel common law ones, and on the raditional three-fold test of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty, the answer here would also be ‘no’.

The judgment will be welcomed not only by credit reference agencies, but by all those data controllers whose particular circumstances mean that data inaccuracy is, best efforts notwithstanding, an occupational hazard.

For another blog post on this judgment, see Information Rights and Wrongs, where Jon Baines was quick off the mark.

Robin Hopkins

Decision time at the European Parliament

2013-02-20T21:48:05+00:00

Glancing at a recent news report, I see that, coincidentally, some European Parliamentary Committees are voting on a wide range of amendments to the proposed General Data Protection Regulation at almost the same time that various European regulators are threatening (again) to take action against Google for apparently behaving in an awful manner.

Presumably, these events are not linked.

Presumably, there is no attempt on the part of certain regulators to keep stories about awful overseas-based data controllers in the minds of the public (and their MEPs) at the very time that some MEPs are supposed to be wading through documents stuffed with impenetrable data protection amendments.

If the rules were changed to allow European parliamentarians only to take part in votes on amendments and issues that they understood, I expect that the number of politicians eligible to take part in votes on the Regulation would drop quite substantially.

As it is, I’m sure that lots of amendments will be waved through by people who may not fully appreciate the financial implications of what they are doing.

But never mind.

Perhaps when the Member States have had their say on what the instrument should look like, the text will have radically changed again.

Source:

http://www.irishtimes.com/newspaper/world/2013/0220/1224330264816.html

ICO fires more shots at the Regulation

2013-02-20T21:43:36+00:00

At 82 pages in length, some people will be grateful that theICO has just decided to publish in full its views on the proposed General Data Protection Regulation. Many more people will hope that someone else will read it for them, and produce a note summarising the highlights.

(Top tip – if you can’t stomach all 82 pages, there are a 2 pages of similar stuff elsewhere on the ICO’s website.)

Well, this blog is not a note about any of the highlights.

But it does cast some light into the debate about two of the controversial areas – one of which I suspect that many Data Protection Officers will not have been unduly concerned about. However, the issue still deserves careful thought by Member States. It concerns the structure of the European Data Protection Board. This is evidently what enough members of the Article 29 Working Party are planning to call themselves, although I’ve recently heard that not all members of the Article 29 Working Party could agree on a new name for that august body.

Anyway, the issue concerns the European Data Protection Supervisor, and the role that person has to play in future. As we all know, the EDPSis an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies. He does so by monitoring the EU administration's processing of personal data; advising on policies and legislation that affect privacy; and cooperating with similar authorities to ensure consistent data protection.

And, as we all know, Article 2.2(b) of the proposed Regulation does not apply to the processing of personal data by the Union institutions, bodies, offices and agencies;.

So why should the proposed European Data Protection Board have to include someone who is not tasked with regulating any relevant institutions? The concept is hard for some people to accept.

But, it gets better.

Article 69 of the Regulation provides that: “The European Data Protection Board shall elect a chair and two deputy chairpersons from amongst its members. One deputy chairperson shall be the European Data Protection Supervisor, unless he or she has been elected chair.”

The ICO has commented: “We are not clear how this can provide for an election if one of the deputy chairpersons has to be the EDPS.”

I commend the ICO for its restraint. Others may well protest at the absurdity of a situation where a democratic election may need to be “fixed” to guarantee the election of a regulator who is responsible for institutions that are exempted from the regulation he is supposed to be supervising.

If this is European democracy in action, then I’m a banana.

In the UK, rotten boroughs in Parliamentary elections were abolished in the 19^thCentury. The most notorious borough was Old Sarum in Wiltshire. At one election, the electorate comprised 3 houses and just 7 voters, yet they had the responsibility of electing 2 Members of Parliament. It would be deeply ironic if the Regulation were to effectively propose their reintroduction.

The second controversial area I want to highlight in this blog are the ICO’s very wise comments on Article 63, which provides that: “For the purposes of this Regulation, an enforceable measure of the supervisory authority of one Member State shall be enforced in all Member States concerned.”

In a masterpiece of understatement, the ICO has suggested that: “We need to think through the implications of this degree of harmonisation. It could lead to the prohibition of a processing operation which is acceptable to the citizens of the UK – or – on the other hand – to unacceptable processing being legitimised on the basis of a simple majority vote.”

Just wait until those gentle folk in UKIP get to hear about this one. Other commentators might have preferred to shout “Keep your towels off our lawns.” We Brits don’t mind harmonisation when it makes sense, but we do bristle when we are required to adopt practices that go against the grain of our culture and national identity.

Sources:

http://www.edps.europa.eu/EDPSWEB/edps/EDPS

http://en.wikipedia.org/wiki/Rotten_and_pocket_boroughs

http://www.ico.gov.uk/news/blog/2013/~/media/documents/library/Data_Protection/Research_and_reports/data_protection_reform_latest_views_from_the_ico.ashx

http://www.ico.gov.uk/news/~/media/documents/library/Data_Protection/Research_and_reports/ico_proposed_dp_regulation_analysis_paper_20130212_pdf.ashx

Letters: Remove the gag on whistleblowers

2013-02-20T20:59:01+00:00

Your editorial (18 February) rightly asserts that "the genuine whistleblower needs more protection, not restraint". However, you fail to mention that the current enterprise and regulatory reform bill will make it more difficult for workers to disclose information about suspected wrongdoing. International research demonstrates that the two main reasons why people choose not to report concerns are fear of retaliation and a belief that no remedial action would be taken if malpractice was established.

Our existing legislation focuses solely on whistleblowers and their possible motives. If we are serious about wanting to encourage disclosures in the public interest we need to oblige employers to have whistleblowing procedures and require recipients of concerns to investigate their merits.
Professor David Lewis
Convenor, International Whistleblowing Research Network, Middlesex University

• The article on government plans to review the Public Interest Disclosure Act (Pida) 1998 (Report, 16 February), in the wake of the Mid Staffs scandal, is a classic example of "joined-up thinking" in this shameful coalition. It is to be carried out by Jo Swinson, employment relations minister – the same minister, in the same department, that in August 2013 will introduce charges for workers to take a case to an employment tribunal.

As more than two thirds of "whistleblowers" are sacked by their employer, many of whom are low paid, I wonder how tightening up Pida will make it more likely that decent, honest people will come forward to report wrong-doing. Even if they do take their case to tribunal and win (only one in 5 cases are successful), the compensation is also to be "capped" at a year's pay. Would you "whistleblow" in these circumstances?
Alex Knutsen
Unison, Brighton

• Richard Drax MP is right to describe the gagging of the head of the Maritime and Coastguard Agency as "almost Orwellian" (Coastguard chief 'gagged by ministers' MP claims, 20 February). Perhaps this is a good time to examine the way in which the fundamental democratic right of freedom of speech is being trammelled not just by government, but throughout the land, by authoritarian managers in health, education and elsewhere to avoid litigation about decisions to sack doctors, headteachers and others whose "fault" has been to challenge the decisions of those in authority. They deserve the right to speak and the public the right to know what is going on.
Michael Bassey
Newark, Nottinghamshire

• Termination "agreements" with gagging clauses to dismiss and silence whistleblowers are common and increasing in the NHS and across the public services. Target culture puts league table position first, so decent and conscientious staff who raise issues are punished, silenced and removed by managers to cover their own misdeeds in manipulating data outcomes. For self-preservation, other staff then stop caring and just meet their own targets by whatever means: ruthless and uncaring managers with a warm public face are the order of the day. Meanwhile an unknown number who would speak for the public good exist alone, often in great personal suffering, unable to speak of their experiences.
Mark Lewinski
Swaffham Prior, Cambridgeshire

• Barbara Hakin has been reported to the GMC for allegedly bringing improper pressure to bear on medical staff during her spell as CEO for East Midlands Strategic Health Authority. Hakin was informed that the pursuit of A&E waiting time targets, despite the trust's full hospitals, was directly endangering patients' safety. David Nicholson was also reported to have been informed. The informant was duly sacked by the trust, allegedly for swearing. A tribunal claim for unfair dismissal was settled for a sum, accompanied by a gagging clause.

The government's attitude to protecting whistleblowers? Hakin was promoted to managing director for commissioning development at the Department of Health. This is the corporate model of healthcare, where business managers run medical care and gagging clauses abound. It is ministers who appear to have been protecting the relentless decimation of the NHS. It's this that needs to change.
Dr Nick Mann
London

Michael Gove in clash over free schools freedom of information requests

2013-02-20T13:58:00+00:00

Information commissioner clashes with Gove over public's right to know details of groups who applied to join free schools programme

The information commissioner, Christopher Graham, and Michael Gove have clashed over the public's right to know the names, places and religious affiliation, if any, of all the groups who have applied to join the government's controversial free schools programme.

The education secretary appeared to suggest that Graham was effectively helping opponents of the taxpayer-funded schools, which are independent of local authorities, to intimidate applicants – prompting Graham to retort that the arguments of Gove's department in resisting public disclosure "clearly failed to convince".

The steely exchange came as Gove reluctantly released details of 517 applications made for the first three waves of free schools after losing a tribunal ruling last month. Announcing he would no longer challenge the commissioner's decision, Gove claimed parents and teachers trying to join the government's programme had been vilified by opponents and even lost their jobs, even without full details of applications.

His department had until now fought rulings by Graham on applications from the British Humanist Association (BHA), and appealed to a tribunal on the issue "because we wanted to protect public-spirited volunteers from intimidation".

He said ministers had heard of instances where teachers had been hounded out of their existing schools by supporting an application and one proposer had told them of a death threat.

Gove said his programme helped people "who want something better for their children and community". He ended his hostile concession by saying: "I would defend, to the death, the right of anyone to oppose government policy. I do not believe, however, that it is right to facilitate the targeted intimidation of brave people acting on noble motives."

Graham wrote back: "While I note your strongly held views, strongly expressed, I will only observe that both the commissioner and the tribunal have taken careful account of all relevant factors in arriving at a balanced judgment as to where the public interest lies. Your department's arguments clearly failed to convince. I note that you chose not to exercise your right of further appeal to the upper tribunal."

Graham added that he did "not for a moment" accept that publication facilitated intimidation. "I will join you in defending the right of anyone to oppose (or support) government policy. But I will also defend the operation of the Freedom of Information Act in the public interest."

Graham's office recently put Gove's department on a special monitoring list because it was among public organisations dragging its heels in responding to freedom of information requests.

Richy Thompson, faith schools campaigner at the BHA, said: "We believe that the previous lack of transparency in this area represented a democratic deficit, with the public being unable to know who was applying to set up schools with state funds until after those schools have already been backed by the government to open. Hopefully, that should now change."

James Meikle

Application of the DPA to surveillance activities

2013-02-20T11:57:33+00:00

By Julian Milford

The First-Tier Tribunal (“FTT”) has just issued the first ever tribunal decision concerning the application of the Data Protection Act 1998 (“DPA”) to surveillance activities: Southampton City Council v The Information Commissioner EA/2012/0171, 19 February 2013. In this case, the Council’s licensing committee had resolved in 2009 that all taxis it licensed should be fitted with digital cameras, which made a continuous audio-visual recording of passengers. The Information Commissioner (“ICO”) issued an enforcement notice against the Council under the DPA, requiring the Council to stop audio recording, because it was in breach of the Data Protection Principles in the Act (the first Data Protection Principle in particular).

The Council appealed to the FTT. It accepted that words recorded by the equipment were “personal data” for the purposes of the DPA, and the very act of recording was a form of “processing” by the Council under the Act. What the Council disputed was (1) the conclusion that the policy involved the processing of “sensitive personal data” as well as personal data; and (2) the ICO’s finding that the recording and retention of audio data was a disproportionate interference with passengers’ privacy rights under Article 8 of the European Convention.

On both points, the FTT found in favour of the ICO. The FTT said that it was “unrealistic” to contend that the policy did not involve the processing of “sensitive personal data”: taxi users would undoubtedly from time to time discuss their own and others’ sex lives, health, politics and so on. The FTT also agreed with the ICO that although the processing served the legitimate aims of promoting public safety, preventing crime, and protecting persons, it was not proportionate. The FTT observed that there were two important points to note. First, the legitimate aim could only be directed at “taxi-related” crime: the fact that police had been able to obtain useful evidence about other crimes could not therefore come into the balance as a benefit. Secondly, the relevant benefits and disbenefits were only the marginal ones coming from audio recording, because no complaint was made about CCTV in taxis. Against that background, the policy’s significant interference with privacy rights outweighed any resulting benefits. The FTT was particularly impressed by arguments about “function creep” i.e. the use of the system for other purposes by (say) the police; and by the danger that someone would access and make improper use of the very extensive recorded information. Finally, the FTT said that the ICO was entitled to serve an enforcement notice, given the high public importance of the case.

Plainly, this is a significant decision, whose principles can be read across to a range of surveillance activities carried out by public bodies.

Timothy Pitt-Payne QC and Anya Proops of 11KBW appeared for Southampton City Council and the ICO respectively.

Data Protection Code of Practice for the Press raises the prospect of enhanced protection for ordinary data subjects.

2013-02-20T11:46:03+00:00

Five days ago, the Conservatives outlined their plans for implementing the Leveson Recommendations (the â??Recommendationsâ??) by creating an independent panel, established by Royal Charter, to verify that any new press regulator is effective. Yesterday, the Information Commissioner put a spanner in these works; he has published outline plans for his own voluntary Code of Practice and is consulting on its possible content.

This blog explains why an ICO Code of Practice, if eventually published, could help aggrieved data subjects, and why I expect it to beÂ opposed by the press.

Both Labour and the Liberal Democrats disagree with the Mr. Cameronâ??s preferred voluntary system of press regulation. Many MPs from these Parties want a statutory underpinning of the regulatory structure by statute whilst the Prime Minister believes that this could threaten the freedom of the press. The ICOâ??s Code of Practice would beÂ aÂ voluntary Code; there is no statutory underpinning of the Code but, as will be seen, any future Parliament could decide to underpin.

The press and also many MPs continue to (deliberately) conflate statutory regulation of the press (e.g. as in full state control) with statutory underpinning of the regulatory regime that applies to the press (e.g.Â because many argue that the old voluntary system of regulation has palpably failed). The ICOâ??s Code of Practice, if there were to be a failing of the press to comply with a decision of anyÂ non-statutoryÂ press regulator could therefore come into play. To some extent theÂ ICO'sÂ Code would therefore create a fall-back position for aggrieved data subjects.Â

Readers of the blog already know that I think you can have statutory underpinning of the Recommendations via very modest changes to the definition of â??Special Purposesâ?? under the Data Protection Act (see references). The advantage of my approach is that you do not change the balance between press freedom and privacy that the press has readily accepted since 1998.

The ICO's approach in his outline voluntary Code of Practice similarly does not disturb this balance. So it is interesting to speculate how such a Code of Practice could work for the press, even assuming no change to the Section 32 exemption.

As is well known, this Section 32 exemption is pretty wide: it includes all the Data ProtectionÂ Principles except the Seventh Principle (dealing with security), the right of access and objection. This exemption applies so long as the press-related data controller believes that the special importance of the public interest in freedom of expression is served by the processing of personal data, and that the processing of such data is with a view to publication.

Section 32(3) states that when considering whether â??the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practiceâ??. Clearly any Code of Practice that concerns the press, produced by the ICO, is going to be highly relevant to the publication in question.

So this explains one reasonÂ why the ICO is thinking of producing a Code of Practice; the existing DPA provides that one can be created and the Press Complaints Commission (PCC)Â Code is set to disappear. A second reason is that the ICO was expressly criticised in Leveson for not using his enforcement powers against the press;Â a Code of Practice is the current Commissioner's response to that criticism. A third reason is that the ICO's Code is likely to exist well before the new regulatory framework is established; in this way, the ICO can influence events.

However, there is a sting in the tail here. If the eventual ICO Code is designated by the Secretary of State (as is the currentÂ PCC CodeÂ of Practice: by SI 2000 No. 1864) then, in theory, serious non-compliance with the Code is likely to bring enforcement action by the ICO beyond that of any new press regulator.

Of course, the current Secretary of State might not designate the ICO'sÂ Code, but it only needs one future Secretary of State to designate the Code, then it becomes an important component of the press regulatory regime.

The ICOâ??sÂ Code has picked up the approach used by Mr Jay during the cross examination of the current and previous Commissioners at Leveson. Mr Jay employed a simple argument to state that the Section 32 exemption did not apply in many circumstances; his argumentÂ goes as follows:

Does the Section 32 exemption apply to any personal data processed by the press with â??a view to publicationâ??? Answer â??yesâ??.
When the press obtains an ex-directory number (for hacking purposes), is it likely that the press would publish the ex-directory number? Answer, of course, â??noâ??.
It follows that with regards to ex-directory numbers, there is no â??view to publicationâ?? of personal data and so the Section 32 exemption does not apply.

Now, if you expand Mr Jay's line of argument, you can understand the implication of the questions posed by the ICOÂ in the chapter in the proposed Code which focuses on the section 32 exemption. These questions (followed by my comments) are as follows:

When does the exemption apply? (Comment: here the ICO is implying that the exemption does not apply to some processing of personal data by the Press);
Where section 32 does apply, what rights and obligations flow from the Data Protection Act? (Comment: here the ICO is saying that data subject rights and all Principles can apply to some personal data processed by the Press);
Are there minimum standards of good practice which apply to the handling of personal data in all cases? (Comment: here the ICO might have fair and lawful obtaining in mind);
When is personal data processed only for the special purpose of journalism? (Comment: here the ICO is implying that personal data such as contact telephone numbers may not be processed for the special purpose of journalism);
When is processing undertaken with a view to publication of any journalistic material? (Comment: here the ICO is implying that personal data that do not have a view to publication cannot claim the exemption);
When is it reasonable to believe that publication would be in the public interest? (Comment: here the ICO is implying that personal data that are processed not for a public interest purpose cannot claim the protection of the S.32 exemption)
When is it reasonable to believe that compliance with a relevant provision of the Data Protection Act would be incompatible with the special purpose of journalism? (Comment: here the ICO is implying that fair processing practices are often compatibleÂ with the special purpose of journalism so no exemption is needed)
What role can other codes of practice play when considering the above? (Comment; the Privacy Notice Code and perhaps Codes in connection with surveillance or telephone monitoring come into mind).

It is worth noting that the ICOâ??s proposed Code would make an explicit reference to the Human Rights Act and its role in defining the â??relationship between data protection and freedom of expression, demonstrating how the two concepts co-exist; and explaining why high standards of information-handling are not inconsistent with the freedom of the pressâ??. This means that unlawful processing (and the link with Article 8 and all the case-law in this area) is very strongly in play (see references).

For this reason, in particular,Â I suspect the press will oppose the Commissionerâ??s Code and will try to discredit it. However, they may find it hard to do because they have accepted the current data protection arrangements since 1998. Any ICO Code is voluntary, and the press are as free to ignore the ICO Code as it has its own PCC Code. In addition, if designation of the PCCâ??s own Code of Practice a decade ago was not opposed by the Press, why should the ICO one be opposed?

Finally, Leveson was adamant that the data protection regime should be strengthened; any taking away of the Code of Practice provisions in Section 32 would signal the Governmentâ??s intent to further weaken the Leveson Recommendations.

The idea of a Code based on data protection can work; so get engaged in the consultation.

References:

Leveson Principles underpinned in 133 words of legislation: no need for an extensiveÂ law. http://amberhawk.typepad.com/amberhawk/2012/12/leveson-principles-underpinned-in-133-words-of-legislation-no-need-for-an-extensive-law.html

The linking of data protection and human rights regime: see Information Commissionerâ??s enforcement proceedings links Article 8 to unlawful processing: http://amberhawk.typepad.com/amberhawk/2012/11/information-commissioners-enforcement-proceedings-links-article-8-to-unlawful-processing.html

Download the ICOâ??s document about the Press Code of Practice here: Download BLOG_Press Code outline Feb 2013

Could Wikeley make FOI changes less likely?

2013-02-20T10:22:15+00:00

The following post by saveFOI co-founder Paul Gibbons, a.k.a “FOIMan”, first appeared on his blog http://www.foiman.com/ and is reproduced here with his permission and our thanks.

Recent rulings by the Information Tribunal relating to vexatious requests could be a better answer to Government concerns over FOI than changes being mooted by the Ministry of Justice. At a briefing earlier today, Maurice Frankel of the Campaign for Freedom of Information argued that the Government’s proposals would be highly damaging to FOI and what’s more, were no longer necessary.

Maurice highlighted the Government’s intentions set out in the Ministry of Justice’s response to the post-legislative scrutiny carried out by the Justice Select Committee, and recently clarified by one Minister at a poorly attended Parliamentary debate. The key changes being looked at by the Ministry of Justice appear to be:

reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
allowing public authorities to include consideration time in the assessment of this limit;
allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
charging for appeals to the Information Tribunal (First Tier and Upper).

Maurice described these proposals as the most damaging yet. Some of them are, however, very familiar. The inclusion of consideration time and aggregation proposals was consulted on in 2006/7 under Tony Blair, and dropped at the instigation of his successor. Could it be that civil servants have merely dusted off the old proposals to save themselves some time?

In any case, it may be that these proposals are now redundant. The Government’s main aim in introducing these changes appears to be to address situations in which requests are expensive to answer, but can’t, for technical reasons, be refused under the “acceptable limit” rules. But here’s where recent decisions of the Tribunal – at both levels – come in.

Last year I wrote about an important decision of the First Tier Tribunal which suggested that public authorities could refuse FOI requests under section 14 of the Act – the section dealing with vexatious requests – in a much wider set of circumstances than the Information Commissioner’s guidance had led us to believe. In particular, the Tribunal ruling offered the tantalising (for FOI Officers at least) possibility that requests could be refused under section 14 if they imposed a significant burden on the authority, even if there was no other reason to suggest the requests were vexatious.

Since then, a number of First Tier Tribunals have taken a similar line. However, strictly, decisions of the Information Commissioner or of the First Tier Tribunal cannot set precedents in the common law of England and Wales. This means that in theory at least, there is no legal reason why their decisions have to be consistent. But rulings of the Upper Tribunal and higher courts do set precedent. And we now have such a ruling in respect of vexatious requests.

The new ruling, from Judge Wikeley, appears to support the more common sense approach that the other Tribunals have moved towards. It doesn’t entirely dismiss the Information Commissioner’s established checklist approach, describing it as a useful guide, but favours a more “holistic” consideration of whether a request is vexatious or not.

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

The problem with the Government’s proposals is that they threaten to reduce the effectiveness of FOI for everyone. The inclusion of consideration time is likely to significantly reduce the amount of information that can be asked for, no matter what the public interest in disclosure. Similarly, if a journalist has to make a series of follow-up requests to get to the bottom of a legitimate story, he or she will soon use up the time allowed if the new aggregation rule is brought in. Indeed, they may prevent any of their colleagues being able to ask questions of the same authority within three months.

But the Tribunals’ approach offers a more nuanced answer to the problem of the excessive burden imposed by some FOI requests. It allows public authorities to refuse requests that are expensive to answer or are manifestly unreasonable, whilst encouraging them to consider carefully the wider context of the requests. That approach seems much more in line with the value that the Ministry of Justice claims to recognise in FOI, whilst meeting their stated concerns.

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

Could Wikeley make FOI changes less likely?

2013-02-18T20:44:17+00:00

reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
allowing public authorities to include consideration time in the assessment of this limit;
allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
charging for appeals to the Information Tribunal (First Tier and Upper).

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

BPI set to block three more BitTorrent sites

2013-02-18T17:52:00+00:00

(Blog) The British Phonographic Industry (BPI) will ask the UK's six biggest Internet Service Providers (ISPs) to block three more sites accused of piracy at a court hearing tomorrow. (UPDATED)

Journalistic sources and the law: blowing the whistle on truth-tellers | Editorial

2013-02-17T19:50:31+00:00

Police forces, hospitals and others must be open to scrutiny, giving genuine whistleblowers protection rather than restraint

When this newspaper spent two years uncovering the phone-hacking scandal at the News of the World, we were faced with a particularly powerful obstacle in the shape of the senior ranks of the Metropolitan police who repeatedly told the press, public and parliament that our stories were wrong. The then commissioner, Sir Paul Stephenson, and his assistant commissioner, John Yates, separately visited the Guardian's offices with their director of communications, Dick Fedorcio, for private meetings where they repeated this line. Following our final success in exposing the core of the scandal, all three men resigned, and witnesses from the Met police went on to tell a very different tale in evidence to parliamentary committees and the Leveson inquiry.

It is fair to say that the Guardian finally uncovered the facts only because our sources included other serving officers who came to the conclusion that their bosses were wrong and that the truth needed to be told. With great discretion, they assisted our inquiry. These officers asked for no money and no favour. They received none. They were not irresponsible nor malicious. They simply made the judgment that the public needed to be told the truth. They blew the whistle.

In this light, it is ironic – to put it at its lowest – that the senior ranks of the Met and other forces have taken advantage of the phone-hacking affair to try to make it more difficult for their officers to work with journalists to disclose information which is being concealed to the detriment of the public interest. In September 2011, only two months after the scandal finally came to a climax, the Met attempted to use the Official Secrets Act to force two Guardian reporters to hand over notebooks and computer records in order to identify sources who had assisted our investigation of phone hacking. In the face of widespread protest, they retreated. However, they persisted in their wider effort.

Last week saw a sign of their success when the Home Office accepted police arguments that the 1984 Police and Criminal Evidence Act should be amended in two ways: to make it easier for them to seize journalists' notebooks and computer records; and to make it more difficult for journalists to conceal the identity of confidential sources. The Home Office is putting these proposals out for consultation.

Yet during this same week, the general vulnerability of whistleblowers has been underlined again by the experience of Gary Walker, the former chief executive of the United Lincolnshire NHS trust. His attempts to bring to public attention a history of alleged mismanagement leading to the deaths of patients were met with a fierce response from the trust's lawyers that, if he dared to speak out, he would have to repay the sum he had received when he was dismissed by them – a dismissal, he says, which flowed directly from his internal efforts to address the problems which were threatening patient safety. Having spent £100,000 on legal fees to challenge his dismissal, Mr Walker saw the prospect of also losing his compensation payment as effectively a threat to ruin him. Nevertheless, he spoke out.

While the health secretary has made sympathetic noises in the wake of the Walker case, there is clearly a much broader – and important – distinction between the employee who discloses information in the public interest and the crude leaker who wants cash reward or who interferes with the required function of his or her organisation. It is a distinction which appears to have been lost, not only by senior police officers in their lobbying and in some recent arrests but also by government.

Democracy cannot work when secrecy exceeds its proper limits. The press cannot work when important information is suppressed. It is not enough to allow the leadership of any organisation to exercise unchallenged control of the facts which it discloses. Hospitals, banks, corporations, meat producers and police forces alike must be open to scrutiny. The genuine whistleblower needs more protection, not more restraint.

Drunkenness cases on nuclear subs

2013-02-15T08:40:03+00:00

How serious is the problem of drunkenness and indiscipline within the Royal Navy's submarine service?

Figures obtained by the BBC show that there have been more than 300 disciplinary incidents in the past three years on the navy's 13 submarines, including 42 cases of misconduct or unfitness through alcohol or drugs.

The list of disciplinary offences, provided following a freedom of information request, itemises 13 instances of misconduct or unfitness due to alcohol or drugs on the four Trident submarines, which carry nuclear weapons as the nation's nuclear deterrent.

It also details eight drink or drug related incidents on HMS Astute, the submarine on which a junior rating shot dead an officer in April 2011 after binge drinking while on shore leave. All eight cases occurred after this shooting.

An inquest last month into the death of Lt Cdr Ian Molyneux focused attention on what was described as a culture of excessive drinking among the submarine's personnel.

The inquest was told that Able Seaman Ryan Donovan had drunk more than 20 pints of cider and lager over two days before the attack, in which he also shot and injured another officer while the submarine was docked in Southampton.

Police investigating the murder were so alarmed about heavy drinking by the crew while ashore that the senior officer wrote to Hampshire's Chief Constable to highlight the issue and the warning was passed to military authorities.

The coroner Keith Wiseman said a culture of drinking to excess had to stop, and recommended that a system of random alcohol testing for crew should be introduced.

The Royal Navy has tightened its rules on alcohol consumption before duty. "We take all disciplinary offences seriously," a navy spokesman said.

"Although alcohol is available on board Royal Navy ships and submarines, its consumption is extremely limited and the RN's promotion of healthy living, coupled with the professionalism of modern sailors, means that fewer sailors drink at sea than ever before," he added.

"This is particularly true of the submarine service due to the demands of operating the boat and the restrictions of working a continuous six-hour watch routine."

Submarines: numbers of offences

2010

2011

2012

HMS Astute

HMS Ambush

HMS Talent

HMS Tireless

HMS Torbay

HMS Trafalgar

HMS Trenchant

HMS Triumph

HMS Turbulent

HMS Vanguard

HMS Vengeance

HMS Victorious

HMS Vigilant

Total

107

106

Total offences 2010-12

311

Figures based on incidents involving service personnel on submarines

The most common form of misconduct within the submarine service is going absent without leave, which accounts for about half the incidents.

Alcohol and drug related misbehaviour is the next most frequent issue. According to the Ministry of Defence, these cases mainly involve alcohol rather than drugs.

Those involved are generally punished by a mixture of fines, restriction of privileges and stopping of shore leave.

The navy provided the BBC with details of 311 disciplinary incidents since January 2010 involving service personnel serving on submarines. This covers the 13 submarines in the service, but it can be difficult to contrast the disciplinary records of the various vessels without knowing their schedules and extent of times at sea.

The four Trident submarines are the V-class ones, Vanguard, Victorious, Vigilant and Vengeance.

Former regulators as lobbyists and consultants – a good idea or not?

2013-02-14T18:59:45+00:00

I understand that the European Ombudsman has just launched a formal investigation into allegations that the European Commission is failing to clamp down on conflicts of interest amongst staff who leave the EU executive to take up jobs as lobbyists and consultants.

An original complaint was filed to the Ombudsman in October last year by NGOs Corporate Europe Observatory, Greenpeace, Lobbycontrol and Spinwatch, claiming that the Commission is unwittingly allowing private interests undue influence in public policymaking.

The Ombudsman is due to launch a formal investigation, and will seek previously undisclosed details of all cases in the last three years where Commission staff have left to take up jobs in the private sector where conflicts may occur.

I think the Ombudsman needs to tread carefully. These people can be of considerable value once they have left their previous post, as they can often offer information which, thanks to a defective communications strategy, was missed even by those who try to follow relevant developments very closely.

Let’s hope the investigation isn’t widened so that it includes former members of Data Protection Authorities too.

I’ve frequently found their advice and instincts to be extremely astute. They certainly help a data controller understand the likely concerns that a Commissioner will have. I say that it would not necessarily help matters if attempts were made to muzzle them for a fixed period after leaving their former posts.

Source:

http://www.euractiv.com/future-eu/eu-ombudsman-puts-revolving-door-news-517795?utm_source=EurActiv%20Newsletter&utm_campaign=223baf3eb4-newsletter_daily_update&utm_medium=email

Image credit:

http://www.core.org.cn/NR/rdonlyres/E60B8B88-E62D-4819-B2BB-3BD4D746F30D/0/chp_shadow.jpg

Update on my Tribunal hearing re data protection infraction letters

2013-02-14T15:10:17+00:00

IÂ have had a several inquiries as to how my Tribunal appearance went (seeÂ blog of 6th Feb for details of the subject matter of these proceedings)

Well I was hoping to do a full blog, but Monday's hearing was adjourned and we might have toÂ lock horns at a later stage.

Reading the runes, the MoJ was cross examined for more than 2 hrs in closed session (more than twice as long as timetabled) after which I was told that I may receive something called â??non-disputed informationâ?? and parts of an email from the European Commission.

I have no idea what this means in practice or indeed whether the MoJ will release anything; at the hearing it was clear that the MoJ was adamant that it does not want to release anything at all.

It alsoÂ emerged at the open session of the Tribunal that the MoJ invited the European Commission to write a letter to the MoJ expressing its objections to the release of the letters I had requested. The MoJ then gave the Commission's letter as evidence that the MoJ should not release the information to me! I am sure that the MoJ would put a different gloss on the Commission's manufacturedÂ evidence, but that is how I see it.

I hope to do a complete report as part ofÂ our Update session in April 15th. Those wanting to know about the Regulation itself, we are doing a half day afternoon session on the Regulation on March 18thÂ .

Throughout the whole process which commenced in 2005, I have made mistake after mistake (some of which I am kicking myself about). I hope to do a blog identifying these mistakes so people donâ??t follow me into some unnecessary holes.

Anyway, may thanks for your support - especially to the person who turned up!

Details of Update andÂ Regulation half day can be foundÂ linked on the followingÂ page of the Amberhawk website: http://www.amberhawk.com/bookevents.aspÂ

Will MEPs sell out your privacy rights?

2013-02-14T12:18:00+00:00

(Blog) There's a huge battle for our privacy and data protection rights in the European Parliament. We need your help.

Lobbyists: who pays the piper…

2013-02-14T09:10:18+00:00

A few weeks ago I experienced first hand the role of lobbyists, when I saw them do their best to start steering the CREATe project in their own direction (see my blog here). In the time since then, two more issues have come up that have highlighted their significance – and why we need to be concerned. We should be looking much more carefully at their activities.

Copyright lobbyists

To recap, at CREATe it was the lobbyists for the ‘content’ industry – what might loosely be called ‘copyright’ lobbyists – who were trying to ensure that the project, which is amongst other things looking at copyright reform, did not dare to challenge their assumption that ‘piracy’ needs to be stomped on above all things. The copyright lobby is a very powerful one indeed, and has had huge influence on the policies of governments worldwide – in the UK, they still seem to have a firm grip on all the major parties, and were the key behind the controversial Digital Economy Act. They are, however, only one of the lobby groups that we should be watching.

Advertising industry lobbyists

The second emerging issue concerns another key lobby – the online advertising industry. For privacy advocates like me, the advertising industry as often been a bit of a bête noire – behavioural advertising in particular generally works through significant invasions of privacy – but their recent activities in relation to the ‘Do Not Track’ initiative have been concerning. They’ve been fighting tooth and nail to block Microsoft’s idea that DNT should be ‘on’ by default on Internet Explorer – and according to Alexander Hanff they’ve also managed to co-opt privacy advocates to help undermine the DNT specification itself, allowing for ‘de-identified’ tracking without any kind of consent.

There’s a long way to go on this one, but I’m far from alone in thinking that they’ll manage to pretty much entirely neuter DNT. As security expert Nadim Kobeissi put it in a blog post yesterday, DNT is becoming ‘Dangerous and Ineffective’. We can largely thank advertising industry lobbyists for that.

‘Internet Industry’ Lobbyists

The third and potentially most worrying of all the recent lobbyists activities to emerge is the story of US ‘internet industry’ lobbyists working to undermine the draft Data Protection Regulations. As the Telegraph reported:

“Tory MEPs ‘copy and paste Amazon and Google lobbyist text’”

As I also experienced first hand at the Computers, Privacy and Data Protection conference in Brussels earlier this month, industry lobbyists particularly from the US are very concerned by the proposed Data Protection Regulation, partly because as drafted it would allow them to have the power to actually fine industry groups a meaningful amount of money – 2% of their global turnover – the kind of fine that would actually make a difference, and could actually make them change their activities.

Making changes….

That’s the key – indeed, the key for all three of the lobbying stories above. A resistance to change. The copyright lobbyists don’t want to have to change either their business model or their approach to enforcement. The advertising industry don’t want to have to change their privacy-invasive way of tracking people. The ‘internet industry’ companies don’t want to have to change their way of gathering and using people’s personal data. And in all three cases, they don’t seem to really care what people want or care about. In the copyright lobbyists example, as I noted in my blog at the time, they seem to be resisting even the gathering of evidence. In the other two cases, I suspect the same is true – because the more evidence that comes out, the clearer it is that people do care about privacy and don’t want to be tracked.

It’s not US vs EU

One of the most common arguments made in these cases is that it’s some kind of a Transatlantic conflict – a ‘cultural difference’ between the US and the EU. We in Europe are trying to ‘impose’ our values onto the US. Is it true? Well, the most recent evidence suggests otherwise – indeed, it suggests that people in the US care every bit as much as people in Europe do about privacy. According to a recent survey, 77% of Americans would select ‘do not track’ if it were available – putting them above many European countries, below only France. As David Meyer put it: ‘Think Europeans are more into data privacy than Americans? Think again.”

I suspect he’s right – and the divide isn’t a Transatlantic one. It’s a divide between individuals everywhere and the industry lobbyists. Lobbyists, by their nature, look out for those they’re lobbying on behalf of. Of course they do – that’s their job. We need to understand that – and act appropriately. What the lobbyists do should worry us – because they don’t serve our interests. Who pays the piper calls the tune – and it’s not us!

That’s not to say that they don’t have legitimate interests – they do! What the industries they represent do is crucial for all of us, for the future of the internet. However, it does need to be balanced, and right now it looks very much out of balance.

Vietnam suppresses its bloggers with long jail terms after unfair trials

2013-02-13T18:30:07+00:00

A major report highlighting the plight of bloggers in Vietnam was published today. It reveals that 32 bloggers and netizens are currently in detention and accuses the Vietnamese authorities of routinely subjecting bloggers to arbitrary detention, harassment, intimidation, assaults and violations of fair trial rights.

The 42-page report, entitled Bloggers and netizens behind bars: restrictions on internet freedom in Vietnam, has been produced by the International Federation for Human Rights (FIDH) and its member organisation, the Vietnam Committee on Human Rights (VCHR).

It explains how the Vietnamese government has actively promoted the expansion of internet access in order to support economic development while viewing free access to the net as a potential threat to its political control.

The government has therefore intensified online censorship and restrictions. In December 2012, prime minister Nguyễn Tấn Dũng ordered his security forces to step up the fight against "hostile forces" using the net to "spread propaganda which threatens our national security."

Three months before that, he issued an order to punish criticisms of the communist party and the government, naming three dissident blogs, including the prominent Danlambao (citizens' journalism) blog, which publishes a wide range of news, including those focused on politics and human rights.

The report states that in a series of unfair trials over the past 12 months, 22 bloggers and netizens were sentenced to a total of 133 years in prison and 65 years probationary detention for their online activities.

Seventeen of the people in jail, including three women, were sentenced under a draconian article - article 88 - of the criminal code that carries a maximum penalty of 20 years' imprisonment for the ill-defined offence of "anti-state propaganda."

In one recent trial, on 9 January, 13 people were sentenced to a total of over 100 years in prison for exercising their freedom of expression.

The report also profiles nine bloggers and their peaceful writings on the net. They include the prominent blogger Nguyen Van Hai (aka Dieu Cay) and members of the club of free journalists, whose online writings criticised article 88.

They were detained under that very article and sentenced last September to prison terms of up to 12 years. Although they protested their innocence, the conviction of Dieu Cay and Ta Phong Tan was upheld on appeal.

The report calls on the Vietnamese government to end its escalating assault on freedom of expression and its criminalisation of bloggers and net users.

"Article 88 and other 'national security' provisions of the criminal code fly in the face of Vietnam's obligations under international human rights law," said Souhayr Belhassen, FIDH president.

"Instead of engaging in the futile exercise of gagging the internet, it should immediately end the practice of making speech a crime and overhaul its repressive legal framework to ensure respect and protection of the right to freedom of expression, regardless of medium."

Source: FIDH

Roy Greenslade

Justice Committee hears from Information Commissioner on Government's FOI proposals

2013-02-13T18:03:41+00:00

On 5 February 2013, the Justice Committee held a one-off evidence session on the work of the Information Commissioner's Office. The session provided an opportunity for the Committee to hear the ICO's views on the Government's proposals to make it easier for authorities to FOI refuse requests on costs grounds and revise its policy on use of the ministerial veto.

Q25 Mr Llwyd: Can I ask you about the use of ministerial vetoes, which is again a very important point?...Is it the case in fact that the Government do not seem to be following their own statement of policy or that that statement of policy is actually wrong?

Christopher Graham: I reported to this Committee on 3 September about the ministerial veto activated by the Attorney-General on 31 July in relation to the Iraq minutes...

I was very struck by the Attorney-General scattering the “E” word around—there were a lot of instances of “exception” and “exceptionally” in the notice supporting the certificate. That seems to me to conflict with what was said in Parliament at the time that the law was passed, which was: “The Government considers that the veto should only be used in exceptional circumstances and only following a collective decision of the Cabinet. This policy is in line with the commitment made by the previous administration during the passage of the Freedom of Information Bill that the veto power would only be used in exceptional circumstances, and only then following collective Cabinet agreement.”...

I understood that the veto would be invoked very rarely and I do not think that the Commissioner or the tribunal is suddenly scattering unacceptable decision notices around...

Q26 Mr Llwyd: Following on from that point, my understanding is that the Government will now be reviewing and revising their policy on the veto, including in fact its application in cases which do not involve Cabinet-related information. First, how do you think it should be revised? Secondly, will you be in a position to inform that particular discussion?

Graham Smith: Perhaps that initial reaction suggests that we are not involved at the moment in that particular discussion. There is no legal requirement on the Government to have a veto policy here. They decided themselves that they would have a policy on the exercise of the veto, and I think now they are trying to extricate themselves from having their hands tied by the policy that they came up with, which, as I think you say, was in the context of Cabinet material being envisaged as what would most likely be the subject of the veto. I should say that it was the previous Government we are talking about there.

We have now had two cases—one involving the NHS risk register on the proposed reforms there, and the other one more recently on the Prince of Wales’ correspondence— which do not involve Cabinet discussion. My understanding is that the Government are looking for a policy which can be applied in a wider set of circumstances than perhaps had been originally envisaged.
...
Q29 Rehman Chishti: I have a few questions in relation to costs of compliance. First, what is your view of the Government’s proposals, in their response to our report on post-legislative scrutiny of the Freedom of Information Act, to reduce the costs to public authorities of compliance with freedom of information legislation?

Graham Smith: We are talking here about the proposals for the cost limit, which threatens to remove from the ambit of the Freedom of Information Act considerable numbers of requests, irrespective of their public interest merit. That is very concerning. The Committee, I think, rightly recognising that there were genuine issues of burden, suggested that it might be appropriate to reduce the cost limit marginally, and I think you suggested two hours of search and retrieval time. But the Government’s response said that that is so marginal that it would not have any significant effect. They are also looking at including in the activities that can be taken into account when calculating the cost limit the consideration of the information against the exemptions in the Freedom of Information Act. That is the thing that I think threatens to remove a lot of requests from the ambit of freedom of information.

If the cost limit was both reduced in terms of the actual amount that we are talking about and the amount of time that we are talking about, and these additional activities could be taken into account when calculating the cost limit, then we really would be talking about a significant number of cases being potentially removed from the ambit of freedom of information. But we do not have detail of the Government’s proposals yet. We have not seen any. We have not been asked to comment on or discuss any potential formulae that they might come up with. So at the moment we are just feeling somewhat trepidatious about the situation.
...
Q32 Rehman Chishti: I am grateful for that because you obviously have more information at your fingertips than I have over here. If I may move on to my supplementary, do you accept that there is a phenomenon of “industrial” use of the Act, which is proving overly burdensome to public authorities—perhaps local authorities in particular?

Graham Smith: We recognise that there are some users of the Act who use the rights on a large scale. On occasions, that can be regarded as abuse. We discussed the provisions under the Act for vexatious requests at some length in the post-legislative scrutiny sessions before this Committee. There has just been a very useful and important upper tribunal decision on vexatiousness in this context, which again was released last week, and that will help public authorities and the Commissioner in the application of those provisions.

Where I would disagree with the impression I was getting from some of the Committee’s deliberation is that this “industrial” use is, if you like, ascribed to some journalists, who, in my experience, are on the whole using the Act very effectively. It has to be said that it is through journalists that a number of very important pieces of information in the public interest have been disclosed under the FOI Act which otherwise would have been kept secret, and we have been talking about some of them today in the course of the discussions...

Q33 Rehman Chishti: Sure. I have a final supplementary, if I may. Should fees be charged to requesters who take cases to information tribunals?

Graham Smith: That is very difficult. It would very much change the scheme as it has been introduced...What is relevant is that we have seen, in the last couple of years in particular, much more efficient use by the tribunal of its case management powers so that cases that have no reasonable prospect of success can be the subject of a strike-out application, and we make those applications. The tribunal judges are much more willing to consider those cases very seriously. Whereas in the previous business year we saw about 15% of tribunal appeals being struck out right at the very early stage, so far this year that is running at about 20%. So I think the tribunals themselves are aware of the need to be more efficient and more cost-effective. My own view is that a gateway fee is perhaps a rather blunt instrument in those circumstances, although I can see the attraction in pure cost-saving terms because it would no doubt reduce the number of appeals. Again, it would be arbitrary because it does not necessarily mean that the appeals that are deterred are those without merit, whereas the current strike-out arrangement does address that issue.

The Commissioner was also asked a broader question about public authorities' compliance with Act. In response he told the Committee that the squeeze on his funding could mean the backlog in FOI casework returning:

Q34 Graham Stringer: Can you give us a broad-brush view of the problems, as you perceive them, of getting public bodies to comply with the freedom of information, both in the spirit of the Act and the detail of the Act?

Christopher Graham: We have had considerable success as the Act has settled down in recent years by being quite aggressive about those local authorities that do not comply in a timely way. We have a programme of monitoring. At the moment, we have just four public authorities who are being watched over the first quarter of the year. One of them is the Department for Education. In recent years the list has been much longer than that. As the ICO itself has speeded up its consideration of appeals, that, as we intended, has had a salutary effect on the rest of the public service, and other people have got on with it because they realise that the Information Commissioner will not take years to get on to their case. The whole thing has speeded up very satisfactorily....

Q35 Graham Stringer: Would it be fair to say, going back to your previous answer, that things are improving, but they would improve more quickly if you were able to audit public bodies?

Christopher Graham: Certainly, because we would concentrate our efforts on those organisations. Wirral borough council is on the watch list at the moment. I would really like to send in a good practice squad to Wirral borough council, but I do not have the powers do that. I am not picking on Wirral; it is just an example that comes to mind.

Graham Smith: We came forward with a proposal that, if there were statutory time limits, that would put in more of a kind of framework and help to prevent some of the undesirable practices that we see on some occasions, when either the response to a request is spun out on public interest grounds—they take too long under a public interest test extension—or, without a statutory time limit on an internal review, those can take months and months. There is no obligation to give reasons for exercising a public interest test extension or for how long it takes for an internal review. Again, we can do something about it if the complainant comes to us, but, quite often, they do not come until they ultimately get their response and then we find that it has taken six months. Then we can do something about it by way of a practice recommendation.

Certainly for some public authorities, who do not come to the table with a willingness to comply either with freedom of information requests generally or with specific freedom of information requests which they find, say, politically inconvenient or unhelpful, it gives them the opportunity to kick them into the long grass. We do see evidence of that. Our powers to do something about it are limited, and I think the Act would be stronger if there were statutory time limits. A code of practice is fine, but, by definition, it is a code of practice. While we can take action by way of a practice recommendation for frequent breaches of a code of practice that we have evidence of, it is not the same as an enforcement notice power or a decision notice power where there has been a clear infraction of the Act itself.

Christopher Graham: I noticed in the Westminster Hall debate the other day that the suggestion was made that it takes one to two years or more to get a response. I was not clear whether that was referring to internal reviews, but certainly it does not refer to the Information Commissioner’s Office. Whatever may have happened a long time ago, we are now turning round appeals under the Freedom of Information Act very quickly. I have a couple of troublesome cases that have been with us for months and months, but in 90% of the cases requests are dealt with very promptly.

We do not have a backlog, but I will, if I may, take the opportunity to tell the Committee that the squeeze on grant-in-aid money for freedom of information has been relentless. I said in my memorandum—when I came before you four years ago for approbation or otherwise—that I had resisted the temptation from one of the members of the Committee to say I would only take the job if there were adequate resources for freedom of information. I said, “No, I want to go and have a look.” We have made considerable changes and we have speeded up, but we are now getting to the point where the squeeze on the grant-in-aid is such that I have to hold posts open and am just beginning to see the threat of a backlog returning if we are not careful. We are determined to manage things to make sure that that does not happen, but we are beginning to run out of road because I can only spend grant-in-aid money on freedom of information. I cannot subsidise freedom of information work from the data protection side of the house. It is a very funny way to run a £20 million-organisation. I am cash rich on the data protection side but very cash poor on the freedom of information side.

That has a bad effect. Despite the heroic efforts of my staff, it is beginning to get very difficult, and yet the demand for our services is increasing all the time. The increase in the FOI appeals caseload is 5% up this year to date, in January, it is up in data protection by 7.3%, and it is up on PECR, which is the nuisance text messages, nearly 9%. So we are very busy, but we have this crazy funding system where to save £1 of freedom of information money, which the Ministry of Justice wants me to do, I also have to save £4 of data protection money because of the gearing, when I could well do with spending that.

Nigerian police charge journalists for inciting murders of polio workers

2013-02-12T20:22:54+00:00

Radio journalists charged for allegedly sparking killings blamed on Islamist sect Boko Haram of women administering vaccines

Police in northern Nigeria have arrested and charged three radio journalists for allegedly sparking the killings of at least nine women gunned down while trying to administer polio vaccines, officials said on Tuesday. Police claimed on-air comments about a vaccination campaign in the area inflamed the region and caused the attacks.

The allegations against the journalists working for Wazobia FM illustrate the continuing struggle over free speech in Nigeria, a nation that only came out of military rule in 1999 and where simply taking photographs on the street can get a person arrested. Attacks on journalists remain common and unsolved killings of reporters still haunt the country.

On Friday in Kano, the largest city in Nigeria's largely Muslim north, gunmen in three-wheel taxis attacked women preparing to give the oral-drop vaccines to children, killing at least nine in the assault, police said. Witnesses later said they saw at least 12 dead from the attack.

No group has claimed responsibility for the attack, though suspicion immediately fell on Boko Haram, an Islamist sect waging a campaign of guerrilla shootings and bombings across northern Nigeria. A day later, three North Korean doctors were killed in Potiskum, in Yobe state, also in northern Nigeria, in an attack also blamed on Boko Haram.

A few days before the Kano attack, Wazobia FM aired a programme in which presenters talked about how one of the station's journalists had been attacked by local officials and had his equipment confiscated after coming upon a man who refused to allow his children to be vaccinated. They discussed fears people have about the vaccine.

Ibrahim Idris, Kano state police commissioner, ordered the journalists be arrested immediately after Friday's attack. On Tuesday two journalists remained held by police, while the other had been released on bail, police said.

Initially, Idris said the journalists would face charges of "culpable homicide" over the polio workers' deaths. Those charges can carry the death penalty. However, at an arraignment hearing Tuesday afternoon, prosecutors brought lesser charges against the journalists that included conspiracy, inciting a disturbance and obstruction of a public servant. Magistrate Ibrahim Bello ordered a follow-up hearing on Thursday.

Sanusi Bello Kankarofi, manager of the Wazobia FM station in Kano, could not be reached for comment on Tuesday.

There have long been suspicions about the polio vaccine in northern Nigeria, with people believing the drops would sterilise young girls. In 2003 a Kano doctor heading the Supreme Council for Shariah in Nigeria said the vaccines were "corrupted and tainted by evildoers from America and their western allies".

That led to hundreds of new infections in children across the north, where beggars on locally made wooden skateboards drag their withered legs back and forth in traffic, begging for alms. The 2003 disease outbreak in Nigeria eventually spread throughout the world, even causing infections in Indonesia.

Nigeria is one of only three countries where polio remains endemic, the others being Afghanistan and Pakistan.

Nigeria came out of a long period of military rule in 1999 and has an unbridled free press, but journalists are often harassed by police and the State Security Service, the nation's secret police.

Local journalists also have been attacked and killed in the oil-rich nation over their reporting in the past. Last year alone, two journalists in Nigeria were killed. Eighteen journalists have been killed in Nigeria since 1992, according to the Committee to Protect Journalists

Newspapers and radio stations also often hold off paying journalists their salaries for months at a time. That forces reporters to make money from selling advertising to those they cover or through collecting so-called "brown envelope" bribes slipped into briefing materials at news conferences.

Mohamed Keita, an official with the Committee to Protect Journalists in New York, said his organisation continued to investigate the circumstances surrounding the journalists' prosecution.

"We are troubled by the detentions of journalists insofar as there appears to be no evidence linking their programme to the murderous attacks on the polio clinics," Keita said. "We call on Nigerian authorities to afford the journalists due process under the law."

Smart metering could be of more value to plebs than professionals

2013-02-11T19:01:06+00:00

Who benefits most when utility companies replace existing gas and electric meters with what is becoming known as "smart meters"? These new meters are the next generation of meters, which can offer a range of benefits for both the individual electricity and gas consumer and for the electricity and gas systems in general.

For consumers, I guess the principal issue is whether their introduction will result in financial savings, by reducing consumption of gas and electricity.

The answer, at least from a pilot study carried out in Ireland in 2011, is evidently yes. On average, the saving could amount to 2.9%. Naturally, some people will save more than others. But surprisingly (to me at least), those who are likely to save the most don’t belong to social classes A and B.

According to the report: “Participants with the highest and lowest education and social grade education are least likely to reduce usage. This may reflect motivation (among those with AB social grade) and communication (among those with lower social grades C2 and DE). While efforts were made in the communications strategy to be inclusive, the difference may reflect more fundamental barriers to engagement among those with lower levels of educational achievement.”

Marketing professionals will be aware that social class A contains the upper middle classes (higher managerial administrative or professional people), while class B contains the middle classes (intermediate managerial, administrative or professional people). Such people only saved some €13.27 during the year-long trial. Less than anyone else.

Their savings were trumped by those from social class C1 (the supervisory or clerical and junior managerial, administrative or professional staff), who saved €25.07. They were also trumped by those in social classes D &E (the casual or lowest grade workers, pensioners and others who depend on the welfare state for their income) who saved €18.22. And they were even trumped by the skilled manual workers (the C2 class) who saved €16.42.

So, while I’m expecting that the professional classes will create more of a fuss about ensuring the data protection aspects of any smart metering programme fully comply with any regulation that can be thrown at it, those who may ultimately stand to benefit most from the process will be the plebs, who deserve an equal opportunity to get fully engaged in the relevant data protection debates.

Source:

Smart Metering Information Paper: Gas Customer Behaviour Trial Findings Report CER11180a, published by the Commission for Energy Regulation, October 2011.

http://www.cer.ie/en/about-us-overview.aspx

Media Update - 15th to 31st January 2013

2013-02-11T16:31:01+00:00

Freedom of information laws 'should be extended to private companies' - STV - 31.01.13

Freedom of information laws should be extended to private companies contracted to provide public services, the Scottish Information Commissioner has said. Such a move will ensure accountability and transparency where large sums of tax-payers' money are involved, Rosemary Agnew said.

Placing council services at arms length has weakened Scotland's freedom of information - The Guardian - 30.01.13

The growing use of arms-length management companies and outsourcing agreements by Scotland's local authorities means that fewer and fewer public services are subject to the Freedom of Information (Scotland) Act (FoISA). This loss of rights has been compounded by sustained inaction by successive ministers to fix the problem by extending the Act's coverage, which culminated this month in the Scottish Government's rejection of amendments that would have ensured FoISA returned to the standard intended when passed in 2002.

Ministers consider clampdown on 'industrial users' of Freedom of Information - BBC - 24.01.13

The government is considering how to curb repetitive and overly expensive Freedom of Information requests, justice minister Helen Grant has said. She claimed 'disproportionate burdens' were being imposed by 'industrial users'. In a debate in the House of Commons secondary debating chamber Ms Grant said, "Despite the many benefits that the act has brought, we cannot ignore concerns raised about the burdens that it imposes upon public authorities." But Plaid Cymru MP Elfyn Llwyd said she might be "over-stressing" her case.

Government to make it easier for officials to block FOI requests - The Telegraph - 24.01.13

Ministers want to make it easier for officials to refuse to answer requests from members of the public submitted under the Freedom of Information Act. Justice minister Helen Grant said the Government was looking at stopping "industrial users" who submitted multiple applications. She disclosed that the Government was looking at cutting the amount of time public bodies spend considering applications, which campaigners say will mean that more requests are turned down. The proposed changes have the potential severely to restrict the work of journalists who investigate Government and other public bodies.

Cherie Blair avoids sanctions over £1.3m mews tenant - The Telegraph - 24.01.13

Cherie Blair and her son Euan have escaped court action despite telling an official inquiry they breached planning regulations in respect of a mews house they own jointly in central London. The admission, made on their behalf by an architect, is revealed in documents obtained under the Freedom of Information Act.

Male prison assaults 'rise by a third' in London - BBC - 24.01.13

The number of reported assaults in London's male prisons has risen by a third over the last four years. A freedom of information request to the Ministry of Justice (MoJ) revealed there were 1,950 reported assaults in eight male prisons in 2011, up from 1,463 in 2007. A penal reform group claims a reduction of prison officers is to blame. An MoJ spokesman said: "The rise in the number of assaults in London prisons is mainly due to an increase in the number of prisoners in London." But the figures show London's male prison population grew by just 6% in the time the assaults rose by 33%.

£140,000 cost of using sheep to mow grass in Brighton and Hove - The Argus - 23.01.13

A freedom of information request to Brighton and Hove City Council has revealed that the programme of using sheep for keeping ancient downland and chalkland trimmed has cost more than £140,000 over the last two years. The council had been using grazing animals as a more environmentally friendly way of keeping downland trimmed since 2004. Campaigners have raised concerns about the need to enclose the sheep which is restricting access to historic open spaces with fences and gates.

Number of BBC chiefs earning £100,000 or more rises despite pledge to cut salaries - The Telegraph - 23.01.13

A freedom of information request shows that the BBC now pay 360 staff £100,000 or more. Only 310 employees were in the top tier salary bracket in January 2011. The rise comes despite Lord Patten, chairman of the BBC Trust, having told the Telegraph in July that he would cut the number of senior managers from around 530 to 200 by 2015, to put an end to the "toxic" issue of executive pay.

Ricky Tomlinson calls on government to lift 'veil of secrecy' on Shrewsbury 24 - The Guardian - 20.01.13

Building workers imprisoned in one of the most controversial cases involving trade unionists have been told that documents relating to the case will remain secret for another 10 years. The actor Ricky Tomlinson, who was one of the workers, is calling for the government to lift the "veil of secrecy" over the case and release all the relevant information. In a letter to campaigners Chris Grayling, the justice secretary, said that documents were being withheld under section 23 of the Freedom of Information Act, which relates to safeguarding national security. Mr Tomlinson said his co-workers were convinced that the Tory government of the time had been behind the prosecutions.

Hospitals took three years to do safety checks on NHS doctors and nurses - Mirror - 19.01.13

Doctors and nurses worked in the NHS without proper criminal record checks for as long as three years. Details of the CRB blunder at the Barts Health NHS Trust have emerged in a Freedom of Information report obtained by the Health Service Journal. It shows managers had been warned in October 2009 that procedures used to check the background of staff were inadequate.

Isles of Scilly finance director claimed 'extreme expenses' - BBC - 18.01.13

A senior council officer has defended claiming £18,000 in expenses in the year to April 2012, after the figure was revealed following a Freedom of Information request. The council's finance director admits the amount sounds 'extreme' but says that all claims are legal.

County rapped for keeping Hatfield incinerator emissions details secret - The Herts Advertiser - 17.01.13

The Information Commissioner's Office (ICO) has rebuked Hertfordshire County Council for withholding important information about emissions from an incinerator. In a recent ruling, made in response to request from campaigners under the Freedom of Information Act, the ICO has ordered the council to disclose information. The Council claimed that the information is commercially sensitive and would breach intellectual property rights if released to the public. The local authority has been given until mid-February to comply.

Freedom of Information laws widened by MSPs - Herald Scotland - 17.01.13

People will be given greater access to decisions taken by local authority arm's-length bodies providing cultural and leisure facilities after ministers agreed to extend Freedom of Information laws. Scotland's Deputy First Minister said there would also be a consultation on widening the legislation to cover other arm's-length external organisations established by councils to deliver services on their behalf. The Campaign for Freedom of Information in Scotland welcomed widening the ambit of the legislation but has called for access to be greatly increased, to apply, for example, to companies working on public sector contracts.

London ambulance handover waiting times at A&E 'rising' - BBC - 16.01.13

The number of ambulances waiting more than 30 minutes from arriving at hospital to handing over patients has gone up about 66% in the last year, according to figures obtained by Labour from a Freedom of Information request.

Ministers accused of exploiting royal veto to block embarrassing legislation - The Guardian - 15.01.13

Government ministers have exploited the royal family's secretive power to veto new laws as a way to quell politically embarrassing backbench rebellions, a former MP has claimed. Tam Dalyell, the sponsor of a 1999 parliamentary bill that aimed to give MPs a vote on military action against Saddam Hussein, said he is "incandescent and angry" that it was blocked by the Queen under apparent influence from Tony Blair's government. It also emerged that Harold Wilson used the Queen's power to kill off politically embarrassing bills about Zimbabwe and peerages. Detail about the extent of the Queen and Prince Charles' power to consent to or block new laws are emerging as a result of a freedom of information campaign by a legal scholar.

Britain facilitating mining firms' talks with repressive Eritrean regime - The Guardian - 15.01.13

The Government has been facilitating talks between a range of mining and investment companies and the Eritrean government, whose human rights record is castigated in a Human Rights Watch report that says companies rushing to exploit Eritrea's rich resources risk involvement with widespread exploitation of forced labour by the regime. Details of those who attended a meeting organised by the Foreign Office during a visit by officials from Eritrea were released under the Freedom of Information Act.

NHS trust failed to stop dangerous breast cancer operations - The Guardian - 15.01.13

An NHS Trust was warned in an internal report about the dangers of a controversial breast cancer procedure almost four years before it banned a "rogue" surgeon from continuing to use it. The confidential report obtained under the Freedom of Information Act reveals that senior management at the Heart of England NHS trust were alerted to a technique being used by its staff which could increase the risk of breast cancer returning.

Cookies: Perhaps this is what the fuss was all about

2013-02-10T17:14:51+00:00

Now the cookie rules have been in force for so long that many of us have moved on to deal with more pressing issues, I’ve been asking myself what the fuss was really all about.

There have been benefits. New careers have been forged in the compliance industry, and webmasters are (probably) more aware of what “their” websites do than before. Compliance professionals have developed a new vocabulary of terms which have been posted on the pages of websites that are accessible by those few, yes those happy few, users who click on the links to learn more about cookies.

The more frequently I click on these links, the more frequently I smile. I read down long lists of cookies, carefully explained and categorised, and I think to myself ‘surely I can’t be the only person not to understand much about this stuff.’ If ever we have found a way of not engaging with users, then surely this is it.

But then again, I don’t remember any specific campaigns mounted by the privacy brigade demanding better transparency about cookies at the time the e-Privacy Directive introduced the new rules, nor do I recall reading any letters from customers of the companies I used to work for mentioning that they wanted to have the right to opt out of certain types of cookies. Yes, people wanted the right to object to personalised advertising, but I can’t think of a single letter from a customer that ever mentioned cookies.

Moving on to the present, however, and thanks to the way we lead out current lives, what we have is a situation where, thanks to the efforts of the privacy lobby and some of the regulators, people are much better informed about the electronic trails that they leave.

But has this changed user behaviours? Or user preferences?

Have many people taken advantage of their ability to obliterate some of these electronic trails by objecting to certain types of cookies?

I’m really looking forward to seeing evidence that many people have.

What I do see are renewed efforts buy the regulators to encourage greater transparency – particularly in the mobile arena, where the focus is now shifting to mobile application developers. Yes, these developers need to become far more transparent about what they do with the data that is hoovered up. But, I don’t think this will necessarily damage their business models.

The point, after all, is simply to explain what is being done with the data that is being obtained. In larger organisations, yes this will be a challenge – a challenge of information accountability. Many more organisations seem to have an information security officer than they have someone accountable for the information that actually populates these databases. The challenge, therefore, is to understand just who is accountable for the information that is being processed, so that they can be accountable for the cookie explanation.

I don’t think that these explanations, once published, will necessarily cause users to object to what is being done. So I don’t think they have much to fear.

The only thing for businesses to fear is not making these explanations available in the first place.

To my mind, the greatest thing to have emerged from the great cookie saga has been to highlight the role of effective information governance in an organisation.

And it’s been highlighted, I think, by pointing out how hard it is to find it within so many organisations.

Egypt court bans YouTube over Innocence of Muslims trailer

2013-02-10T16:50:42+00:00

Month-long suspension of website over anti-Muslim film a 'backwards step' for free speech, says human rights group

YouTube has been temporarily banned in Egypt for carrrying an anti-Islamic documentary that triggered deadly riots across north Africa and the Middle East in September.

In what human rights activists have called a backwards step for internet freedom, Judge Hassouna Tawfiq ordered the government to block access to the video-sharing website for 30 days after the trailer for Innocence of Muslims sparked outrage.

The ban had not been enacted by Sunday afternoon, and a Google spokesperson said the company, which owns YouTube, had not yet been served with any order. But five years after a request for a similar ban was thrown out by an Egyptian court, this week's putative YouTube ban has been seen as a regressive step.

In 2007 an Egyptian judge tried to block 49 human rights websites, but his efforts were vetoed by an administrative court. "It is certainly a backwards step compared to what the court ruled [in 2007]," said Amr Gharbeia, civil liberties director at the Egyptian Institute for Personal Rights.

Gharbeia, whose website was one of those threatened in 2007, said the case showed a failure to grasp the central tenets of the internet. "People will find ways around the ban," he added. "The courts are not aware of how the internet works. They are using the same measures that they would use against newspapers and broadcasters."

He pointed out that such legislation could make Egyptians "lose respect for the rule of law".

The case is one of several recent moves against free expression in Egypt. A report last month said more journalists had been sued for insulting the president during the seven-month presidency of Mohamed Morsi than in the entire 30-year rule of ousted dictator Hosni Mubarak.

But Gharbeia said the YouTube suspension was more likely to be the result of an over-zealous judge than part of a wider crackdown on free speech. "It's very possible that the judge is acting on his own will and conviction and really wants to protect the people of Egypt from something [he considers] evil," he said.

Patrick Kingsley

More ill-informed codswallop from the tabloid press

2013-02-10T16:37:49+00:00

The Sun’s “justice” campaigners are out in force again with their ill-informed codswallop which appears designed to do nothing but misinform the public and create fear, alarm and distress. It’s an absolute disgrace that editors feel at liberty to misrepresent the law in this way. If a newspaper editor wishes to argue for the abolition of the Human Rights Act 1998 or the removal of the UK from the European Union (note the European Union is a seperate institution to the Council of Europe and it is the Council of Europe who is responsible for the European Convention on Human Rights and the European Court of Human Rights) then that is perfectly legitimate, but they should use legitimate criticisms and not invent it where none exists.

The Sun’s latest ill-informed piece is in respect of the Court of Appeal’s decision in a number of cases relating to the requirements to disclose convictions. The system of CRB checks was tightened up after the murders of Holly Wells and Jessica Chapman by Ian Huntley. However, the Court of Appeal found that the present system breaches the human rights of those who have been convicted of irrelevant and minor crimes in the past.

There is, as I have said before, a legitimate public interest in ensuring that those convicted of sex offences against children or who otherwise genuinely pose a danger to the vulnerable in our society are prevented from working with those groups. However, there is not a legitimate public interest in forcing people to disclose cautions and convictions for the most minor of offences committed perhaps a quarter of a century or more ago. Most people will remember the utterly ridiculous situation where people who had devoted their life to public service were prevented from standing for election as a Police and Crime Commissioner in England and Wales because of crimes they committed as children (some as many as half a century ago). It is this disproportionate effect of criminal record checking that has to be addressed; it doesn’t serve any public interest and it certainly doesn’t protect the public.

In this country there is still far too much prejudice against those who have a criminal record. Once a person is convicted of a crime they are branded a “criminal” and are forever going to be seen as one. The prejudice actively harms society because those who are determined to become rehabilitated and live purposefully in society find themselves repeatedly hitting their heads against a brick wall when it comes to getting employment. For many there is no real incentive to desist from criminal behaviour because there are few willing to give them a chance.

Whether you have a criminal record or not; what would the worst season of your life say about you? Would you want to be forever judged based on the mistakes you made during that season in your life? I certainly wouldn’t. I dare say you wouldn’t either; perhaps most of all because it doesn’t reflect the person who you are today. Why should it be the case for those who have committed criminal offences in the past that they should forever be judged by them?

I’m not talking about those people who genuinely pose a danger to the public. A person who is sexually attracted to children or has a history of sexually abusing vulnerable adults should not be permitted to work with those groups in society. That would be putting the public at risk and infringing upon the rights of children and vulnerable adults. However, we must move to a system whereby only relevant convictions are disclosed. The fact that a person stole some stuff twenty years ago is entirely irrelevant if in the intervening twenty years they have not been convicted of theft.

The judgment of the Court of Appeal will not lead to known paedophiles getting work in schools; it won’t lead to known abusers getting work with vulnerable adults. What it will do is ensure that only those with convictions relevant to the work they seek to undertake will be required to disclose them and that the authorities will only be permitted to disclose those convictions which are actually relevant during the vetting process.

The Brooklyn College BDS debate and me: the critics' real agenda | Alan Dershowitz

2013-02-08T16:31:00+00:00

The reason such vicious attacks are made on me for speaking up for Israel is to scare and silence other, more vulnerable advocates

Whenever I speak in support of Israel or in criticism of its enemies, the dogs of defamation are unleashed against me. The attacks, all from the hard left, seemed coordinated, focusing on common ad hominem themes. They accuse me of being a plagiarist, a supporter of torture, a rightwing "Zio-fascist", a hypocrite, an opponent of the two-state solution and a supporter of Israel's settlement policies. All these allegations are demonstrably false, but this does not seem to matter to those whose job it is to try to discredit me.

Let me begin with the charge of plagiarism – a charge originally made by the academic Norman Finkelstein. In my case, the charge centered around a one-paragraph quotation from Mark Twain in my book The Case for Israel. I cited the paragraph to Mark Twain, but Finkelstein said that I should have cited it to a writer named Joan Peters, because he believes I found the quote in her book.

The truth is that I found the quote ten years prior to the publication of Peters' book and used it repeatedly in debates and speeches. When Finkelstein leveled his absurd charge, I immediately reported it to the Harvard University president and to the dean of the law school and ask that it be thoroughly investigated. Harvard appointed its former president, Derek Bok, to investigate the charge. After a thorough investigation, he found it to be utterly frivolous. But to the dogs of defamation, this only goes to prove that Harvard must be part of the pro-Israel conspiracy.

The second charge is that I am pro-torture, despite my repeated categorical statements in my writings that I'm opposed to all torture under all circumstances. I do believe that torture will be used, not should be used, in the event we ever experience a ticking bomb situation. Accordingly, I have suggested that no torture should ever be permitted without a court approved warrant, of the type the ACLU has demanded in targeted killing cases.

But to the dogs of defamation, this distinction is irrelevant. Because I am pro-Israel, I must be pro-torture. This is particularly ironic, since both the Palestinian Authority and Hamas routinely torture dissidents, without their leaders being called pro-torture by the same hard-left defamers who falsely accuse me.

The most recent unleashing of the dogs of defamation was stimulated by the position I took on a BDS conference at Brooklyn College. Although I support the conference going forward, and oppose any attempt to censor it, I raise troubling questions about whether the Brooklyn College political science department should be sponsoring and endorsing that advocacy event, if they would not be willing to sponsor and endorse an anti-BDS event by an equally radical anti-Palestinian rightwing group.

My position, of course, has been distorted, and I have been lumped with those who would censor the event. I have been called a hypocrite because, apparently, the political science department at UPENN once co-sponsored an anti-BDS speech I gave there, despite the fact that I was totally unaware of this sponsorship and would have been opposed if I'd known about it. I was informed, and believed until now, that the event had been sponsored by Hillel and the Jewish Federation.

Along the same lines, two members of the political science department at Brooklyn College have claimed that my speeches there were sponsored by the department and were as controversial as the BDS advocacy event. That is totally false. So far as I can remember, I have made three speeches at Brooklyn College: one, the Konefsky lecture in the late 1960s or early 1970s, which was a purely academic lecture focusing on the work of Professor Samuel Konefsky; there was nothing controversial about it. Second, a speech I was invited to give when I donated my papers to Brooklyn College: again, not very controversial. And third, a talk I gave in 2008 about my teachers at Brooklyn College and about a letter by Thomas Jefferson I had found in a book store (this can be heard online): again, not particularly controversial.

Why, then, is there such a concerted effort to attack me personally and to question my integrity every time I speak about Israel?

It has little to do with me, because my attackers know that I can fight back and that my academic standing will not in any way be influenced by their attacks. The attacks are directed at young academics, without tenure who would dare to speak up on behalf of Israel.

The message is clear: if you support Israel, we will attack you like we attack Dershowitz, but you will be hurt much more that Dershowitz would. We will damage your reputation, hurt your student evaluations and decrease your chances for tenure.

It should come as no surprise, therefore, that so many pro-Israel young academics refuse to speak up. I know because they call and discreetly tell me about the fear they have that they will be subjected to the same kind of McCarthyite tactics that I am subjected to.

That is why I will continue to fight back and respond every time the dogs of defamation are unleashed against me.

• Comments on this article will be open for 24 hours and may be closed overnight

Alan Dershowitz

Michael Moore asks citizens to stand up to Obama on civil liberties issue

2013-02-07T16:56:00+00:00

Moore supporting activists who have mounted a case against the Obama administration seeking change to 'dangerous' NDAA law

Michael Moore, the gadfly documentarian who has made a career out of fighting against conservative issues, has called for US citizens to stand up to President Barack Obama and back a court case he says is fighting a dangerous erosion of civil liberties.

The case has been brought against a little known piece of legislation called the National Defence Authorization Act (NDAA), which critics say has been changed to grant Obama the power to indefinitely detain American citizens without charge.

A group of activists, including Daniel Ellsberg – the official who leaked the Pentagon papers about the Vietnam war – and former New York Times journalist Chris Hedges have gone to court to get the language of the NDAA changed. On Wednesday an appeals court in New York heard arguments in the case and is set to render a judgment in the coming months.

Now Moore has come out swinging against the NDAA, too, saying that the White House is embarking on a plan to scrap vital civil rights that should concern every American citizen – despite a relative lack of publicity about the case. "At the moment a lot of people think the NDAA does not look scary. But this sort of thing never looks scary at the start. But the American people will rue the day if they do not stop this," he told the Guardian in an interview.

Moore was speaking after a court in New York heard an appeal in the case against the NDAA. Lawyers seeking to overturn the NDAA argued that it erodes American rights and free speech, and grants huge and unconstitutional powers to the government to suppress dissent and indefinitely detain people without going through proper legal channels. Lawyers for the Obama administration insist that the NDAA represents nothing new and has never been used in the ways that its critics suggest.

Moore said he would be seeking to explain the case to his fans. "If the American people understood this, I do believe they would be very, very concerned about it," he said. The force behind such hard-hitting documentaries as Fahrenheit 9/11 and Bowling for Columbine – which took on rightwing issues like President George W Bush's security policy and gun laws – said that liberals were giving Obama a free pass due to his popularity with Democrats. "[Obama] puts this face on it that makes it difficult. It was much easier when the face was Bush," Moore said "We have to work and speak out against the Obama administration and everything they are doing to destroy civil liberties."

Such strong language from a liberal icon is likely to shock many of Moore's usual audience. But the case brought against the NDAA is rapidly becoming a rallying cry for many civil liberties advocates, who see Obama as pursuing much of the same national security policy as his predecessor. "The major assault by the Bush administration has been embraced by the Obama administration," said Hedges.

The NDAA case hinges on language that critics say is too vague. It grants the power of detention and the right to use force against anyone deemed to have "substantially supported" al-Qaida or the Taliban, or "associated forces that are engaged in hostilities against the United States or its coalition partners". Critics say those terms are so broad that it, for example, include journalists or academics who interview Islamic militants or clerics. Or that the definition of terrorism might extend to those involved in projects like WikiLeaks or cyber-hacking groups like Anonymous or the Occupy protests.

Lawyer Bruce Afran, who is arguing the case in court, said that the NDAA laid a basis for massive future abuses, even if it currently was not being used in that way. "I know that the government is not setting up internment camps for journalists and activists," he said. "But the very fact that this power exists is what diminishes free speech."

Last September Judge Katherine Forrest surprised many observers by agreeing with the claimants and striking down the NDAA language as unconstitutional to free speech rights. However, the Obama administration immediately made an emergency appeal of the ruling and said Forrest's ruling did "irreparable harm to national security". An appeals court then stayed the decision and ordered the new hearings to be held on Wednesday. Eventually the case could go all the way to the supreme court.

Government lawyer Robert Loeb argued in the appeal that critics had fundamentally misread the NDAA and that journalists, activists and others had no reason to fear the law as it was not aimed at them. The Department of Justice also brought in testimony from three conservative Republican senators - Kelly Ayotte, Lindsey Graham and John McCain – to bolster their position. However, the lining up of such famously hawkish political figures on the same side as the Obama administration is enough to make people like Moore even more implacable in their opposition.

"By and large politicians are not tuned in. Perhaps Obama needs to just be educated about this issue," he said.

Paul Harris

Can Spiderman make a Freedom of Information request?

2013-02-07T12:11:40+00:00

Has your public authority ever received an FOI request from Justin Case, Barb Dwyer or Stan Still? Would these even be valid requests? According to a survey of FOI officers published by the Constitution Unit, the average council receives 47 … Continue reading →

Question answered: “Why does the European Commission think the UK’s Data Protection Act is a deficient implementation of Directive 95/46/EC?”.

2013-02-06T14:37:21+00:00

Whilst preparing for â??my day in Courtâ??, I have realised that I also have had, for over a year, some further detail which explains why the European Commission thinks the UKâ??s Data Protection Act 1998 (DPA) is a deficient implementation of Directive 95/46/EC. I think I have the answer andÂ this extra detailÂ is the subject of this blog.

Next Monday (11th Feb), I have my Tribunal hearing as to whether I can obtain the full text of the letters sent by the European Commission to the UK Government which explains their position on the DPA. At Mondayâ??s Tribunal the Ministry of Justice will be arguing that release of these letters to me will prejudice international relations.

Note that two decades of Conservative euro-phobia and the Prime Ministerâ??s promise for an in-out referendum has not been prejudicial to international relations. By contrast, my little FOI request about data protection is causing all sorts of mayhem and mischief. Indeed, if I win, I suspect the resulting euro-havoc will trigger contingency plans to recall all European Ambassadors for â??discussions on data protectionâ??.

The letters I have requested describe why, according to the Commission, the DPA is a deficient implementation of Directive 95/46/EC. According to the Commission, UK Government has defectively implemented 15 Articles of a 34 Article Directive (i.e. Articles 2, 3, 6, 8, 10, 11, 12, 13, 16, 17, 22, 23, 25, 26 and 28). Summary details from these letters have been blogged before (see references).

However, what I have discovered that in one of its responses to me, the UK Government has grouped the Commissionâ??s issues under headings, which I had previously ignored. Now in conjunction with other information, these headings reveal the detail of the alleged problems with the DPA.

Of course my analysis involves some deduction and supposition but I think I have â??cracked itâ??. However, I donâ??t have further details on the problems with Articles 16, 17, 25 and 26 as these are not featured in the MoJâ??s heading.

This means that the Commissionâ??s letters assert that the UK has inappropriate provisions with respect to transfers outside the EEA (Articles 25 and 26) and the security of personal data (Articles 16 and 17). Something which I still think is of public interest.

Anyway, to the headings and the problems (see the download; it is easy to see why I ignored it!).

1.Â Definition of â??Personal Dataâ?? and â??Relevant Filing Systemâ?? (Article 2)

I am pretty sure that this is a reference to the consequences of the Durant Court of Appeal judgment which narrowed the definition of personal data and Relevant Filing System. I suspect the Government are arguing that the ICOâ??s Guidance on personal data widens the scope of personal data and that this Guidance corrects the Durant judgment.

Sadly this is not correct. I remember a moment in the CSA v SIC case when Barrister for the ICO invited (then pleaded, begged, implored and almost prostrated himself on the floor of the Court in tears) the House of Lords to say some approving comments in its judgement about the ICOâ??s Guidance on the definition of personal data. This is because the ICOâ??s Guidance expanded the scope of personal data beyond the narrow confines of Durant.

Lord Hoffman stopped the barrister in his tracks and intervened to say that CSA v SIC was about â??identityâ?? whilst Durant was about â??relate toâ??. He then added something on the lines: â??we are not revisiting Durant; thereby lies a can of wormsâ??.

Now as readers know that my comments about Durant are usually interspersed with a few anglo saxon nouns and adjectives, so I will leave my commentary to the information law barristers from the 5RB Chambers. They said of the Durant on their website:

â??Sir Humphrey would have been delighted with this decision. The definition given by the Court of Appeal to personal data is so restrictive in relation to manual filing systems, as to constitute a serious obstacle to any citizen seeking to verify the accuracy of information held about him/her by the state. It is surprising that such a wide exclusion of "data" from the Act should be found consistent with the Data Protection Directive or Article 8â??.

I agree. And that is why I am taking my FOI requests as far as I can.

2.Â Collection of personal data in job applications (Article 6 & 28)

We can now say that Commissionâ??s issue with the Articles 6 and 28 is to do with the fact that some employers are obtaining health information from job applicants in circumstances disliked by the Commission. At a guess, it could be that the CommissionÂ sees the Â ICOâ??s Employment Code of Practice as giving too much leeway for when this practice canÂ occur.

The involvement of Article 6 (dealing with what we know as Principles 1-5) makes me suspect that the Commission consider there is an issue concerning fairness, relevance and retention of health personal data in the context of the employment purpose; Article 28 is a reference to the fact that the ICOÂ (at the time of the writing of the letters) did not have sufficient powers to protect the data subject.

Note that if the Commission thinks several Principles have been breached, then there is unlikely to be compliance with Articles 7 and 8 (expressed in DPA as Schedule 2 and 3 conditions) for the processing of health personal data for the employment purpose.

Since 2006 (i.e. after the letters were sent to the UK Government), the vetting of prospective employees against criminal records has extended enormously.

Given that the ICO has taken later action under the Third and Fifth Principles in the UK Courts, in an attempt to stop the use of minor, irrelevant, age-old offences in employment decisions, I would not be surprised if the criticism raised by the Commission in the context of health records also now applies to criminal convictions in the employment context.

3.Â Subject Information Provision (Articles 10 & 11)

I have always been puzzled about the Commissions gripe about fair processing issues but now the Governmentâ??s heading links these Articles to the exemption from the Subject Information Provisions (SIP). This exemption means that the data subject gets neither a fair processing notice nor subject access.

So I think this in turn means that some, or all, of the SIP exemptions in Schedule 7 (e.g. management planning, forecasting and negotiations) do not need, in the Commissionâ??s view, to include an exemption from the fair processing requirements.

Whether the Commission are dissatisfied with the Subject Access exemption is unclear â?? fairness as specified in Articles 10 & 11 has nothing to do with data subject rights.

4.Â Rectification and Judicial Discretion (Article 12)

There are two possible areas linked to the right of access (Article 12):

The Courtâ??s discretion to grant or refuse applications made by data subjects to rectify, or erase inaccurate personal data (caused by the â??mayâ?? in Section 14 of the DPA)
The Courtâ??s discretion to grant or refuse subject access in circumstances other than specified in Article 13 (caused by the use of â??mayâ?? in S.7(9) of the DPA)

The Durant decision determined that the right of the Court to refuse the right of access was â??untrammelledâ??; the Commission I suspect argue that refusal is limited to the necessary circumstances specified Article 13 (e.g. prevention of crime).

5.Â Confidential References (Article 13)

I think the Commission is claiming that the exemption relating to confidential references given by the data controller (i.e. in Schedule 7, paragraph 1) cannot be justified in terms of Article 13 (which specifies when Member States can legislate for exemptions).

As readers should know, back in 1998 the Department responsible forÂ the then Data Protection Bill was the Home Office with Jack Straw as Home Secretary; additionally the UK had to comply with Gaskin v. UK, a decision from the European Court of Human Rights ((1989) 12 EHRR 36).

This combination of these factors inevitably meant that the Bill was amended in a minimalistic way to deliver Gaskin (this is via Sections 7(4) to 7(6) of the Data Protection Act). As Gaskin did not refer to the position of the giver of the confidential reference, the Home Office and Jack Straw provided an exemption for the sender of the reference.

What the Commission is saying is that the senderâ??s exemption and the UKâ??s minimalistic approach to Gaskin cannot be justified.

6.Â Damages (Article 23)

The Directive requires â??The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damageâ??. The Data Protection Act in Section 13 provides for a â??reasonable careâ?? defence.

Note that the DPAâ??s implementation means thatÂ even though the data controller is responsible for the â??the event giving rise to the damageâ??, no damages are awarded in the UK Court because the data controller can show â??reasonable causeâ??.

7.Â Information Commissionerâ??s Regulatory Powers (Article 28)

These problems are in the public domain, so I donâ??t have to suppose anything. In a press release (see references), the Commission identified â??notably limitations of the Information Commissioner's Office's powersâ??. These are that:

â??it cannot monitor whether third countries' data protection is adequate. These assessments should come before international transfers of personal informationâ??;
â??It can neither perform random checks on people using or processing personal data, nor enforce penalties following the checksâ??.

The Press Report noted: â??Furthermore, courts in the UK can refuse the right to have personal data rectified or erased. The right to compensation for moral damage when personal information is used inappropriately is also restrictedâ??.

For instance, if an Information Notice has to be served to get information and if this is appealed to the Tribunal, then there will be about a six month delay before the legal process grinds out an outcome of the Appeal. Similarly with an Enforcement Notice, if appealed, means that processing can continue until the appeal is heard.

This half year delay until the Tribunal determines the outcome of an issue is not what can be described as â??effective powers of interventionâ??.

8.Â ECJ References (Article 234)

This heading is a reference to status of infraction proceedings with respect to the European Court of Justice; it has nothing to do with my request.

However, nearly a nine years ago, when I was a young man starting out on my FOI journey of delay, refusal and rejection, I was told by the European Commission that legal proceedings were â??on-goingâ??. With the current Tribunal case, the refusal of the MoJ to provide the letters is based on the fact that legal proceedings are, yes you have guessed it, â??on-goingâ??.

So how long a time is â??on-goingâ???

This is a question that is the legal equivalent of â??how long is a piece of string?â??.

References:

My Tribunal will take place on Monday 11 February 2013 at 10:00 am, at Court 7, Field House, 15 Breams Buildings, London EC4A 1DZ if you want to come along.

We have a half day on the EU regulation on March 18th in London (Â£225+VAT): http://www.amberhawk.com/bookevents.asp

Two recent blogs relating to â??Why the EU thinks the UK Act is deficientâ?? which includes downloads are:

Information published by the MoJ as a result of an FOI request: http://amberhawk.typepad.com/amberhawk/2011/05/privacy-new-government-revelations-amplify-concerns-surrounding-deficiencies-in-uks-data-protection-.html
Information published by the European Commission as a result of an FOI request: http://amberhawk.typepad.com/amberhawk/2011/02/european-commission-explains-why-uks-data-protection-act-is-deficient.html

The UK Government headings that allow more detail to be deduced: Download BLOG_MoJ letter:

5RBâ??s commentary on Durant. http://www.5rb.com/case/Durant-v-Financial-Services-Authority

EU Press release on infringement proceedings: http://europa.eu/rapid/press-release_IP-10-811_en.htm

Communications Data Retention – The ISC’s report

2013-02-06T12:22:24+00:00

The Intelligence and Security Committee has published its eagerly awaited (28 page) report on how the proposals in the Government’s draft Communications Data Bill might affect the use of communications data by the intelligence and security agencies.

It complements the more wide-ranging (101 page) report that was published last year by a Joint Parliamentary Committee that I worked with.

It won’t come as a surprise to anyone to learn that the conclusions are very similar. Both reports considered that the Bill should be much more specific about the records that providers should (generally) be required to retain.

The ISC, naturally, is keen that people who may be of interest to the agencies are not given an opportunity to learn precisely where the gaps in capability are. If targets knew where the gaps were, they might be exploited to evade detection. Accordingly, the ISC considers that notices to particular providers, requiring them to retain particular date types, should remain secret.

That may be highly desirable as far as the agencies are concerned, but in many cases the records, if they exist, will eventually be produced as evidence in legal proceedings that relate to criminals who are of no interest to these agencies. How can a capability by a provider to retain particular records remain a secret for the agencies, but be public knowledge for other parts of the law enforcement community, the courts – and also for customers when the exercise their subject access rights under data protection legislation?

It is not at all easy, in an internet age, to tinker with the transparency agenda. Perhaps there is a trade off between short term dips in operational capability and greater public pressure on a provider (or providers) to start to keep records that, for commercial, technical or legal reasons, are not currently kept.

I would expect the Government to adopt an approach that allows a greater, rather than a lesser, degree of transparency. All citizens expect the State provide a certain degree of public security, and for that the State needs the tools that are necessary to enable it to carry out this role. But citizens also want to be confident that the State is only doing what is necessary and what is proportionate.

Now that this report has been published, it shouldn’t be long before we hear about the Government’s revised plans to ensure that those who have the capability to inspect our communications remain fully accountable.

Source:

Access To Communications Data By The Intelligence And Security Agencies, Cm. 8514

https://b1cba9b3-a-5e6631fd-s-sites.googlegroups.com/a/independent.gov.uk/isc/files/20130205_ISC_CD_Report.pdf?attachauth=ANoY7cq8ufgcy25Sl1NTKNVt5Qr2kC_02Py4utjTUlBfUi4No05Jy9HgemkxjIc-9w0pzWUp0xDCC6DpGWeyGj1eB1gNi8Xe9wRTMTv_1G1wH8CzyeaGItBLIUMNiaDKGl5Ugy2TAMGsY8vtEqTq1mbALfTMDLFNOAPJcHLsUxOX6Sjqf4Dv7mTVpE4sUj4CZQK-OsdG8Q6nKI026HSqT-PWbfbfjeDknpJjA54_8XWtHvD5pbCZO3c%3D&attredirects=0

http://www.parliament.uk/documents/joint-committees/communications-data/CM208359DraftCDBill.pdf

Twitter word cloud

2013-02-05T22:34:14+00:00

Last week, the Abortion Support Network ran a fundraising initiative promising the first ten people to donate £10 a wordcloud based on their tweets, made by @geoffsshorts. I don't know if you can still get them, but you should donate to ASN regardless. My word cloud is below. I'm honestly not sure what it says about me...

Rock salt mine's fight against nearby gas storage project nears the 11th hour

2013-02-05T20:51:59+00:00

Winsford mine, which also houses National Archive treasures, fears a 'disastrous' leak if underground bunker gets green light

Britain's biggest and oldest salt mine, where lorries queue up for grit whenever snow and ice are forecast for Britain, is fighting a last-ditch battle against plans to store pressurised gas in caves less than a mile away.

The owners of the 160-mile warren of tunnels at Winsford rock salt mine in Cheshire – which house priceless items from the National Archives as well as turning out grit – have failed in their legal efforts to acquire detailed geological information relating to an underground gas bunker at nearby Stublach.

The bunker is being proposed by the French energy firm GDF Suez. Staff at the salt mine fear that any gas leak from the facility would be disastrous.

GDF Suez's Storengy storage division has a good safety record, but the US-owned Salt Union company at Winsford says that gas storage does not sit easily alongside such a large and busy mine, where employees work 24 hours a day throughout the year.

"The scale of what could happen if there was any leak could be disastrous," said Harold James, managing director of Compass Minerals UK, Salt Union's parent firm, during a three-hour tour of the labyrinth where more than 1.4m tonnes of rock salt is extracted by machines a year. "We have 50 people here, known to all of us, underground round the clock, seven days a week. No business interest should supersede their safety."

The mine is an intensely active place. Colossal machinery was taken into the mine in pieces – like steamers bound for African lakes during the days of British imperialism – then reassembled underground. One piece is a new £2.5m continuous cutting machine that eats through the rock, another is a bulldozer with a bucket that carries 25 tonnes of shattered salt.

Petrol-driven equipment is banned and extra security measures apply to the miles of shelves in the archive section, where documents dating back to Tudor times are stored, alongside confidential police records, celebrated architectural models and a hoard of other material.

The salt was laid down 220m years ago when this part of Cheshire was under first the sea, then a briny inland lagoon. Deep mining below 150 metres (492ft) began in the 1840s and was so intense that 65 firms fought for trade until combining as the Salt Union.

The Storengy gas project has been four years in the making and Salt Union has been campaigning against it for three of them, during which time it has made requests, issued a lawsuit and produced vivid leaflets showing flames pouring into the mine from fissures in the rock.

A final decision by the Health and Safety Executive is due next month.

During the 1.5m construction man-hours spent at Stublach since 2008 there has been only one "lost time" injury – a worker's trapped thumb in April of that year – and the operation is regularly monitored by safety experts.

Anxiety has grown about geological unpredictability where the salt strata have been mined since Roman times. A landslip between the Winsford and Stublach sites thousands of years ago left the salt strata lower on the Stublach side.

Winsford's mine manager, Gordon Dunn,, who has years of experience in less stable Yorkshire coalfields, said: "Were any gas to leak underground, it would naturally seek the surface, and cracks and fissures could take it to the fault and then upwards – to our side."

Graham Evans, the Tory MP for Weaver Vale, is pressing the Department of Energy and Climate Change (Decc) and the HSE for extra research and an audit of the planning system for underground schemes after Winsford was left out of the consent loop because the surface buildings of the two sites were far apart.

"I find it incredible that Salt Union was not initially consulted," said Evans, "and it seems extraordinary that they have been obliged to go to the Freedom of Information [FOI] Act to try to get reassurance."

The firm applied for judicial review of the standard HSE procedures in the case last summer but a judge said further independent checks were unnecessary. It then had to make FOI applications for geological material.

Evans added: "I can imagine what would happen if we had a gas storage facility in place and someone then applied to mine 800 metres away. The [HSE] does an excellent job and quite rightly applies famously strict standards to anything which might be dangerous. It is only one step further to recognising that the 'accident waiting to happen' possibilities here, however remote, are potentially enormous."

The Conservative MP for neighbouring Eddisbury, Stephen O'Brien, is also pressing for more details after the employment minister Mark Hoban stonewalled Commons questions. Hoban repeatedly said the Stublach caverns had passed secure storage tests, and would not be drawn on wider strata issues in the event of an escape.

Storengy said it had followed the regulatory process and was working closely with the relevant authorities. It added that natural gas had been stored without reported incident in the Cheshire salt layers for many years and that the suitability of the area's geology had been confirmed.

The HSE does not have powers to rate a particular hazard as exceptional beyond the huge range covered in its official remit.

An HSE spokesman said: "Underground gas storage of this type is common in continental Europe and several such sites are already operational in the UK with several more likely to come on line in the next few years.

"We are assessing the pre-operational safety report [from] Storengy."

Decc said the safety considerations were a matter for the HSE and the department would not intervene.

But pressure is expected to continue at a time when ministers are also dealing with plans to store nuclear waste in Cumbria – possibly beneath the Lake District national park – which has raised similar "exceptional case" issues.

Martin Wainwright

Danish critic of Islam attacked by gunman

2013-02-05T16:55:26+00:00

Man shoots at writer Lars Hedegaard outside his home in Copenhagen but misses and flees after scuffle

A gunman has tried to shoot a Danish writer and prominent critic of Islam, but the writer managed to fend off his assailant and was not injured in the attack.

Police said Lars Hedegaard, who heads two groups that claim press freedom is under threat from Islam, was the target of the shooting. In a brief statement, they said a roughly 25-year-old gunman rang the doorbell at the writer's Copenhagen home and when he opened the door, the gunman fired a shot aimed at his head, but missed.

"After a scuffle the attacker fled. We do not know whether the police have apprehended him," the Danish Free Press Society said.

Hedegaard, 70, heads both the Free Press Society and the International Free Press Society. He was fined 5,000 kroner (£570) in 2011 for making a series of insulting and degrading statements about Muslims, but appealed against the conviction and was acquitted by the Danish supreme court in April 2012.

Denmark's prime minister, Helle Thorning-Schmidt, condemned the attack. "It is even worse if the attack is rooted in an attempt to prevent Lars Hedegaard using his freedom of expression," she told the Danish news agency Ritzau.

Hedegaard has expressed support for a range of outspoken critics of Islam in Europe, including the Swedish artist Lars Vilks and Dutch lawmaker Geert Wilders.

"Failed attack on my friend and Islam critic Lars Hedegaard in Denmark this morning. My thoughts are with him. Terrible," Wilders tweeted.

The Free Press Society said it was "shaken and angry" over the attack, but "relieved that the perpetrator did not succeed".

• This article was amended on 7 February 2013, because it said that Lars Hedegaard was fined but did not point out that his conviction was later quashed by a higher court.

ICO’s 2013 conference programme revealed

2013-02-03T17:03:56+00:00

Those who applied to attend the ICO’s conference, to be held at the Manchester Central Convention Centre next month, ought to have received their official confirmations by now. If you are among the lucky ones to have been accepted, then I look forward to seeing you there.

The agenda is packed with an impressive range of seminars to attend – as well as keynote speeches by the usual suspects, and perhaps a surprise or two.

What will be the overarching theme of the day? What crumbs of comfort will stressed data protection officers be getting? Will it all be bad news?

Using the phrase so cleverly twisted by Graham Smith last year, when opening the event as the first of “The Smiths” to speak, it wasn’t his aim for everyone to leave thinking “Heaven knows, I’m miserable now”.

That joke isn’t funny any more.

Stop me if you think you’ve heard this one before. I’ve set out, in my usual way, what I think the theme of the conference will be:

The speakers are confirmed
It’s been trending on Twitter
If you’ve got your invitation
Then you must be a big hitter

From the many who applied

To the few who were chosen
From the warmth of an office
To the conference centre frozen

But we are there, we are ready

We are waiting to cause mayhem
To a storm of applause
The chairman calls Chris Graham

He tells it as it is

To an audience quite hushed
Starting with an annual round up
He does not care to be rushed

Some thoughts from the heart

Into his soul he will reach
For his true opinions
On the latest data breach

Then a few words of comfort

For those seeking information
About who is saying what
On the draft regulation

Then it comes – the big announcement

Which gets us all in a tizzy
For our special entertainment
Will be some songs by Thin Lizzy

Who cares about The Smiths

Despite their renown
As we all sing the chorus
‘The boys are back in town’

Why a Irish group that imploded

Some 21 years ago?
What’s the link to the conference?
That’s what we wanted to know

That band started in the 70’s

And it surely is a fact
Their greatest hits were well before
The Data Protection Act

Perhaps the themes of the event

Are relax and don’t get stressed
If you have no bad intent
Try your hardest, do your best

And

Do it your way if you must
But should there be a time
When you really come a cropper
You might face a stonking fine

Source:

http://www.ico.gov.uk/conference2013.aspx

(Please note, I am joking when I suggested that Thin Lizzy would be performing at the event. But they are still touring, you know)

Image Credit:

http://www.google.co.uk/imgres?imgurl=http://userserve-ak.last.fm/serve/_/27874999/Thin%2BLizzy%2Blizzy.jpg&imgrefurl=http://www.last.fm/music/Thin%2BLizzy&h=162&w=183&sz=1&tbnid=C6WSfwhsgmgS3M:&tbnh=162&tbnw=182&zoom=1&usg=__GgoHeMqCb3iANfQecLTWI1KOuu0=&docid=ALa0SlGssv1WrM&itg=1&hl=en&sa=X&ei=SkAOUdC8GIeb1AWt-IGwBA&sqi=2&ved=0CJEBEPwdMAo

Prisons, prisoners and prison conditions

2013-02-03T16:07:56+00:00

There has been a lot of talk over the last few days about prisons and the conditions within them. We have seen the traditional tabloid/right-wing mantra of prisons should be tougher and they’re too much like holiday camps.

In Scotland it was suggested that prisoners should have phones inside their cells while in England and Wales the Secretary of State for Justice has said they are looking at the Incentives and Earned Privileges (IEP) scheme; particularly how they could make it tougher. The former has resulted in condemnation while the latter has resulted in celebration by the tabloid press.

These types of discussions make me angry. This pandering to prejudice does not help society; it actively harms society. When talking about prisons and prisoners the terms used are dehumanising in nature: “thug”, “lag”, “lout”, “animal”, “monster” and “caged” are some of the ones I dislike the most. In order to have a criminal justice system that works we have to proceed on the basis that we are dealing with human beings and not animals. When we work on the basis that they’re sub-human or animals it becomes so much easier to treat them in a way that would ordinarily be condemned.

There is also a great misconception about prison. A person is sent to prison as a punishment and not to be punished. The two are worlds apart and when we recognise that it is prison that is the punishment and not what happens inside the prison; we can begin to think properly about what needs to happen in prison in order to ensure that prisoners are rehabilitated.

The idea of placing phones in each cell is a good one. It is well known that family contact is important. Currently there are so few phones in prisons for prisoners’ use that it is not possible to maintain a proper relationship. Calls are short and there can be significant periods between calls. The time available for prisoners to use the phone is limited due to the amount of time that they spend out of their cell. For some it can be a choice between having a shower and making a phone call to their children/parents/partner or whoever else is on the outside.

There is of course written communication. However, that is still conducted by way of ordinary post. The time that it takes a letter to get through the system to the prisoner and for that prisoner’s reply to get back through the system it can easily be a whole week. Visitation is also permitted, but it is also limited by time and numbers.

In other words, the current system isn’t very good at ensuring family contact is maintained. However, the amount of time that prisoners spend locked in their cell in the evening and over the weekend could be put to better use. Having phones in the cell will ensure that more prisoners will be able to have better contact with their friends and family on the outside.

Of course, processes would need to be put in place to ensure that the phones are not abused and that is the role of the prison authorities to work that out. It shouldn’t be dismissed simply because it’s a “perk”.

The idea that prison should be tough is a false presupposition. For most, the conditions inside of prison play little part in whether they offend/re-offend. The Conditions outside of prison play more of a role than the conditions inside prison do. It’s about the community that someone lives in: if they’re surrounded by people to whom taking drugs and committing crime is normal then that is likely to play a significant part in whether a person begins taking drugs and committing crime. It’s not the only explanation: people from good backgrounds where drugs and crime is not the norm still commit crime. However, for those that re-offend after prison the community they go back to plays an important role.

A person can develop a determination to change while in prison; however, upon release the cold hard reality hits them. They go back into the community from where they came and start associating with the people they associated with before they went into prison: they know nowhere else and know nobody else. They are then surrounded by all the temptations of drugs and crime that they were before and very quickly they are living their old life again. That might make people question the sincerity of their determination to change, but it shouldn’t.

Those who have a real determination to want to change should be offered a radical change in lifestyle. They should be offered the chance to be released into a different location (one which is well away from where they were before prison) and should be placed into contact with people willing to help prisoners on release and who can help guide them through getting a job. These ordinary people can introduce them to a new community; one where drugs and crime is not the norm. It’s really an extension of the probation service, but it’s stuff that the probation service doesn’t have the time or the resources to do. It can be offered to those who are serving both long and short sentences.

I think this kind of approach would radically change re-offending rates. In order to break the cycle of crime we need to treat people like humans and give them real practical help to radically change their life. Putting them back into the circumstances they came from is unlikely to really help them change. Society has to take a greater responsibility for helping break the cycle of crime. The ultimate decision is that of the offender, but if someone wishes to change then society should get round them and help them to do that.

Is Scotland becoming less free with its information? A report on the FOI Scotland Conference 2013

2013-02-03T14:14:44+00:00

FOI Man sees two alternative futures for FOI at the FOI Scotland Conference.

Is Scotland becoming less free with its information? That was the question posed by the organisers of this year’s Freedom of Information Scotland conference, held in Edinburgh last week. And to be honest, I came away with the impression that if anything, Scotland could teach the rest of the UK a thing or two about freeing up its information. But I also came away with a sense of how fragile the right of access can be.

A bit of context first. Like the UK Government, the Scottish Government has just completed a post-legislative scrutiny of their FOI Act. And the week before last an FOI (Amendment) Bill was passed which made a small number of changes to the Act. Critics, like the Campaign for FOI in Scotland, have been scathing of the SNP administration’s lack of ambition. In particular, as in the UK as a whole, there is concern that FOI is not “following the taxpayer’s pound” as Margaret Hodge would put it, as more and more services are contracted out to organisations that do not face the same obligations as public bodies.

Nicola Sturgeon MSP, the Deputy First Minister, who leads on FOI in the Scottish Government, not unsurprisingly argued against the premise of the conference’s subtitle. Her argument is that the FOI (Scotland) Act is already progressive compared to its contemporaries. This Bill was never intended as root and branch reform of the Act, but merely to tidy up a few inconsistencies. She pointed out that FOI is only part of a wider agenda of improving transparency in Scotland, pointing to the Public Records (Scotland) Act 2011 (which introduces new requirements for records management in public bodies and those providing public services) and the Public Services Reform (Scotland) Act 2010 (which requires public bodies to publish details of expenditure on public relations amongst other things). She also promised to bring forward an order to extend FOI to more organisations by the summer recess this year, which would be the first time that such an order had been made in Scotland. In an apparent side-swipe at the UK’s post-legislative scrutiny (though she actually cited Ireland, which we’ll come to in due course), she remarked that other governments had used their post-legislative scrutiny processes to weaken FOI. Only Scotland had emerged with stronger legislation.

Carole Ewart of the Campaign for FOI in Scotland remained scathing of the Scottish Government, describing the Amendment Bill as “a wasted opportunity”. Judging by a number of comments made on Twitter, a number of Scots feel the same way. There is also a degree of cynicism over the promise to extend FOI, a promise made, and broken, many times before in the last decade by Governments of all hues.

FOI Man in the Scottish Parliament chamber, Edinburgh

One of the things I looked forward to most at this conference was the opportunity to meet the new Information Commissioner in Scotland, Rosemary Agnew. Scottish authorities who rubbed their hands with glee on hearing that her predecessor Kevin Dunion was leaving the post will be disappointed if they thought this would lead to a softening of the Scottish Commissioner’s stance on FOI. Rosemary appears to be embracing her new role with zeal. One of her first acts in the role was to persuade the Committee looking at the Amendment Bill that the exemption relating to correspondence with the monarch and their heirs should not be made absolute as this would damage openness. As she commented, this in itself now makes the Scottish Act more open than the UK one, amended in this way in 2010.

Rosemary explained that she sympathised with public authorities as before being appointed as Information Commissioner she had been the Chief Executive of one herself. But her antidote to the increasing burden of FOI is not to limit the right of access, but to improve business practices, which in turn will help organisations to work more effectively across the board. It isn’t one thing, she argued, that makes it easier to meet FOI obligations, but a combination of improved procedures, better records management (Rosemary was unusually enthused about the importance of records management for a senior official) and culture change. Senior officers need to “live the culture of openness”. And FOI Officers heard Rosemary extol their work and make clear that supporting them is key to doing FOI well. I won’t disagree with her.

The conference also heard from someone who had used FOI – eventually – to obtain justice. Rab Wilson, a man with a way with words, and a nurse, told of his 6 year battle to procure the release of reports on serious incidents by the health trust he worked for. It was only a decision notice from the Scottish Commissioner that eventually validated his concerns after years of stress for him and his family.

FOI in Scotland does not of course exist in a vacuum, and we heard about FOI changes in adjacent countries. Regular readers will be well aware of Dr Ben Worthy’s research into FOI implementation in the UK, and he was, as ever, eloquent on the subject. But the real eye-opener was Gavin Sheridan’s description of his attempts to use FOI in the Republic of Ireland. Since amendment in 2003, requesters in Ireland have to pay not only to make a request, but also for the cost of search and retrieval – his highest bill yet for which was 29,000 euros for a dataset, for internal reviews, and for appeals to the Information Commissioner. One request can end up costing many thousands of euros, putting FOI beyond the reach of most members of the public. Gavin set up thestory.ie in 2009 and his tale of using the Act to obtain information about Government departments was by turns both comic and Kafkaesque. His wry amusement at the series of obstacles put in requesters’ paths, including the need to submit requests in the old-fashioned way using envelopes and stamps, could not disguise his obvious and not unreasonable frustration with his country’s approach to something it is nowadays a struggle to call “freedom of information”. As our Government in the UK considers tampering with the regulations governing fees, we might well note his experience.

Unfortunately I can’t report on the break-out sessions at the conference other than the two I chaired, but feedback suggested that they had been lively affairs and mine certainly were. I’ll write at another time about my session on blogging FOI. In the other session I chaired, Iain Bourne of the UK Information Commissioner’s Office talked about the ICO’s new Code of Practice on Anonymisation, which I’ve written about here before.

My own conclusion, like many at the conference, is that Scotland remains progressive in its implementation of FOI, but campaigners and those who want to use it must remain vigilant. And from my own perspective, it underlined the need to do all we can to ensure that our UK FOI Act does not lose ground, for fear that it might become shackled like that of Ireland.

I’d like to thank Holyrood Magazine Conferences and the Office of the Scottish Information Commissioner, who jointly organised the conference, for inviting me to take part, and for their hospitality on the day. I thoroughly recommend next year’s conference on the basis of my experience in Edinburgh last week. It was a superb conference that left me buzzing with renewed enthusiasm and I’m sure other attendees felt the same. And it was a real pleasure to meet so many friendly and enthusiastic people keen to talk about FOI in a positive way.

Important FOI briefing session announced

2013-02-03T09:44:49+00:00

The extraordinary Campaign for Freedom of Information, to whose coattails all FOI supporters hang, have announced a briefing session on 18 February to discuss the continuing threats to the Freedom of Information Act 2000 (FOIA). As they point out, particular areas of concern are

The government is planning to amend the Freedom of Information Act to make it easier for authorities to refuse requests on costs grounds. This could have serious implications for requesters…

The government is also proposing to allow unrelated requests from one person or group of people to the same authority to be refused if their number is overly burdensome…Local newspapers, which cover a range of different issues involving the same authority, could be among the first casualties of this proposal…

Ministers are also considering introducing charges for appealing to the Information Rights Tribunal – a measure likely to discourage many appeals from being made.

saveFOI members will be attending, and we also intend to continue to support the Campaign in its defence of FOIA, for as long as it takes.

Another fraud from abroad

2013-02-02T10:15:19+00:00

One of my email accounts has just received a communication from someone with a Yahoo.Japan email address:

This is Miss. Charlote Siegloff from Trinidad &Tobago. I am writing from the hospital in Cote D'Ivoire, therefore this mail is very urgent as you can see that I am dying in the hospital. I was told by the doctor that I was poisoned and has got my liver damaged and can only live for some months.

I inherited some money ($2.5 Million) from my late father and I cannot think of anybody trying to kill me apart from my step mother in order to inherit the money, she is an Ivorien by nationality.I want you to contact my servant with this informations below:

Mr. Mathins Henry.
Address: Rue De La Princess L/G 152 Cocody
Abidjan, Cote D'Ivoire.
Email;[redacted]@yahoo.com

He will give you the documents of the money and will direct you to a well known lawyer that I have appointed to him, the lawyer will assist you to change the documents of the money to your name to enable the bank transfer the money to you. This is the favour I need when you have gotten the money :-

(1) Give 10% of the money to my servant Mathins Henry, as he has been there for me throught my illness and I have promised to support him in life. I want you to take him along with you to your country and esterblish him as your son.

(2) Give 10% of the money to Charity Organisations and Churches on my name so that my soul may rest in peace.

Note;This should be a code between you and Mathins in this transactioin "Hospital" any mail from him, the barrister he will direct you to, without this code "Hospital" is not from the barrister, Mathins, the bank or myself as I don't know what will happen to me in the next few hours.

(3) the lawyer's name is Mc Lambert Adams. And Let Mathins send you his National ID or his passport to be sure of whom you are dealing with. Mathins is so little therefore guide him. May God bless you and use you to accomplish my wish.

Pray for me always.
Thank you
Miss. Charlote Siegloff.

Surely, if anyone falls for this stuff, they have no one to blame but themselves.

Hopefully, by now, our chums at Yahoo! will have received enough complaints to block both Charlotte’s Japanese email account and the address that people were invited to contact Mathins on.

Image credit:

The world (as it was known and ruled in 1910) http://www.emersonkent.com/images/world_map_1910.jpg

Displacing dodgy data protection training

2013-02-02T10:13:17+00:00

How do you know whether someone has an appropriate level of experience in data protection?

This question is becoming quite important, as a variety of organisations are currently offering various types of certification of data protection proficiency.

But are these certificates actually worth much? What assurance do they give that the bearer of the certificate is any good at applying legal principles in a manner that is acceptable to an employer or to a regulator? Which is the best one?

Given the increased level of public interest in data protection, I expect that it won’t be too long before the spotlight falls on the training organisations that currently operate in the UK. Does each organisation really offer the trainee an adequate level of knowledge, and is the certificate that is subsequently acquired of much practical use to a British data protection officer?

Yes, employers like people who are qualified. But qualified in what respect? If they are not careful, employers will just rely on the publicity that is churned out by the certification providers. But publicity about how good their own certification is cannot really be taken as a sufficiently objective measure.

What qualifications really are appropriate? Those issued by the British Computer Society/ISEB? PDP? Act Now? or the IAAP?

Here, there might be a role for National Occupational Standards. These are standards which describe what an individual needs to do, know and understand in order to carry out a particular job role or function. As the NOS website helpfully points out, they are:

"National because they can be used in every part of the UK where the functions are carried out;

Occupational because they describe the performance required of an individual when carrying out functions in the workplace, i.e. in their occupation (as a plumber, police officer, production engineer, etc); and

Standards because they are statements of effective performance which have been agreed by a representative sample of employers and other key stakeholders and approved by the UK NOS Standards Panel.”

Trainers in the policing and law enforcement area have recently created a standard with the snappy title of “SFJ ZA11 Ensure organisational compliance with Data Protection legislation”.

Perhaps what we need is for more industries to create suitable standards, and then for an independent regulator to assert whether the certificates offered by the major training providers adequately meets these standards.

Otherwise, we might see training organizations taking advantage of the growing fears that organizations have when they realise that they need to get data protection right, by delivering inadequate training to students.

If ever there were a need for regulation to protect the public against dodgy standards, then perhaps there is a case for the data protection training market to be more formally regulated.

Source:

http://nos.ukces.org.uk/about-nos/Pages/About-NOS.aspx

The FOI Act is at risk!

2013-02-01T18:36:03+00:00

Briefing meeting 2pm, 18 February 2013

The Human Rights Action Centre, 17-25 New Inn Yard, London EC2A 3EA (map)

The government is planning to amend the Freedom of Information Act to make it easier for authorities to refuse requests on costs grounds. This could have serious implications for requesters.

At the moment, authorities can refuse requests if they estimate that the cost of finding and extracting the information exceeds certain limits, currently £600 for government departments or £450 for other authorities. The government wants to allow them to also include the cost of considering the request and deleting exempt information. New or complex issues, which are always likely to require significant consideration time may be refused in future, without the substantive issue ever being addressed.

The government is also proposing to allow unrelated requests from one person or group of people to the same authority to be refused if their number is overly burdensome. This may involve resuscitating the Blair government's proposal to allow unrelated requests to be refused if their combined cost exceeded the limit for a single request. Local newspapers, which cover a range of different issues involving the same authority, could be among the first casualties of this proposal. The government is also considering reducing the cost limit itself.

Ministers are also considering introducing charges for appealing to the Information Rights Tribunal - a measure likely to discourage many appeals from being made.

The Campaign for Freedom of Information is holding a briefing meeting on Monday 18 February 2013 at 2 pm to discuss the proposals and what can be done about them.

If you would like to attend please RSVP to admin@cfoi.demon.co.uk or @CampaignFOI on Twitter. Please circulate details of the meeting to any friends or colleagues you think would be interested. The details are available from http://www.cfoi.org.uk/foi180213mtg.html

The Campaign's commentary on the government's proposals can be found at:

http://www.cfoi.org.uk/pdf/foipostlegscrutiny_cfoicommentgovtresp.pdf.

Criminal record checks, Article 8 and fairness

2013-01-31T18:39:15+00:00

On Tuesday the Court of Appeal issued an important judgment on the disclosure of criminal records and its relationship to the right to a private and family life; protected by Article 8 of the European Convention on Human Rights (ECHR) as incorporated into domestic law by the Human Rights Act 1998.

The main question before the Court was whether the requirement for applicants to certain types of job to disclose all previous convictions was incompatible with the ECHR. The Court of Appeal held that the requirement to disclose all convictions was disproportionate to the aims of the policy; consequentially it found that there was a breach of Article 8. Yesterday, the Government announced that it intended to appeal that decision to the United Kingdom Supreme Court.

The decision by the Government to appeal the decision to the Supreme Court is a disappointing one. It demonstrates a lack of commitment to their so called “rehabilitation revolution”. Not so long ago the Prime Minister gave a major criminal justice speech which promised a “tough but intelligent” approach to criminal justice from his Government. The decision to appeal this Court of Appeal seems to fly in the face of the promise of an intelligent approach to justice.

Clearly there is a legitimate aim in ensuring that those who are genuinely unsuitable to work with children or other vulnerable people are prevented from doing so. No sensible person is suggesting that this shouldn’t be the case. However, the current approach is really rather ridiculous.

Each and every single one of us gets things wrong; we make bad decisions and that can have consequences for us. If we commit a criminal offence and that is detected then quite rightly there will be a consequence: a fine, community service or even a prison sentence. Those who break the law are punished by the Court in the way that the Court; taking account of all the circumstances of the case, decides is appropriate.

Once a person has served their sentence; the punishment for the crime that they have committed, they should be able to get on with their lives. There should be no restrictions placed upon their life unless absolutely necessary for the protection of the public. Rehabilitation requires that people are able to get jobs and when whole professions are closed off to them because of some minor convictions (some of which may well be extremely old) then this becomes significantly harder; it may even act as a disincentive for a person to desist from crime.

There were some fantastically stupid examples of criminal convictions that were so old that they may as well never have existed preventing people from standing as candidates for the Office of Police and Crime Commissioner in their area. Some of these convictions were40 years old and the individuals in question had dedicated their life to public service. How can it be right that convictions that old can still be considered relevant when the individuals have clearly demonstrated that they have been successfully rehabilitated? It just seems to be part of a never-ending punishment that our society largely considers it acceptable to place upon those who transgressed the law in their past.

It is entirely possible to devise a system which ensures that vulnerable groups are protected from those who pose them harm whilst also ensuring that those who have changed their lives or have simply made a few bad choices in their past can get on with life and not be forever reminded of and plagued by their past. It’s not easy to do, but that shouldn’t stop the Government from devising such a system; it might well take them some considerable time. However, if we want to progress as a society and ensure that those who want to be rehabilitated can actually be so; then we need to ensure that we provide an environment in which that can be achieved. The present system cannot facilitate that and the Court was quite right to find that there was an unjustified interference with a person’s Article 8 rights as a consequence. The Government should be spending time and money on a replacement system rather than appealing to the Supreme Court.

Cookies: Was the ICO’s original approach too extreme?

2013-01-31T17:50:25+00:00

An interesting announcement has recently appeared on the ICO’s website. Now, visitors will have to explicitly consent to a narrower range of cookies before they are set. This means that a wider range of cookies will be set automatically, which the user will obviously be able to delete, should they wish.

This is great news – not only for the ICO, who will be able to harvest very useful information about how users navigate the website, but also for those who argue that implied consent can, in certain cases, be just as valid as obtaining explicit consent, to process data lawfully.

The ICO’s public explanation for the change is interesting: “We first introduced a notice about cookies in May 2011, and at that time we chose to ask for explicit consent for cookies. We felt this was appropriate at the time, considering that many people didn’t know much about cookies and what they were used for. We also considered that asking for explicit consent would help raise awareness about cookies, both for users and website owners. Since then, many more people are aware of cookies – both because of what we’ve been doing, and other websites taking their own steps to comply. We now consider it’s appropriate for us to rely on a responsible implementation of implied consent, as indeed have many other websites.”

However, there was no mention of the difficulties that were caused to ICO staff, who found that hardly anyone had explicitly consented to the placement of cookies that fell outside the 'strictly necessary' category on their devices, so the ICO didn’t know whether much of the content that had been published on its own website was actually being read by many people. Perhaps the original approach really was detrimental to the legitimate interests of webmasters.

Nor was there mention of any evidence of whether many people had actually realised, from the plethora of cookie warnings that have been plastered on websites everywhere since May 2011, what cookies actually were. I suspect that the great British public has generally ignored this historic opportunity to learn more about cookies – and that they will be quite grateful not to have to click away at a snowstorm of warning notices before they get to the stuff they really wanted to access. If anyone has any evidence about how these notices have changed behaviours, I’m sure we would all really like to see it.

Sanity rules. And three cheers for that.

What we now need is, say, for good incident to arise which night cause a spat between different regulators. Perhaps a Dutch citizen, resident in Holland, could complain to the Dutch Data Protection Regulator that they had logged onto the ICO’s website and found that some types of cookies had been installed on their devices – cookies which, if they had been loaded by a Dutch data controller in Holland, should only have happened after explicit consent had been supplied. That will keep the Sado Dataprotectionists going for a few more months.

Source:

http://www.ico.gov.uk/news/current_topics/changes-to-cookies-on-our-website.aspx

Council Housing Information and FOI

2013-01-31T12:24:17+00:00

Local authorities have, over the years, received many FOI requests for information about properties in their area. Requests have been made by, amongst others, squatters’ rights campaigners for lists of empty properties and by others for council property addresses where … Continue reading →

The future is here and it is disappointing

2013-01-30T19:10:34+00:00

Let's be clear on one thing here: we have the technology. We have the technology for me to be able to view any piece of digital video ever made, instantly, wherever I want, whenever I want. And another thing: I have absolutely no objection to paying for viewing said digital video; but I do object to so-called content providers taking the piss.

Case in point: LoveFilm vs Netflix

I've been meaning to try out both LoveFilm and Netflix for a while. I got doorstepped by a very cold lass from LoveFilm last week, and I took pity on her and said yes to her three months for the price of one trial. Then, for the sake of comparison, tonight I also signed up for the Netflix trial. So far so good - let see how they compare.

Netflix outdoes LoveFilm for sheer creepiness. Once I log in on the PC, it automatically logs me on the PS3. I'm assuming it just uses my IP address to identify me, but it's creepy as hell.

In terms of content, they both suck in slightly different ways. LoveFilm doesn't have films which I would expect it to have (but Netflix does), Neflix doesn't have some TV shows that LoveFilm does. Neither of them has one of the shows I really want to see - or rather, Netflix does, but only in the US.

Perhaps the most ridiculous way in which they both fail is technically. The LoveFilm app on the PS3 crashes any time the network connection slows down. Netflix refuses to work on Linux (but will allegedly work on a Chromebook). Netflix doesn't seem to have an easily identifiable way to queue things to watch in future. LoveFilm has a vaguely useful Watchlist functionality on the PC interface... which does not seem to be available in the PS3 app. I don't even. WHAT?

Case in point: The National Hockey League

If you happen to live in the UK and want to watch NHL games now that the lockout is over, you're screwed. There's some sort of obscure, paid-for channel on Sky which screens about 10 as far as I can tell random games a week, but that's about it. The NHL does have its own online streaming service which, however, only works in North America for games which your local TV network won't show. Now, as much as I do get the value of TV deals to sports organisations like the NHL, making it difficult for your fans to access your product seems somewhat counterproductive to me.

Dear Netflix, LoveFilm, NHL and co.: give me just one good reason not to go to the PirateBay!

And here of course every content provider screams, "We can't compete with free! We must shut all these naughty file sharing websites down, block them and censor them, we must disconnect file sharers from the Internet!"

Well, I've got news for you guys: You're not competing with free. You're competing with a service which meets my requirements. I have no problem paying for the things I want to watch, or the music that I want to listen to, or the books I want to read. I do it all the time. But if I'm giving you money, I expect a service that doesn't take the piss; that doesn't make it deliberately difficult for me to access the content I want to view; that actually works.

Try harder, chaps.

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

2013-01-30T09:57:57+00:00

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law. The Bill will now be submitted to the Queen for Royal Assent. It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed. However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny. The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill. It is a shame that this element of the Bill was overshadowed by the second part of the Bill. Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland. I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have). The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial). The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system. That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result. It is just one of many things to have arisen over the last few years that have caused anger. Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights. I am not a solicitor and I have not had many dealings with the Law Society of Scotland. I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints). However, it has always been something that has intrigued me about the legal profession. I’m a supporter of Trade Unions and the representative functions that they undertake. However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body). That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have. It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years. There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two). It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.

Silly burghers ban journalists from tweeting

2013-01-30T09:31:00+00:00

As far back as December 2011, the Lord Chief Justice issued guidance that allowed journalists to tweet from courtrooms.

Lord Judge's document about the use of Twitter - and all hand-held digital devices, including lap-tops - was sensible and based on the public's right to know. It said:

"A fundamental aspect of the proper administration of justice is the principle of open justice. Fair and accurate reporting of court proceedings forms part of that principle."

Of course, journalists still had to take account of the contempt of court laws that govern reporting, which was fine.

So, if the practice of tweeting in a court of law is sanctioned, then why is at least one council refusing to allow journalists to tweet from their meetings?

A reporter from the Daily Post in north Wales was banned from tweeting from a Wrexham county borough council committee meeting during a discussion on price rises for school buses. He was ordered to put his phone away.

The Post's editor, Alison Gow, responded by calling the decision "undemocratic", adding: "When you consider some local councils 'live stream' their debates, ad hoc Twitter lockdowns are crazy."

The council explained that journalists could tweet, but only if they gained permission from the chairman first. That was a clear inhibition of press freedom and Gow launched a right to tweet campaign.

A bizarre episode followed. A committee chairman gave the Post's reporter permission to tweet but banned anyone else - including his fellow councillors - from doing the same.

Post reporter Steve Bagnall, underlining the need for transparency in local government, wrote that the paper wanted everybody to have the right to use social media.

All seemed set fair for a sensible outcome… until the council debated the issue on Monday. In time-honoured bureaucratic fashion, Wrexham's silly burghers decided to set up a cross-party scrutiny committee to look into the use of Twitter, Facebook and cameras and report back in - wait for it - May.

Councillor Arfon Jones urged his colleagues to allow tweeting. He pointed out that politicians tweeted from the Welsh Assembly and from the Westminster parliament.

He also explained that Wrexham's neighbouring counties in Wales - such as Ynys Môn, Gwynedd, Conwy and Denbighshire - do not prohibit the use of social media.

But his fellow councillors wouldn't budge. Off to committee it goes and with it yet another example of the failure of people to grasp the digital revolution's democratic spirit. And democratic practice.

Sources: Daily Post/HoldTheFrontPage here and here

Roy Greenslade

Placing council services at arms length has weakened Scotland's freedom of information

2013-01-30T08:45:00+00:00

The Scottish Government has lost its opportunity to show it trusts the public with basic rights to access information

Though Scotland's Freedom of Information Act (FoISA) became operational back in January 2005, the growing use of arm's-length management companies and outsourcing agreements by Scotland's local authorities means that fewer and fewer public services are subject to the public's right to know. The Scottish Information Commissioner, for example, estimates 15,000 council tenants lost their FoISA rights through stock transfer when they became tenants of housing associations.

This loss of rights has been compounded by sustained inaction by successive ministers, culminating this month in a refusal to fix the problem, despite assertions by Scotland's Deputy First Minister that he believes "Scotland already has the most robust Freedom of Information regime in the whole of the UK".

Such flag waving is tempered by the profound disappointment of campaigners as – despite enjoying full devolved powers to legislate – the Scottish Government rejected amendments that would have ensured FoISA returned to the standard intended when passed in 2002.

Currently our right to know depends on which organisation in Scotland holds the information. Many organisations that receive public money are not covered by FoISA including around 130 arm's-length organisations created by Scotland's local councils and a number of private contracting companies.

Yet people want to access to this information, whoever delivers their public services. Research from the Scottish Information Commissioner, published in 2011, revealed 89% of the public agree it is important to be able to access information held by public authorities. They also agree that trusts providing services for local authorities (88%) and housing associations (82%) should be covered.

In 2002 the argument was won when Scottish ministers conceded that similar additional bodies would be covered using section five of the original act. "We recognise that companies involved in major PPP/PFI contracts are delivering important public services... companies that are involved in contracts of that nature – whether those relate to prisons or to matters such as road maintenance – are the sort of bodies that we want to add," they stated. A reasonable commitment, given that the long title of FoISA, is for "the disclosure of information held by Scottish public authorities or by persons providing services for them".

Progress has been made in Westminster. The government has extended the UK act to cover the Association of Chief Police Officers, the University and College Admissions Service and the Financial Ombudsman Service; it is consulting on including other bodies, such as the Law Society and Local Government Association.

Under pressure, the Scottish government decided to amend its own technical freedom of information (amendment) bill and extended coverage to a single group of arm's-length organisations which deliver council culture, sports and leisure trusts. This raises further anomalies as many of these organisations provide other services including economic development, transport, building maintenance and property services. The cultural, sport and leisure trust in Glasgow is already covered.

This bill has failed to address the reduction of rights over the last 11 years and the public's right to know continues to be determined by who delivers our public services not by what those services are, or who pays for them.

Ultimately this is a lost opportunity to demonstrate that the Scottish Government trusts the public with basic rights to access information easily, helping them live in their community, and engage with wider society.

Carole Ewart is co-convenor of the Campaign for Freedom of Information in Scotland

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Construction workers' blacklist: Cable to meet information commissioner

2013-01-29T17:17:52+00:00

Business secretary's intervention over blacklisting of workers signals growing concern among ministers

The business secretary, Vince Cable, is to meet with the information commissioner to discuss how to handle the growing scandal surrounding the "blacklisting" of thousands of construction workers and environmental activists.

In a letter to Christopher Graham, Cable said the practice, which left thousands of builders and electricians without work, was "unacceptable and illegal" and acknowledged it may still be going on. The letter, which was copied to several government departments on Monday, is a sign of the growing concern among ministers over the issue.

"I would like to meet with you to discuss how best to handle any evidence of any ongoing blacklisting that might emerge, drawing on your experience of the original investigation into the Consulting Association," Cable wrote.

More than half of the country's leading construction firms were using the blacklist run by the Consulting Association in 2009 when the operation was shut down, paying an annual £3,000-a-year subscription plus £2.20 for each blacklist check.

Many of those on the list were forced into destitution because they could not find work and earlier this week it emerged that the same organisation was running a separate blacklist on environmental campaigners in an attempt to disrupt direct action campaigns on major development projects.

Cable acknowledged in the letter that the scandal now went "well beyond the issue of blacklisting of trade union members for which I am responsible". He added: "I would welcome your view on how these matters might best be taken forward, and how best to ensure that any investigations by different authorities are best co-ordinated."

The information commissioner carried out the investigation into the Consulting Association in 2009. In parliament last week it was described as a "secret, insidious, shameful practice" and there were allegations that the police and security services had supplied information.

Ian Kerr, chief officer of the Consulting Association, told the Scottish affairs committee last year that firms had used the blacklist in relation to series of high-profile public projects including the Olympic Park, Portcullis House in Westminster, the Admiralty, the Ministry of Defence HQ in Whitehall and Wembley stadium.

Kerr, who had been monitoring trade unionists and political activists for more than 30 years, said construction firms had also wanted information on environmental protesters after being "badly hit" by their campaigns at high-profile road building projects in the 1990s.

On Tuesday, the shadow business secretary, Chuka Umunna, welcomed the decision by Cable to meet the information commissioner and he called on anyone with any information to contact the Scottish affairs committee.

"It is welcome that the government has recognised the need for blacklisting to be looked into further – this is precisely why Labour called for a full investigation in our opposition day debate in the House of Commons last week.

"We will work alongside ministers to ensure blacklisting allegations are fully investigated and to examine what changes are needed to strengthen the law against blacklisting so that this scandal is never repeated again."

Matthew Taylor

Data Protection Day divides London’s DP community

2013-01-29T10:58:36+00:00

Yesterday’s ‘Data Protection Day’ was celebrated by London’s Data Protection community assembling at a variety of venues to discuss the obvious. Just like Washington DC, this town evidently isn’t large enough to host a single gathering. From the Gherkin, where Rosemary Jay’s latest book was launched, to New Street Square, where others assembled for free drinks nibbles, and to a host of smaller bars, the talk was pretty much the same.

The proposed Regulation: what form a new legal instrument might take, when it might be passed, and what might be in it.

Some discussions referred to last week’s Computers, Privacy & Data Protection conference in Brussels. A few of the more quotable quotes that have emerged from that event, which are worthy of further discussion are:

“We are in a climate of increasing co-operation between national authorities throughout the world. The challenges are switching from talking together to working together and achieving results together” Deputy Information Commissioner David Smith.

“There are legal restrictions on what we can share with other authorities” Deputy Information Commissioner David Smith when explaining some of the practical difficulties that face the ICO when working with other regulators to investigate certain DPA offences.

“The vacuum cleaner operates at full bandwidth” Gordon Nardell QC, when explaining how American intelligence agencies allegedly acquire internet data on people who are not US citizens.

“Harmonisation cannot be seen as an aim in itself. You need clarity before its implemented” Christopher Woolf, Future of Privacy Forum.

"You can’t have an EU right to be forgotten and a Member States right to remember” Professor Gerrit Hornung, Passau University, commenting on the problem that fragmentation may bring if certain legal powers are not transferred to a central body.

“Publishing all privacy impact assessments could mean that the assessments are reduced to boilerplate. PIAs must be able to be modified to allow for an element of retrospection.” Jean Gonie, Microsoft, commenting on the need for data controllers to be able to hold private discussions on the potential privacy implications of certain initiatives before a decision is taken on which option to adopt.

“The Aretha Franklin approach to respect” Gordon Nardell QC, when describing the UK Government’s approach to respecting an individual’s right to privacy. (Aretha’s refrain throughout the song is ‘Respect – just a little bit’)

“We don’t want growth without principles. But we don’t want principles without growth”. Anonymous panellist.

“Privacy by Design is the ‘sustainable development’ of this era – no-one really knows what it means” Anonymous panellist.

“I’ll just stop for the sake of time” Anonymous panelist.

Image credit:

http://williamsportmd.gov/images/fireworks4.jpg

EU Study calls for better privacy protection in the Cloud and more transparency re USA’s surveillance laws

2013-01-28T11:48:33+00:00

Happy Data Protection Day.

What better time for the European Parliament to publish a report that calls for moreÂ "legal certainty in jurisdiction-spanning transfers of data involving a multiplicity of data controllers and processorsâ?? and for theÂ Safe Harbor AgreementÂ to be extended toÂ Cloud Service providers based in the USA.

In a passage that will get all the headlines, the Report also calls for more transparency in relation to how law enforcement agencies in third countries (but in particular the USA) will use their surveillance powers to access personal data, heldÂ in the Cloud, about data subjects who are not their citizens.

The Report states that â??The challenges of privacy and data protection in a cloud context are clearly underestimated, if not ignored. In most European for a dealing with cybercrime, Data Protection laws appear to be very marginal in the agenda and inadequately addressed to meet the challenges raised by cloud computingâ??. That is why â??Data Protection offences should be recognized as a type of "Cybercrime".

The Report claims that as the Data Protection Directive 95/46/EC and the Proposal for a General Data Protection Regulation "do not apply to law enforcement activitiesâ?? (unlike the UK data protection law which does apply to policing and law enforcement) there is a need for â??a harmonization of fundamental legal concepts such as 'jurisdiction', 'data processor' and 'data controller' at EU levelâ??.

The Report claimsÂ â??Such harmonization would decrease conflicts of laws and would contribute towards more legal certainty for the data subject/consumer as regards the applicable lawâ??.

The Report also claims that â??the EU-US Safe Harbour Principles which allow transfers of data to US organizations does not apply to telecommunication common carriers which also provide cloud computing servicesâ??.

Consequently, the â??study recommends that Safe Harbour Certification are checked and reinforced. The 'Safe Harbor' principle should also apply to telecommunication common carriers which also provide cloud computing servicesâ??.

With respect to Homeland Security, the Report states that â??Particular attention should be given to US law that authorizes the surveillance of Cloud data of non-US residentsâ??. Consequently the European Parliament â??should consider amending the DP Regulation to require prominent warnings to individual data subjects (of vulnerability to political surveillance) before EU Cloud data is exported to US jurisdictionâ??.

In general â??No data subject should be left unaware if sensitive data about them is exposed to a 3rd country's surveillance apparatus. The existing derogations must be dis-applied for Cloud because of the systemic risk of loss of data sovereignty. The EU should open new negotiations with the US for recognition of a human right to privacy which grants Europeans equal protections in US courtsâ??.

Finally a different topic: if you are looking for a data protection day present for yourselfÂ why not consider a copy Rosemary Jayâ??s Fourth Edition of her Data Protection Law and Practice which is officially launched today. At 1330 pages, it is the obvious book to have if ever you are asked that â??Desert Islandâ?? question.

References:

EUâ??s Cloud Report http://www.europarl.europa.eu/committees/en/libe/studiesdownload.html?languageDocument=EN&file=79050

Details of Rosemary Jayâ??s book (the Fourth Edition of Data Protection law and Practice) can be downloaded here: Link at bottom of; http://amberhawk.typepad.com/amberhawk/2013/01/european-parliament-mauls-the-data-protection-regulation-enhanced-protection-for-data-subjects-and-fettering-of-commission.html

Debate on future of FOI

2013-01-26T15:25:36+00:00

FOI Man comments on this week’s Westminster Hall debate on the future of FOI

This week there was a debate on the future of FOI following the post-legislative scrutiny. I have to admit that until it was already upon us, I had been unaware that it was happening. But I clearly wasn’t alone. Four MPs turned up, one of whom was Sir Alan Beith, who chaired the post-legislative scrutiny process, and another of which was the Minister responding for the Government, Helen Grant. So not really a debate so much as a friendly chat over coffee. Hopefully this is not a reflection of the worth MPs attach to FOI. (After all, the FOI debate was being run against a debate on another hot topic on everyone’s minds, reducing the voting age to 16…)

The Minister reiterated Government plans, set out in December in its response to the post-legislative scrutiny, to look at including more activities within the “acceptable limit” that can be used to refuse FOI requests on grounds of cost. She also referred to possible plans to limit “industrial” scale request making. Sir Alan was rightly critical of these proposals. Others have written about the potential impact of these changes, and you can read what the Save FOI Campaign thinks about it on their website.

We’re in the period of the phony war at the moment. The Government is preparing proposals, but we don’t yet know what the detail will be. Any firm proposal will need to be consulted upon before being enacted through amendments to regulations, so we’re a way off any change to the limits on FOI requests yet. This probably explains the low attendance at the Westminster Hall debate, but there’s still some fighting to do to save FOI from potentially damaging reform.

The Struggle Continues

2013-01-26T12:28:24+00:00

Those of us who feel strongly about the value of public sector transparency, and the Freedom of Information Act 2000 (FOIA), might make the mistake of thinking that everyone, incuding our elected representatives, feels the same. However, a Westminster Hall Debate on the 24 January suggests the post-legislative scrutiny of FOIA is not the most pressing of issues in the eyes of MPs: only a handful attended

As the opening speaker, Alan Beith (who also chaired the Justice Committee scrutiny sessions) said, this might have been because another important debate was taking simultaneously taking place in the Commons, on extending the franchise. Nonetheless, as previous experiences have shown, it is important that those of us who care about the subject remain vigilant.

For interesting analyses of the debate I would point you to excellent pieces by Alistair Sloan, and Matt Burgess (Matt did two pieces) on which I gratefully draw. As they show, the key contributor to the debate was by Helen Grant, Parliamentary Under-Secretary of State for Justice, speaking on behalf of the government. As saveFOI and other commentators have expected, and as the Ministry of Justice’s response to the Justice Committee’s report indicated, the government is looking at some potentially illiberal amendments to FOIA.

She spoke of “disproportionate burdens” caused by “industrial users” of the Act

We cannot ignore concerns raised about the burdens it imposes on public authorities, this is especially important in the current challenging and very difficult financial climate and at a time when more Freedom of Information requests than ever before are being received…We will also consider…ways to reduce burdens in a fair and proportionate way, including addressing where one person or a group of peoples use the act to make unrelated requests to the same public authority so frequently that it brings an inappropriate burden.

On one view this is not greatly exceptionable. The issue of vexatious requests, by vexatious requesters, is a problem for defenders of the Act, and the Information Commissioner and Information Tribunal arguably take different approaches to these cases. Forthcoming decisions by the Upper Tribunal may bring some clarity. However, as Matt suggests, within the category of a “person or a group of peoples [using] the act to make unrelated requests to the same public authority…frequently” could fall journalists, campaigners and local active citizens. Any changes which threaten the ability of these and other groups properly to hold public authorities to account will be vigorously opposed.

Ms Grant also confirmed that the government is looking at reducing the section12 minimum cost limit beyond which requests need not be dealt with, while introducing an effective “thinking time” provision. As Maurice Frankel, of the Campaign for Freedom of Information, told the Telegraph

Any request raising new or challenging issues is bound to require significant thinking time at first and be liable to be refused under these proposals. Authorities should not be protected from having to think about new issues, that’s a recipe for stagnation.

There was also suggestion that the use of the bludgeoning ministerial veto will be reviewed, not to see if it can be used less, but if its use might be extended beyond the “normal” usage relating to cabinet discussions (“there is no limitation in the Freedom of Information Act itself which prevents the veto being used for other information”).

So, despite the supportive words of Alan Beith – long a friend of freedom of information – and some of the few other MPs who turned up, it seems, as Paul Gibbons warned in our last post, that “the Government has decided to take its own course on FOI”.

‘Thinking time’ and Freedom of Information

2013-01-25T10:11:55+00:00

Yesterday a debate was held in Westminster Hall on the Government’s response to the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000. The debate was very poorly attended by MPs; but those few who did ensured a good quality debate was had.

Of concern though was the government’s response; and in particular its continued desire to see how it could include “thinking time” into the cost calculations under section 12 of the Act. Most are agreed that including such time into the cost calculations would significantly damage the Freedom of Information Act. Including such time into the cost calculations would not help reduce the burden of “frivolous” or “vexatious requests” as they are most likely to be simple requests which require little time. The requests they would affect are the ones where the public interest has to be considered; and in particular, those requests where the public interest is finely balanced.

We would begin to see more requests being refused simply because the complexity of establishing exactly where the public interest lies will take too long; that will undoubtedly mean information which could expose wrongdoing or corruption in public office is not released. That would fundamentally undermine the Act.

Another example of requests that might be covered are ones which produce a significant volume of information. Imagine another MPs expenses type request which produces volumes of recorded information. The information could easily be retrieved within existing cost limits; but when thinking time becomes included in the request such a request would be refused (not necessarily because it’s difficult to establish where the public interest lies, but because each piece of recorded information has to be considered for disclosure).

Allowing thinking time will also create a disparity between public authorities. It’s a subjective thing that is not easy to consider objectively. One FOI officer might be able to read the same document much more quickly than another FOI officer.

The introduction of “thinking time” would fundamentally undermine and significantly damage the FOIA and must be rigorously opposed by Parliament to ensure that the record of the FOIA as a strong piece of legislation is not destroyed.

In the words of Iain Gray MSP in a recent debate on FOI in the Scottish Parliament; “No Government likes FOI. FOI is always inconvenient, but it is the right thing.” The UK Government may not like FOI, but it is the right thing to do and they must not be allowed to weaken the Act.

Are You Now, or Have You Ever Been

2013-01-25T09:33:11+00:00

The Labour Party’s recent – if belated – interest in the Consulting Association is a good thing. The late Ian Kerr ran a secret blacklist for a range of big-name construction companies, and there is simply no defence for what he and they did. The fundamental principle of Data Protection is fairness, and fairness is not just about the general notion of being equal and proportionate – the DPA specifically requires organisations to inform individuals about how their data is used. Even if the construction industry needed a quick central system for checking the reliability of casual employees, it would be vital for workers to know about and have access to it to ensure that the facts were correct and the decisions justifiable. The secret nature of the system, of course, was to cover the real aim of rooting out people who might ask awkward questions about health and safety or working conditions.

It is hard to imagine anything more squalid than a hugely successful industry – bloated with public sector contracts and many establishment connections – targeting ordinary working people who want to prevent deaths, accidents and unfair working practices. This activity is a stain on their reputations and they must not be allowed to forget it. The anger directed by unions, Liberty and individual workers is justified. The fact that the construction companies escaped largely unpunished is a scandal. The chief responsibility for this disgraceful business lies at their door.

However, much of the ire is bizarrely directed at the Information Commissioner. Despite his cack-handed defence on the Today programme, the current Commissioner Christopher Graham is not to blame for the construction companies’ apparent impunity, nor is his predecessor. I think Richard Thomas’ tenure as Information Commissioner was fairly disastrous (especially for FOI), but the Consulting Association prosecution was possibly the biggest success of his time in the job. Few of the criticisms hold any water. Unions have demanded that the entire CA database should be handed over to them – using publicity and FOI to achieve this. This would be a breach of the Data Protection Act. The ICO obtained the database as part of an investigation, and whatever the motives of the unions, it would be unfair to every person on that list for their information to be given out to every angry union that demands it.

The ICO has also been criticised for not proactively contacting all of the people on the list. As someone who already thinks that the ICO does not put enough resources into enforcement, the idea that they would spend the doubtless huge sums of money contacting thousands of people (after sorting through the information to identify them properly) is ludicrous. The ICO is not there to help people pursue claims – they are there to enforce the law, not to take sides and support individual actions. It was their job to take on the problem – they did that.

The biggest criticism levelled against the ICO is the lack of prosecutions for the construction companies. The Unions and various Labour figures have been loud and self-righteous in their outrage over the perceived lack of action. The £5000 fine for Kerr was paltry, and the enforcement notices issued to the construction companies lacked the required sting. But all of this is Labour’s fault. Exposing Kerr and seizing his database was the most the ICO could do – as his operation depended on secrecy, the raid killed it. The only criminal offence that the ICO could charge Kerr with was non-notification and the maximum penalty for non-notification was £5000. It was not a criminal breach of the Data Protection Act to run or use a blacklist when the construction companies encouraged Kerr to do so and paid his bills and fine for him. In 2009, the ICO did not have the power to issue Civil Monetary Penalties. No regulator can prosecute without a specific offence, and there were no offences on the statute book. His current CMP powers are not retrospective, and if they should have been, it was Labour’s decision not to make that happen.

It’s easy to attack the ‘disgraceful belligerence’ of Chris Graham’s performance on Today, as Val Shawcross, a Labour London Assembly Member, did on Twitter. Jessica Asato, prospective Labour candidate in Norwich, does the same on Labour List: “Scandalously, when prosecution was sought for Ian Kerr the CEO of the Consulting Association (and apparently a previous employee of the Economic League) he was only fined £5000 for data protection issues and none of the firms who paid for the information were fined at all.” If this is a scandal, it is a scandal that Asato’s party devised. A fine for the companies was more or less impossible, unless the ICO also prosecuted them for not notifying their use of the CA database. The maximum fine would have been £5000, even if the prosecution had been successful.

The Data Protection Act 1998 and its associated regulations were created and passed by a Labour Government. If the ICO’s response – the strongest possible legal response – was inadequate, it was because the Blair and Brown governments made it that way. Breaches of data protection had no adequate punishment until the shambolic data handling within Government embarrassed Brown into a U-turn. Labour still backed away from making data theft an imprisonable offence under pressure for the Daily Mail, and even now, Section 63 even makes it impossible for the ICO to prosecute the Government or the Royal Household for a criminal DPA breach. Any union, any worker, any ambitious politician who wants to raise the issue of why the construction companies got out of jail free cannot go after the ICO, and they are being dishonest if they do.

Chuka Ummuna, the Shadow Business Secretary, is making a lot of what is an unfashionable issue and he deserves credit for doing so. He wasn’t an MP when Labour set Data Protection up without any teeth, and so his hands are fairly clean. Nevertheless, I can’t help thinking that the party’s enthusiasm for the issue now might have something to do with the fact that they are no longer in government making decisions, and awarding humongous PFI contracts to the businesses that were guilty of the ‘affront to justice’ that Asato finds so offensive.

One strong element of Asato’s article still rings true, and brings us round (inevitably) to the part of this post which allows me to revert to type and have a dig at the Commissioner. She points out that blacklisting and stigmatising of union and other activists in construction is an ancient business, going back to the founding of the McCarthy-like Economic League in the 1920s. I think it’s safe to assume that there is a version of the Consulting Association running right now. Kerr is dead, but the idea that a practice that is at least 90 years old will suddenly stop because it was exposed is idiotic. Panorama exposed the League in 1994 and blacklisting didn’t die then. Deputy Commissioner David Smith sets out the ICO’s approach to the Consulting Association fairly on the office’s website, but he loses credibility with this unnecessary final flourish:

“The construction blacklist remains a black spot on the history of employment in this country. While the work to close it down is long completed, our work to help those whose lives were affected by the blacklist continues.“

Everyone involved in the Consulting Association case should be proud of the good work they did. If I was a very suspicious person, I would wonder whether Labour and the Unions see the ICO as a convenient whipping boy to cover up their own failings on this matter. But I support Asato when she says that the work on closing down blacklists is almost certainly not over. Rather than attacking the ICO for doing the right thing, workers, unions, politicians and advocates for better Data Protection should chide the ICO for resting on its laurels. It should be knocking on doors across the construction industry and demanding evidence that the 2009 enforcement notices – which have presumably not been withdrawn – are still being complied with. The stick they wield now is a lot bigger, and they should not persuade themselves that they don’t need to use it.

Filed under: Blacklists, Data Protection, ICO, Labour Party Tagged: Blacklists, Consulting Association, Data Protection, Labour

ICO continues to wield the fining stick

2013-01-24T10:57:54+00:00

It’s official. We Brits have given up on winning the Eurovision Song Contest. We may still compete, but in our hearts we know we won’t win. However fear not, our proud nation has set its sights on winning another contest – the Eurodatabreach Fining Contest.

Our proud champions in Wilmslow have spent the last year limbering up and have started to levy fines that are calculated to impress even the Spanish Data Protection regulator.

Where will it end?

I’m not quite sure.

They ought to encourage a great deal more compliance. Fear matters.

And many more data controllers will be adding the ICO's David Smith to their Christmas card list, I guess.

But, if I had my way, in addition to monetary penalties, Chief Executives of organisations found to have shoddy data protection practices should be required, as well as washing all the cars in the ICO’s car park, to write out the following ditty 100 times:

From the dongles I’ve tossed in the can, from the servers in Japan
From me mam to my gran, ev'ry woman, ev'ry man

OMG
I despair
Data keeps escaping everywhere

So hit me your fining stick, hit me, hit me
Je t'adore, ich liebe dich, hit me, hit me, hit me
Hit me with your fining stick
Hit me slowly, hit me quick
Hit me, hit me, hit me

Take our money if you must
Remember we’re a charitable trust
Show the world that you're no phoney
But don’t fine us as much as you’ve fined Sony

Source:
http://www.ico.gov.uk/news/latest_news/2013/ico-news-release-2013.aspx

Image credit:
http://www.noumic.com/stick.jpg

.

Data watchdog fines Sony £250,000 over PlayStation ID hack

2013-01-24T10:45:00+00:00

Information commissioner fines company for security failures after millions of gamers' details were leaked online in 2011

Sony Computer Entertainment has been fined a record £250,000 by the data protection watchdog after the personal details of millions of gamers – including passwords and credit card numbers – were leaked online.

The privacy blunder happened in April 2011, when computer hackers targeted the Sony PlayStation Network.

The Information Commissioner's Office on Thursday said the security breach was "one of the most serious" it has handled under the Data Protection Act. The £250,000 fine is the maximum penalty awarded by the ICO against a private company.

"There's no disguising that this is a business that should have known better. It is a company that trades on its technical expertise, and there's no doubt in my mind that they had access to both the technical knowledge and the resources to keep this information safe," said David Smith, the ICO's deputy commissioner and director of data protection.

The watchdog said millions of customers were exposed to the risk of identity theft after their names, addresses, email addresses, dates of birth and account passwords were leaked online.

The ICO launched an investigation into the leak immediately after the hack in April 2011. It concluded on Thursday that the attack could have been prevented if Sony's software had been up to date, and separately found that passwords were not handled securely by the games giant.

The security breach was a huge blow for Sony, forcing its then chief executive, Sir Howard Stringer, into a humble apology and causing its share price to tumble as investors worried about the ultimate cost of the hack.

The £250,000 fine is the third largest penalty ever imposed by the ICO, with only two local authorities fined more than Sony.

Smith said: "If you are responsible for so many payment card details and log-in details then keeping that personal data secure has to be your priority. In this case that just didn't happen, and when the database was targeted – albeit in a determined criminal attack – the security measures in place were simply not good enough.

"The penalty we've issued today is clearly substantial, but we make no apologies for that. The case is one of the most serious ever reported to us. It directly affected a huge number of consumers, and at the very least put them at risk of identity theft."

The ICO did not reveal how many gamers it believes were affected by the security breach. At the time, it was estimated that as many as 100 million users may have been impacted.

It is not known who was responsible for the hack, described by the ICO as a "focused and determined criminal attack" on Sony's network. The hacking group Anonymous denied that it was involved back in May 2011, after reports quoted some members as admitting responsibility.

The data protection body said the attackers exploited a "vulnerability" in Sony's network following several distributed denial of service (DDoS) attacks, which overwhelmed Sony's network by flooding it with requests to load information.

The Japanese electronics giant failed to address the vulnerability even after it had spotted the unauthorised access on 19 April 2011, according to the ICO. It said that the Sony network had now been completely rebuilt.

Sony responded robustly to the fine, saying it "strongly disagreed" with the ruling and planned to appeal.

It added in a statement: "Criminal attacks on electronic networks are a real and growing aspect of 21st century life and Sony continually works to strengthen our systems, building in multiple layers of defence and working to make our networks safe, secure and resilient.

"The reliability of our network services and the security of our consumers' information are of the utmost importance to us, and we are appreciative that our network services are used by even more people around the world today than at the time of the criminal attack."

The company pointed out that the ICO found in its investigation that the "personal data is unlikely to have been used for fraudulent purposes" and that there was no evidence that encrypted payment card details were accessed.

Josh Halliday

Soundbites from the CPDP conference

2013-01-24T10:42:28+00:00

On the Regulation:

“[It] is not the most appropriate way to proceed… [It] contains some good ideas but they need a lot more work … we should bring in a whole bunch of new people with more expertise.” Toomas Hendrik Ilves, President of the Republic of Estonia

“What will happen in 2013 is a defining moment for the proposal . It’s very challenging, but we hope to reach a political compromise by the end of the year.” Francois le Bail, Director General DG Justice

“Core fundamental rights are not negotiable.” Jan Philipp Albrecht, MEP

“Data protection is not necessarily a Holy Grail if it provides a fig leaf for a lack of transparency in EU spending. No public money must be spent anonymously. Data protection means we don’t know where Common Agricultural Policy funds go – and these make up 40% of the EU’s budget.” Toomas Hendrik Ilves, President of the Republic of Estonia

“[It] means we could be putting our application developers to a distinct disadvantage to those outside the EU… It will kill certain industries in the EU but this will come with no benefit, as these developers will simply move offshore. Toomas Hendrik Ilves, President of the Republic of Estonia

“We must not have a regulation that stifles innovation and puts such a burden on businesses.” Francois le Bail, Director General DG Justice

“The last thing we want is for the Commission to intervene all the time – but we want to make sure the decisions taken by the [Data Protection] Board are in conformity with the Regulation.” Francois le Bail, Director General DG Justice

“Consent is only one of several grounds for allowing for the lawful processing of personal data – presumably the one you use when no other grounds apply.” Francois le Bail, Director General DG Justice

“It is not the intention to limit international transfers of data.” Francois le Bail, Director General DG Justice

“We are ready to fight to give control back to consumers.” Kostas Rossoglou, BEUC

“Our role is not to facilitate more US business in Europe, but to encourage European innovation… We are very unhappy at the aggressive lobbying carried out by US firms in Brussels.” Kostas Rossoglou, BEUC

“Trust is good. Control is better”. Sophie In’t Veld MEP

On Cybercrime:

“You know how successful we have been at stopping physical crime, so you can guess how successful we are likely to be in relation to cybercrime… It is attractive to be a cyber criminal. The risks of getting caught are low and the potential rewards are very high.” Troels Oerting, Director of the European Cybercrime Centre at EUROPOL

“You are an old school loser if you are still planning a career in physical crime…. Hackers in China are paid by the gigabyte for what they are doing… The best way to improve infrastructure is by naming and shaming.” Bart Jacobs, professor of Software Security and Correctness, Radboud University, Nijmegen

“By a [EU/US] special relationship we mean circumventing due process.” Simon Davies, Privacy Surgeon

On Privacy:

“Privacy is so easy to look at and so hard to define”. Peter Swire, Moritz College of Law of Ohio State University

Cameron’s speech puts UK accession to any Data Protection Regulation and Directive in doubt.

2013-01-24T09:40:08+00:00

In yesterdayâ??s speech on the relationship between the UK and the Europe Union, the Prime Minister has raised doubts as to whether the UK will adopt both the proposed Data Protection Regulation and the Data Protection Directive in the field of law enforcement.

Reading the runes:Â if the Conservatives win the next General Election, I think that implementation of both Regulation and DirectiveÂ is unlikely.

Why am I saying this? First, the Conservatives are going to consult business about the EU Regulations they want to keep; how many businesses do you think will respond with â??Well that nice Data Protection Regulation is top of my listâ???

Then look at the timings: Election in 2014/15; any referendum is in 2017,Â negotiations with the EU in 2015-2017 and the (optimistic) commencement of the Regulation is 2016. This is smack in the middle of the negotiations which means the Regulation is an obvious target for negotiations.

Finally, the Conservatives are to look at what competences they want to return. So consider the notion of â??return of competencesâ?? in the context of the following extracts from the PMâ??s speech, intertwined with the commentary on the Directive and Regulation released last week (see last weekâ??s blog).

In his speech, the PM said: â??There is a crisis of European competitiveness, as other nations across the world soar aheadâ??. In its criticism of the Data Protection Regulation, the Government state that it â??is seriously concerned about the potential economic impact of the proposed Regulation. At a time when the Eurozone appears to be slipping back into recession, reducing the regulatory burden to secure growth must be the priority for all Member Statesâ??.

In his speech, the PM said: â??And I want us to be pushing to exempt Europe's smallest entrepreneurial companies from more EU Directivesâ??. In the criticism of the Data Protection Regulation, the Government state â??At a time when the Eurozone appears to be slipping back into recession, reducing the regulatory burden to secure growth must be the priority for all Member States. It is therefore difficult to justify the extra red-tape and tick box compliance that the proposal representsâ??. In addition, â??we estimate the costs for UK small businesses of simply demonstrating compliance with the proposals to be around Â£10 millionâ?? (in 2012â??13 earnings terms) and in terms of the â??whole economy of Â£100â??Â£360 million per annum (in 2012â??13 earnings terms)â??.

In his speech, the PM said: â??In Britain we have already launched our balance of competences review â?? to give us an informed and objective analysis of where the EU helps and where it hampersâ??. In the criticism of the Data Protection Regulation, the Government state that â??the Governmentâ??s position that the proposed Regulation should be re-castâ?? to â??allow for harmonisation in the areas where it is advantageous and flexibility for Member States where it is requiredâ?? and that â??the proposed Regulation places prescriptive obligations upon data controllersâ??.

In his speech, the PM said: â??Let us not be misled by the fallacy that a deep and workable single market requires everything to be harmonised, to hanker after some unattainable and infinitely level playing fieldâ??. In the criticism of the Data Protection Regulation: â??...This is a â??one size fits allâ?? approach which does not allow data controllers (from small online retailers to multinational Internet companies) to adopt their own practices in order to ensure compliance with the legislationâ??.

In his speech, the PM said: â??Some of this antipathy about Europe in general really relates of course to the European Court of Human Rights, rather than the EU. And Britain is leading European efforts to address thisâ??. This is undisguised code for the UK withdrawing support from the European Convention of Human Rights in favour of a localised UK Bill of Rights which is very likely to weaken the obligation to respect â??private and family lifeâ?? by allowing more flexible interference by public authorities.

In his speech, the PM said: that the Government was â??Launching a process to return some existing justice and home affairs powersâ??. In the criticism of the law enforcement Data Protection Directive, the Government said that it â??does not consider that full harmonisation of police and judicial co-operation in criminal matters is necessary or desirableâ??. This is because â??introducing prescriptive requirements for domestic processing may instead have a detrimental effect on law enforcement operations, placing onerous burdens on data controllers and huge costs on public authoritiesâ??.

In summary: I think it is clear that the Government sees the Data Protection Regulation primarily as a burden on business;Â if the other Member States don't change its text, then the Regulation isÂ very likely to be a candidate for an opt-out.Â In the promised referendum, if UK voters decide the leave the EU, then Iitâ??s also good-bye to the Regulation. Either way, its bye-bye.

In any event, it is clear thatÂ the UK wants nothing to do with the Data Protection Directive in the field of law enforcement. That is definitely â??toastâ?? if there is a Conservative Government after the next Election.

References:

â??Scale of UK Governmentâ??s opposition to the proposed Data Protection Regulation and Directive made absolutely clearâ??. http://amberhawk.typepad.com/amberhawk/2013/01/scale-of-uk-governments-opposition-to-the-proposed-data-protection-regulation-and-directive-made-abs.html

Listen to the Prime Minister's speech: http://www.bbc.co.uk/news/uk-politics-21156905

Media Update - 1st to 14th January 2014

2013-01-21T17:27:54+00:00

HMRC: taxman increasingly 'snooping' on taxpayers - The Telegraph - 14.01.13
Figures obtained under Freedom of Information show HMRC officials made almost 14,400 authorised views of "communications data" on taxpayers during tax evasion investigations in the past year. This equates to a rise of almost 25% on 2010 figures. It is not clear how many times the surveillance has led to a successful prosecution for tax evasion or whether those found to be innocent are told that they have been spied upon.

City sackings soar as FSA cracks down - The Independent - 14.01.13
Sackings and suspensions hit a five-year high in the City last year, as the financial crisis continued to take its toll on employment amid a clampdown on wrongdoing by the regulator. Law firm Pinsent Masons sourced figures through a freedom of information request.

Sharp fall in young police officers - BBC - 13.01.13
The number of young police officers in England and Wales has fallen by nearly 50% in two years. Overall police numbers hit an nine-year low in 2012, due to tighter budget constraints slowing recruitment, but data obtained in a Freedom of Information request by the BBC shows how much of that fall has been among younger officers.

Information commissioner backtracks on naming salmon farms that kill seals after 'death threat' - Herald Scotland - 13.01.13
In a rare move, the Scottish Information Commissioner has reopened her investigation into the issue of forcing ministers to name salmon farms that shoot seals to stop them eating fish. The Commissioner has now given ministers until the end of the month to provide hard evidence of the risks to property and people that are claimed to exist from animal welfare campaigners should the farms be named. She will then consider whether to enforce her decision, which originally demanded seal-shooting salmon farms be identified by 10th January.

Stirling university researcher claims safety regime policy is risky - BBC - 11.01.13
A Stirling university researcher has claimed government policy on safety is putting lives at risk in the work place. Prof Rory O'Neill used Freedom of Information requests and Health and Safety Executive reports to compile a list of sectors excluded from unannounced HSE inspections.

How to follow the public money in a privatised NHS - The Guardian - 09.01.13
Without basic financial transparency from public service contractors we can say goodbye to democratic accountability.

[Note: In this Comment piece Zoe Williams urges readers to request their MP's to sign an early day motion (EDM) calling for private companies with NHS contracts to be subject to the Freedom of Information Act. The MP responsible for introducing the EDM, Grahame Morris (Labour) responds in The Guardian Letters 10.01.13 here.]

10,000 truancy convictions in a year - Daily Express - 08.01.13
Record numbers of parents are being convicted for allowing their children to play truant from school, new figures obtained from the Ministry of Justice under the Freedom of Information Act reveal.

Violent school pupils attack 900 London teachers a year - London Evening Standard - 07.01.13
Teachers in London have suffered more than 4,000 assaults from pupils over the past five years. The scale of violence is shown in figures obtained by the Evening Standard under the Freedom of Information Act.

Abuse and neglect complaints increase in Essex care homes - BBC - 07.01.13
Allegations of abuse of elderly people in Essex care homes have risen by more than 300 in a year, a BBC Freedom of Information request revealed. The allegations total 1,398 in 2011-12, up from 1,045 in 2010-11. The council said 299 allegations of abuse had been upheld in 2011/12 up from 149 in 2010/11.

20-year rule comes into force - Wired-gov - 04.01.13
As of 1st January 2013, the government has begun its move towards releasing records when they are 20 years old, instead of 30. During 2013 The National Archives will receive records from 1983 and 1984. Then, two further years worth of government records will be transferred each year until 2023 when the Archive will receive records from 2003.

Cuts fail to halt first-class travel for profligate public sector - Yorkshire Post - 05.01.13
Councils and NHS hospitals are spending thousands of pounds on first-class rail tickets for senior executives despite the biggest squeeze on public spending in living memory. Figures released under the Freedom of Information Act revealed at least five of Yorkshire's 22 councils and four of its NHS hospital trusts spent taxpayers' money on first-class rail fares during 2011/12, though most public bodies in the region said it was strictly against their guidelines to pay for their staff to travel first class.

£5,000 cost to 'design' controversial Fenland sign - Peterborough Telegraph - 04.01.13
Concern has been raised over the use of public funds after the Highways Agency spent £5,000 designing a road sign for a Fenland Village.

Revealed: Deaths during childbirth are on the rise - Herald Scotland - 04.01.13
More than 40 women have died as a result of childbirth in Scotland in the past decade and the number of fatalities appears to be rising. The figures, obtained by the Herald using Freedom of Information legislation, show the number of mothers killed by complications linked to pregnancy and delivery doubled in five years. NHS officials initially refused to reveal the figures and only released the information after an appeal was lodged.

Ex-University of Wales vice chancellor had £20,000 pay rise - BBC - 03.01.13
Plaid Cymru has criticised a £20,000 pay rise for the former vice chancellor of the University of Wales. The salary of professor Marc Clement rose from £121,082 in 2010-11 to £140,150 the following year. He was aloso paid a "discretionary honorarium" of £10,000 in 2010-11, a freedom of information request showed. Plaid described the decision as "baffling" as it came as the University faced controversy over links to partner colleges, leading to it being effectively wound up.

MoD compensation log illustrates human cost of Afghan war - The Guardian - 01.01.13
A list obtained under Freedom of Information Act shows compensation paid by the Ministry of Defence for civilian injuries and deaths alongside frequent crop damage. The cases paint a picture of the ongoing human cost of the conflict.

Sex offender at Southend Hospital was CRB checked - BBC - 01.01.13
A known sex offender got work at a hospital despite being criminal record bureau (CRB) checked. Responding to the BBC's FOI request, the hospital said the agency worker was hired to provide optician services and saw eight children between April and June.

ICO wins historic civil monetary penalty appeal

2013-01-21T16:06:20+00:00

All credit to the Panoptican blog for being the first to report on the result of the historic Central London NHS Trust appeal before the Information Rights Tribunal. This is an appeal about the power of the ICO to issue civil monetary penalties. The decision ought to be published on the Tribunal's website shortly.

In short, and in a unanimous 35 page decision, the ICO won hands down. Data controllers, be aware. Be very aware.

What happened? Sensitive medical details were faxed to the wrong address on 45 separate occasions. In total, information about 58 people was unlawfully disclosed. After first agreeing to pay a Civil Monetary Penalty, and hoping that it would be less than £90,000, the NHS Trust then found 9 reasons why it should not pay the penalty once the Commissioner had formally decided that they should pay £90,000 (with a 20% discount for early payment). The Trust subsequently dropped one of these reasons, while the Tribunal dismissed the other 8.

Anya Proops, Counsel for the ICO argued that: "The primary purpose of the statutory penalty regime embodied in section 55A is not to ensure that contraventions are voluntarily reported when they occur but rather to penalise data controllers in circumstances where they deliberately or negligently/recklessly commit serious contraventions of the legislation, thereby promoting compliance with the Act (by that public authority and others)."

The Tribunal agreed. The key findings are:

"We ...find that a voluntary notification of a serious breach of the DPPs does not preclude the IC from investigating the breach with a view to issuing an MPN as well as taking other enforcement action.

[In relation to the other grounds of appeal] we find that the IC’s decision was in accordance with the law, and/or properly involved the exercise of his discretion."

Expect to see a wave of emails inviting you to attend emergency briefing sessions on the decision. From my perspective, there are 3 lessons that should be learnt:

Don’t use fax machines to send sensitive personal data.

Pay whatever penalty the Commissioner decides.

Think very carefully before mounting an expensive appeal which, if you are a public authority, may well only deprive service uses of even more vital resources.

Source:

http://www.panopticonblog.com/wp-content/uploads/2013/01/Central-London-NHS-Trust-v-IC-EA20120111.pdf

Image credit:
http://static.guim.co.uk/sys-images/Guardian/About/General/2009/7/15/1247686103377/Supreme-Court-of-UK-001.jpg

Mili's 5-step guide to being a great ally

2013-01-20T11:02:26+00:00

Following on from last week's rant about intersectionality and @pozorvlak's request for an explanation of solidarity "in operational terms", I thought it might be a good time to actually write up some thoughts I've been having on what makes a great ally.^[1] So here's a five-ish step guide to being a great ally.

Step 0: Can I be an ally?

No matter who you are, you can always be an ally. This is not a role reserved for the ultra-privileged straight, white, middle class man. You can be the proverbial disabled black lesbian [This link will probably make you angry.], and chances are that there is still someone out there for whom things suck harder. That's what intersectionality is all about, and ultimately that's what solidarity and being an ally is all about.

Step 1: Check your privilege

If we accept the basic premise of intersectionality - that for some people things suck harder - and we want to do something about it, the first thing we need to do is be aware of our own privilege. This will help us understand the kind of power we have, the kind of power we don't have, and who we can be an ally to. Being aware of your privilege is not some kind of point-scoring game that you win or lose. It's an exercise in self-awareness, perspective, and humility.

Here's an example. I am a member of three oppressed groups: I am female, bisexual and an immigrant. That doesn't mean that I don't have a whole bundle of privilege:

I am white.
I speak English well enough that few people can actually tell I'm an immigrant from a brief interaction.
Even as an immigrant, I am an EU citizen so I have the automatic right to live and work in this country.
I am in a relationship with someone of the opposite gender, so unless I deliberately out myself, I have assumed heterosexual privilege.
I am quite disgustingly middle class, both in background and in current living standard.
I am, as Julie Burchill would put it, "educated beyond all common sense and honesty". (I have an MA in European Politics; some day I may want to do a PhD.)
Though I'm an atheist, I am culturally Christian in a country that is dominated by cultural and historical Christianity.
I am in my early thirties.
I am (for the moment at least) able-bodied.
I am cisgendered.

Every single one of those points has a tangible impact on my day-to-day life that makes things suck less. If you want some concrete examples of how that works, the Invisible Knapsack (white privilege version, sexual orientation and gender identity version, the male privilege version) is a good place to start. It also gives me a certain amount of power and credibility with particular groups of people - it gives me a voice that someone who is not of the same group may not have.

Equally, some of these points also give me huge blind spots in my experience and view of the world. I don't know what it's like living as a non-white, or Muslim, or working class, or disabled person. Some areas are bigger blind spots than others. The closer I am to being under-privileged in a category, the more pre-existing knowledge and empathy I will have with people in that category. So even though I am a very privileged immigrant (see points 2 and 3 above) I have a relatively good understanding of what it might be like being a less privileged immigrant.

Checking our privilege allows us to start mapping out the "unknown unknowns" we have in our experience and world view so that we can begin to turn them at least into "known unknowns". It's a basic prerequisite for being an ally or showing solidarity.

Step 2: Do no harm

There are lots of ways in which we can do harm or perpetuate oppression, sometimes even with the best intentions. Probably the most common ones are denial, silencing, and dysfunctional rescuing.

Denial

A classic example of denial would be "Why do you need an LGBT group at work? Sexual orientation is not relevant to the workplace." If you're finding yourself questioning the validity of someone's experience because it's different to yours, you're probably engaging in denial. This is harmful in several ways. Even if you only engage in denial towards the target group (say, LGBT people) themselves, you are likely to upset people and maybe even cause them to question their own experience which can be very hurtful and counterproductive. If you do this in public, you are actively using the power and platform given to you by your privilege to undermine a target group.

Silencing

"We have bigger problems - we'll get to yours once we've sorted those out"; or, of course, "Transsexuals should cut it out"; or talking of "lesbians and gays" at an explicitly LGB or LGBT event. As someone more privileged you have the power to give a voice to someone else, or to silence them in all sorts of subtle and entirely unsubtle ways. Don't do it. Just like as, say, a woman you don't want men to speak for you or silence you, make sure you're not speaking for or silencing others.

Dysfunctional rescuing

This one is subtle, insidious, and much like the road to hell, paved with good intentions. In a workplace LGBT context, it might be not offering the fantastic job opportunity in Saudi Arabia to the employee you know is gay, without even consulting them. The problem with this kind of "rescuing" is that, while it is indeed well-intentioned, it rarely addresses the real underlying needs of the person or group you are trying to rescue and more often than not it robs them of their own agency.

The thing about doing no harm is that you need to accept that you will get this wrong. None of us is perfect. We will commit microaggressions and sometimes macroaggressions in thought, in words or in actions sometimes on a daily basis. There are a few things you can do to minimise the harm you do with your privilege:

Become more aware of when you might be causing harm. Think about past experiences where you think you might have got things wrong, and learn from them - don't repeat the behaviour.
When you do put your foot in it, and someone calls you out, don't get defensive. Think about it, apologise, learn from the experience. Yes, this is difficult. I get it wrong all the time. Practice. If you find yourself becoming defensive, think about the "dental hygiene approach to racism" (and other -isms).
If in doubt, shut up. For more advanced allies who may have someone they can ask, ask. But the minute you begin to doubt whether something is a good idea, put it on ice until you can validate it.

Here's an example: I've been known to use the words "just because I have a uterus" as a convenient shorthand for gender discrimination. Then I started actually paying attention when trans people on Twitter kept saying "penis != man and lack of penis != woman". Now I'm looking for a different shorthand because my previous lazy phrasing actively excludes and silences trans women and men.

Step 3: Listen!

We've already established that our privilege gives us blind spots in our world view, and that those blind spots can cause us to actively harm others and perpetuate oppression. So now that we have some "known unknowns" and we're at least trying to not do harm, we can move on to turning some of our unknowns into knowns.

There are many ways to do this. If you are a novice at being an ally to a particular group, then just listening to or reading around the current discourse in the field will give you a good grasp of the key issues, the key problems, the needs of the group, the preferred language and terminology. Thanks to the magic of the internet, we live in an age where even the most marginalised groups have ways of at least talking to each other, have a little corner of the world they can call their own where they have a voice. Google will take you to it. Any type of material, from first-person accounts like microaggressions.com to academic research can give you new insights.

Asking people from the target group about their experience is also generally a good idea. However, be aware that they may not want to talk to you about it - now or ever. While I think a lot of people will be happy to answer questions if they are respectfully and sensitively framed, they are under no obligation to educate you. Don't be discouraged if you don't get answers the first time - sometimes it's just not right for a person to share their experiences with an ally. That's fine - ask someone else, ask when a better time would be, don't give up on other ways of listening and understanding.

The act of listening and trying to understand will probably lead you to question and discard some of your assumptions - some things you thought you knew. This is a great achievement as it puts you in a position where you are less likely to do harm and more likely to be able to move on to the next step of being a great ally.

Step 4: Use your power for good

The simplest thing you can do with your power, once you have listened and understood the oppressed group, is to be the one dissenting voice among the in-group you are part of. As a straight white man, you have credibility with straight white men that a woman doesn't. As a cis woman you have credibility with other cis women that a trans woman may not. Use that to challenge prejudice, hateful language or abusive behaviour. Call out sexism, tell your friends that rape jokes are not okay, go to Pride as an ally. Those are all great ways to show solidarity.

Having said that, sometimes it may not be the right time or place to speak out. If your actions or words may put the people you are trying to be an ally to at risk or create an unsafe space for them, then consider staying silent. Also see "Do no harm" above, and this great post on being a feminist ally.

There are other things you can do to be a great ally. The rule of thumb though is that they should always be driven by the needs of the target group. You goal as an ally is to make things suck less for them. Sometimes in the short term that may be through shutting up and not drawing attention to them, while in the long term you want to ensure that you are not part of a silent majority that tolerates or commits oppression.

The more you have listened and understood the target group, the more confident you will be in challenging oppression and doing the right thing as an ally. When I speak out against the government's rhetoric on immigration - even when as a white, English-speaking EU citizen I technically count as a "good immigrant" - I speak both as an immigrant, but also as an ally of less privileged immigrants. Because of my own experiences, this is a topic I am very confident speaking out on. Ask me to comment on race issues, however, and I'm likely to look around for someone more qualified and point you in their direction. That's fine too.

Some of the best allies I have worked with will go beyond speaking out. They will proactively look for opportunities to further the target group's cause and then, in consultation with the target group, go after those opportunities. As well as accomplishing important things, this kind of behaviour can be a huge morale boost to the target group. Knowing that someone believes in you and is likely to put their personal reputation and influence on the line for you is a huge motivator. Allies like that make me work harder for my own cause as well as strive to be a better ally to others.

Step 5: Be prepared to have the difficult conversations

Every once in a while, as an ally you will be in a position where you have a better insight into how to achieve something than the target group. It may be because you have better knowledge of the privileged group, better connections, more influence. Sometimes the right thing for the target group to do may be to take a step back, to take a different approach. Those are difficult conversations to have. They can be incredibly frustrating for the target group, cause a loss of confidence or momentum. They are vitally important conversations to have, and to have respectfully and sensitively.

If you are ever in that situation, make sure that you make your commitment to the target group clear. Sometimes, from the target group point of view, it is difficult to tell whether someone is a genuine ally trying to help or just making the "right" noises while putting obstacles in your way. Make sure there is no doubt about which side you're on, and make sure to explain why you believe a certain course of action is necessary. If you have built a trusting relationship with the target group, if they have a reason to believe in you, these conversations will be a lot easier. Ultimately, though, also be prepared for your advice to not be taken, and respect that.

As an ally, you may never get beyond step 2 of this process. That is perfectly fine and you'll be doing a hell of a lot better than many others out there. I would encourage you to at least try step 3 - challenge your own assumptions and preconceptions; you will find it rewarding. How much you speak out and put yourself up as a target in the cause of being an ally is up to you, will vary by situation, and as long as you've done your homework with steps 1-3, will be greatly appreciated.

---

[1] Solidarity is a term you are more likely to hear in overtly political left-wing discourse. Ally is a term that is slightly less scary for corporate types. Operationally though there is enough of an overlap between the two concepts that I'm going to use them interchangeably. I do have a slight preference for "ally" not only because of the warm fuzzy feelings it gives corporate types but also because the nature of the word is less abstract and puts responsibility on individuals.

Intersectionality is not rocket science

2013-01-17T16:14:24+00:00

Did someone declare Transphobia Week without telling me? The torrent of vile hate speech that seems to be making its way around the Internet, from Twitter to normally at least vaguely respectable sites like Comment is Free, started earlier this week with the publication in the New Statesman of an essay by Suzanne Moore on female anger, which contained the ill-advised throw-away line

We are angry with ourselves for not being happier, not being loved properly and not having the ideal body shape - that of a Brazilian transsexual.

What does that even mean?

I watched the ensuing train wreck "live" on Twitter, as Suzanne Moore - instead of taking the high road, saying "Oops, my bad, lazy writing, sorry" and asking her editor to remove the line - degenerated into a veritable tirade of genuinely shocking hate speech. Much though I like some of Moore's writing, the comments she made were unacceptable to me, and I unfollowed her, expecting - perhaps somewhat naively - that that would be the end of the story.

Of course, the next day Moore went on the offensive in Comment is Free, and the article ended up in my Twitter feed anyway. What got me this time was the following line:

Intersectionality is good in theory, though in practice, it means that no one can speak for anyone else.

If Moore was trying for self-parody, she's right up there with the Church of England. Before we go on any further though, let me make one thing very very clear: I am a cis woman; Moore's comments are transphobic; Julie Burchill's comments, spawned by the reaction to Moore, are also transphobic; they make me feel physically sick.

But let's talk about that incredibly complex, difficult to grasp, highly theoretical concept that is intersectionality. Stavvers in another similar debate recently put it wonderfully: for some people, things suck harder. Think things suck because you're a woman? Try being black, or disabled, or non-straight, or a trans woman. Things suck harder. This does not mean that things don't suck for straight, white, able-bodied, cis women. But it does mean that for some women they suck even harder. This is not a difficult concept to wrap your head around if you have a minimum level of human empathy.

Now let's go back to Suzanne Moore's comment above: Intersectionality means that no one can speak for anyone else. Imagine the same comment being made by David Cameron; or Nick Clegg; or, frankly, any straight, white dude. Imagine a straight, white dude complaining that they weren't allowed to speak for women, or people of colour, or gay people. Suzanne Moore would be the first on the barricades. That's precisely what her original, unfortunately formulated essay that started all this is about.

When she complains about men legislating on women's reproductive freedoms, she is objecting to others speaking for her. When she complains about certain parts of the left rallying around Julian Assange, she is objecting to others speaking for her. When she complains about David Cameron telling Angela Eagle to "calm down dear", she is objecting to others speaking for her. What kind of cognitive failure does it take to write all that and then complain that intersectionality means she is not allowed to speak for other people?

There are some cases when it is appropriate to speak for others. They are few and far between, but they are there. They are those occasions when you have taken the time to truly listen and understand others. They are the occasions where your privilege - no matter how limited - gives you a voice more likely to be heard. They are the occasions when you can act as an ally.

Unless that is what you are trying to do - and you have truly taken the time to listen and understand - you are better off keeping your thoughts to yourself. And if, occasionally, you do slip up, then have the backbone to apologise and learn from the experience when called on it.

Chanes to FOI in Scotland approved

2013-01-17T14:51:18+00:00

Yesterday the Scottish Parliament passed the Freedom of Information (Amendment) (Scotland) Bill which will make some amendments to the Freedom of Information (Scotland) Act 2002 (FOISA). The Bill will now go forward for royal assent. The Bill as finally approved by the Parliament can be found here.

While the Bill does make some important and much needed changes to FOISA, there is much more that the Parliament could have done to strengthen the Bill and the message that FOI is here to stay in Scotland.

One of the most controversial elements of the Bill was the removal of the public interest test in relation to information which is exempt under the so called ‘Royal exemption’. The Scottish Government, to their credit, did listen to oral and written evidence submitted to the Finance Committee on the Bill and removed that amendment from the Bill at Stage 2. The debate about the Bill then moved to what was missing from it rather than what was contained within it; primarily because what was missing was of much more concern than what was there.

One of the most significant changes which was passed by the Scottish Parliament can be found at Section 5 of the Bill. This changes the time limit for proceedings under s.65 of FOISA. Section 65 creates a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority with the intention of preventing disclosure. Currently, FOISA means that a prosecution for an offence under this section can only be initiated within 6 months of the offence being committed. With the timescales permitted by FOISA it was impossible for a prosecution to be brought because it could be as many as 4 months before the request gets to the commissioner and could be 6 months before the Commissioner’s office is even aware that a s.65 offence may have been committed. The change that will come about as a result of this Bill means that a prosecution can be brought where it is done so within 6 months of evidence that the prosecutor believes is sufficient to justify the proceedings coming to the prosecutor’s knowledge (so long as it is not more than three years since the offence was committed).

I am not suggesting that there are significant numbers of these offences being committed, but there is little doubt that some will have been since 2005 and the impossibility of a prosecution ever being brought might have acted as an incentive for an authority so minded. The Bill passed by Parliament yesterday reinforces the fundamental nature of FOI and that those who seek to frustrate the FOI process will be prosecuted for it. It will be interesting to see if prosecutions do arise once the amendment comes into force.

Another significant change is at s.4 of the Bill and it relates to when information becomes a historical record. This will hopefully mean that information held by public authorities will be released much quicker than it might otherwise have been and that can only be a good thing for transparency and openness in public life.

Since the Bill was first published there was one thing that was noticeably absent and that was provision to extend the coverage of FOISA to bring (at the very least) the public’s FOI rights back to where they were in 2005. Since FOISA was passed in 2002 and came into force in 2005 there have been significant changes in the way public services are provided. Local authorities have transferred significant amounts of their work to private companies (many of which are publically owned); housing and leisure facilities are two prominent examples.

When these functions were carried out by local authorities the information held was subject to FOI and could be obtained to scrutinise work in these often important areas, but as these activities have been transferred to these ‘arms length organisations’ (Aleos) they have stopped being subject to FOI and people’s FOI rights have been reduced.

The Deputy First Minister made much of the designation power at s.5 of FOISA (to which some changes have been made to strengthen ministerial accountability over the use (or lack of) of these powers) and how it was the Government’s intention to use the powers. The current Government has been in power for almost six years and in that time not a single s.5 order has ever been made by them. The previous Government had not made any such orders either, but they left power only two years after FOISA came into force and were in power during a time when FOI was still bedding down and its extent and coverage was still, to an extent, being worked out. The fact that for six years the current Government has made no real effort to ensure that FOI rights are maintained, let alone extended in appropriate cases, is a significant failure. The Scottish Government can try and cover it up in any which way that they choose, but the fact remains that they have not issued a single s.5 order.

The Bill was, in the Government’s view, never about extending coverage. However, it should have been. While Parliament was spending time debating and considering FOI in Scotland it would have been a perfect opportunity to at least include those organisations previously consulted on in the coverage of FOISA. An amendment was moved yesterday by Iain Gray MSP to include Glasgow Housing Association into the list of Scottish Public Authorities, but that was defeated. A move to insert a more general amendment that would have made information held by a significant number of Aleos subject to FOISA was also rejected by the Parliament.

The Government frequently tells of its commitment to openness and transparency; indeed it was referred to many times during the passage of the Freedom of Information (Amendment) (Scotland) Bill through the Scottish Parliament. However, the Government could have demonstrated that they truly adhered to that commitment by agreeing to include those organisations previously consulted over into FOISA.

The Deputy First Minister has committed to issuing at least 2 s.5 orders; we really must see a substantial one issued this year and preferably before the summer. Anyone in Scotland who believes in FOI must now ensure that pressure is put on the Government to keep its commitment to use s.5 and to get it to do so early.

Iain Gray MSP put it well in the chamber yesterday when he said:

The point is that FOI legislation tests a Government’s moral fibre. No Government likes FOI. FOI is always inconvenient, but it is the right thing.

The Bill certainly has made some important and much needed changes, but it fell far short of what was needed.

The full Stage 3 debate can be read in the Offical Report of the Scottish Parliament

Opening up Open Data

2013-01-16T14:08:31+00:00

FOI Man reports on a visit to meet Open Data experts at Southampton University.

Chris Gutteridge is a techie – in the best possible sense of the word. When I first arrive, he’s eager to show me “the cool stuff”. And it really is cool.

Despite my pseudonym, I don’t have superpowers, yet Chris is able to fly me over and into the university campus, bringing us to the ground with a bump outside his building. Of course, I’m talking about a visual representation of the campus achieved through the neat trick of linking building data collected from the university estates department to Google Earth. Chris is experimenting with making the maps 3D by collecting (and in some cases creating) data on the height of buildings on campus.

And the cool stuff like this is how he sells the open data initiative to colleagues across the university. Central and local government have already made great strides in the open data arena, but Southampton are pioneers – and indeed, award winners – in the higher education sector. After all, it is the home of the Government’s open data tsars (can you have two?) Professors Nigel Shadbolt and Tim Berners-Lee (also famous these days for sitting behind a desk entertainingly at the Olympic opening ceremony – no mean feat). But even with this top level support, it can be tricky to get busy departments to cooperate, as many FOI Officers will sympathise with.

Chris starts listing the objections colleagues raised when asked to provide datasets to make available for re-use through their Open Data Service. He looks puzzled when I start laughing, but some of you will recognise “what about data protection?”, “what if terrorists exploit it?”, and “isn’t it commercially sensitive?”. And the question that often lies behind these objections in reality, “what if someone realises our data is unreliable?” (or “shit” as Chris rather more prosaically puts it). Chris has blogged a whole list of these concerns and they all sound rather familiar.

But by demonstrating that once the data has been collected centrally it can be made useful to the departments that originally provided it, Chris and his team have started winning them over. One of their biggest supporters is the Catering department, who already maintained spreadsheets with details such as the items available in the cafes, bars and restaurants across campus and their unit cost. With a little adjustment, the spreadsheets were made into reusable data. Now the Catering department no longer have to manually update their web pages as the availability and cost of food and drinks in individual outlets is now pumped live from regularly refreshed open data straight to the pages. They’re now doing similarly useful things with events calendar data.

Chris thinks this repurposing of the open data is key to making open data a success. His mantra, repeated to me several times, is that the main return on investment in open data for the university is the availability of “a huge pile of data that can be used internally without fear”. And if outside users (or indeed their own students) find the data useful to create new apps, then all the better.

Chris gives me some tips for anyone wanting to establish an open data repository. Given that recent FOI amendments mean that this will soon be a requirement, that’s pretty much all of us in the public sector.

Avoid controversy. You want to get buy-in from colleagues, so don’t startle the horses. Pick simple but useful datasets that nobody will challenge. At Southampton they started out with building data. It’s data that isn’t sensitive – people can see most of it by walking around the campus – but as we saw at the start of this piece it can be put to very effective use by developers.

Think carefully about what datasets you think should exist. Then speak to the relevant departments and see if they do have those datasets in a useful format. Chris suggests that often suppliers can be very helpful, and can give advice on how datasets can be extracted from their systems. They may even be prepared to look at how their systems are specified so that datasets can be more easily exported in future.

Encourage colleagues to give you their data even if it isn’t complete. It is better to have some data than no data at all in most circumstances.

Be ready to challenge concerns. Some colleagues will be concerned about giving data away for free, rather than making money from it. But as Chris points out, “if a Chinese takeaway gave away its food, it would soon go out of business. But if a Chinese takeaway didn’t give away its menus, it would go bust even faster.”

Look at what you’re already making available, and how. Chris demonstrates that my university is already making available data in a reusable format because we have an online repository called EPrints. He tells me that if you have an RSS feed on your website, you are “already more or less doing open data”.

Make information available in a reusable format. Open data enthusiasts grimace at the mention of portable document format (pdf). At the very least, try to make data available in a spreadsheet format.

Adopt an open licence. Open data is about more than publishing information in a reusable format. It is also about licensing. It’s really only open data if you state on your website/open data repository that data can be reused without charge. The best way to do this is to adopt the Open Government Licence.

Keep datasets up-to-date. One of the things that public bodies will be expected to do once the FOI amendments on datasets come into force is keep published datasets up-to-date. I ask Chris how Southampton maintain their datasets. It depends, of course, on where it comes from.

Hearts will sink to be told that a lot are maintained manually by his team – not many of us will have resource to spare. So to make this work we need to ensure that it’s as easy as possible to get things corrected. Chris suggests encouraging feedback from users of the data so that they can flag up when data needs refreshing. At Southampton they also use student volunteers to maintain the datasets, which might be something to consider for universities in particular.
Some datasets automatically update. Depending on your set up, some will be fed live data from systems maintained by the supplying department. Some suppliers who provide systems across the public sector are already thinking about how to build open data publication functionality into their databases.

Chris is keen to encourage the growth of an information ecology, with others across higher education publishing more and more open data. He encourages universities to consider creating ‘profile’ documents on their websites, describing where their key datasets can be found and in which formats. This will help with auto-discovery by the new open data hub for higher education, which will eventually provide potential users of datasets with a single portal to locate useful data.

So the higher education sector isn’t moving into this new era of reusable open data entirely unprepared. And if you’re thinking of taking your first steps into this brave new world, hopefully you, like me, feel slightly less daunted thanks to Chris’s enthusiasm.

I’d like to thank Chris, Ash and Patrick for letting me disturb them for a whole afternoon last Friday. Any errors here reflect my ignorance and not their skill or willingness to share!

The Scottish Information Commissioner Needs You

2013-01-16T11:35:23+00:00

The Scottish Information Commissioner is conducting a survey on FOISA learning and development resources. We would encourage all our Scottish friends and delegates to complete the survey and have a say in the future priorities of OSIC. “The Scottish Information … Continue reading →

Crunch week for FOI in Scotland as Parliament debates coverage

2013-01-14T17:24:20+00:00

The Campaign for Freedom of Information in Scotland (CFoIS) has urged the Scottish Parliament to back a series of amendments to the Scottish Government's Freedom of Information (Amendment) (Scotland) Bill. This Bill is to have its Stage 3 debate in the Scottish Parliament on Wednesday 16 January and a series of amendments are proposed to ensure FOI rights extend to public services provided by private, voluntary and arms-length bodies.

The CFoIS wants the Scottish Government to heed the concerns expressed by the Finance Committee's Stage One report. The Campaign is taking part in a briefing meeting for MSPs on Tuesday 15 January, the day before the Parliamentary debate, and will be circulating a written briefing outlining the need to amend this bill to reinstate eroded rights to information. The meeting will be chaired by Paul Martin MSP, and addressed by Carole Ewart of the CFoIS.

Carole Ewart, Co-Convener of the CFoIS, said:

"A number of MSPs, including members of the Finance Committee, have submitted amendments to this Bill, as the Scottish Government appears unable or unwilling to accept our arguments in favour of protecting our information rights."

The major reason why the Bill should be strengthened is to retrieve peoples's information rights lost as increasing outsourcing of our public services removes services from coverage. Neither the Scottish Government nor previous Scottish Executive Administrations have ever used their powers to add named bodies and categories of bodies to the list of organisations covered.

Amending the Bill is also necessary to meet the Scottish Government's own FoI principles, 1 and 2: that "the public's right to know remains an essential part of an open, democratic government and responsive public services" and FoISA "will be adjusted where it is necessary and sensible to do so".

Carole Ewart said:

"At a time when Audit Scotland estimates over 130 arms-length bodies are involved in delivering public services, and when the Scottish Government is proposing bills like the Procurement, and Community Empowerment Bills that will bring more bodies into public service delivery, it is very concerning that they seem oblivious to the threats these pose to everyone's right to know about how our cash is spent."

Notes:

The Briefing for MSPs will be held in Committee Room 1 from 1.15pm on Tuesday 15 January.

A copy of the briefing sent to MSPs in advance of the debate is available from the CFoIS website http://www.cfoi.org.uk/scotland.html.

There is an email message available on the UNISONScotland website, that allows Campaign supporters to lobby their MSPs.

Scale of UK Government’s opposition to the proposed Data Protection Regulation and Directive made absolutely clear.

2013-01-14T00:04:35+00:00

Last week, we had the European Parliament saying that the Commissionâ??s proposed Data Protection Regulation and Directive should be strengthened; this week we have a publication that identifies the extent of the UK Governmentâ??s opposition to both.

The document which expresses the nature of the opposition is the Governmentâ??s Response (â??the Responseâ??) to the Justice Select Committeeâ??s opinion on the European Union Data Protection Regulation (and Directive in the field of law enforcement and judicial cooperation); its text shows what the Government wants to change and why (link at end).

This blog essentially comprises two sets of quotes from the Response, one set relating to the Regulation and the other to the Directive. The quotes more or less speak for themselves and I make very little commentary. One gets the gist very quickly! Note, however,Â that the UK Governmentâ??s opposition to the Directive is almost absolute.

Quotes in relation to the Regulation

â??The UK Governmentâ??s position with regard to the proposed Regulation is that it should be re-cast as a Directiveâ??. Comment: this is to allow flexibility for Member States to implement the data protection rules in their own way. The Response states that â??the Governmentâ??s position that the proposed Regulation should be re-cast as a Directive would allow for harmonisation in the areas where it is advantageous and flexibility for Member States where it is requiredâ??. PleaseÂ note that the UK Government is not the only Member State that prefers an implementation by Directive (see references).
â??If the proposed Regulation were to be changed to a Directive and the proposal for a Directive were to be taken forward, then there would be two Directives, one for the general data protection framework and one for processing in the area of police and judicial co-operation in criminal matters. An advantage of this approach would be that the two Directives could then be implemented in a single piece of domestic legislation to help avoid confusion and support consistency where necessaryâ??. Comment: note that the phrase â??support consistency where necessaryâ?? infers that the data protection principles, rights, enforcement etcÂ that apply to the police in the proposed law enforcement Directive might not be the same as in the Regulation.
â??The Government wants to see EU data protection legislation which protects the civil liberties of the individual whilst allowing for proper public protection and economic growth and innovation. These should be achieved in tandem, not at the expense of one or the otherâ??. Translation: the Government believe that the higher protection for the individual is at the expense of public protection and economic growth.
The Government states that â??the proposed Regulation places prescriptive obligations upon data controllers as to how they will comply with the proposed Regulation, such as completing data protection impact assessments and hiring data protection officers. This is a â??one size fits allâ?? approach which does not allow data controllers (from small online retailers to multinational Internet companies) to adopt their own practices in order to ensure compliance with the legislationâ??.
Instead â??the European Commissionâ??s proposal should focus on regulating outcomes, not processesâ??. Under the risk-based model that the UK is advocating, â??it would be for data controllers to put measures in place in order to comply with the outcomes prescribed in the legislationâ??.
â??The Government is seriously concerned about the potential economic impact of the proposed Regulation. At a time when the Eurozone appears to be slipping back into recession, reducing the regulatory burden to secure growth must be the priority for all Member States. It is therefore difficult to justify the extra red-tape and tick box compliance that the proposal representsâ??.
â??At a time when the Eurozone appears to be slipping back into recession, reducing the regulatory burden to secure growth must be the priority for all Member States. It is therefore difficult to justify the extra red-tape and tick box compliance that the proposal representsâ??. For example, â??we estimate the costs for UK small businesses of simply demonstrating compliance with the proposals to be around Â£10 millionâ?? (in 2012â??13 earnings terms) and in terms of the â??whole economy of Â£100â??Â£360 million per annum (in 2012â??13 earnings terms)â??. Comment: warning! There are some dodgy numbers about (see references).
â??Whether or not a DPO is appointed could depend on the quantity and the sensitivity of the data that is being handledâ??. Comment: this is at odds with the Regulation which says that it is the size of the organisation that determines when a data controller needs a Data Protection Officer (DPO), and the European Parliamentâ??s amendment which says the number of data subjects is the important consideration when having a DPO.
â??The Government believes that the supervisory authorities should have more discretion in the imposition of fines and that the proposed removal of discretion, combined with the higher levels of fines, could create an overly risk-averse environment for data controllersâ??. It adds â??ere there to be divergence in terms of the use or the levels of fines, and if those differences had a negative effect on compliance, the Government considers that the provision of guidelines by the European Data Protection Board could be usefulâ??. Comment: note that the UK sees the role of the Board is to provide Guidelines (which, of course, could be ignored in the same way as many Working Party 29 Reports are ignored at the moment).
â??The Government agrees with the Committeeâ??s view that the proposed Regulation as drafted is over-prescriptive in terms of how data controllers comply with the draft Regulation. Under the risk-based model that the UK is advocating, it would be for data controllers to put in place and regulate the obligations in order to ensure compliance with the legislationâ??.
â??We want to achieve protection for individuals whilst ensuring that data controllers can process data without having to comply with expensive and bureaucratic measures which do not enhance data protection and which prevent businesses from growing".

Quotes in relation to the Directive

Before starting there is a reference in the quotes below to â??domestic processingâ??; to avoid confusion the term is a reference to how the law enforcement agencies work within the UK (e.g. how they process personal data already justÂ within UK borders). It is not a reference to Section 36 of the current DPA!

â??The Government shares the Committeeâ??s view that there is not a pressing need to update the Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters. The Framework Decision has yet to be fully implemented across all Member States, or evaluated. Implementation and evaluation of the current legislation should come first before new legislation is consideredâ??.
The Government believes that the inclusion of domestic processing in the draft Directive is at odds with the principle of subsidiarity. Under this principle, the form of Community action should be as simple as possible, and leave as much scope as possible for national decision. Furthermore, there is no evidence to demonstrate that the lack of EU rules in this area has had a detrimental impact on law enforcement activity or the protection of individuals. Comment: this can be shortened to â??hands off our internal approach to policingâ??. Given the political agitation on the Conservative back benchers, I canâ??t see the current UK Government implementing it at all.
â??It is our view that introducing prescriptive requirements for domestic processing may instead have a detrimental effect on law enforcement operations, placing onerous burdens on data controllers and huge costs on public authorities â?? without delivering better data protection for individualsâ??.
â??On the issue of common law, the Government shares the view of ACPO and the Committee that the Directive should not undermine the use of common law powers in the UK or other countries with similar systemsâ??. Comment: this shows that the Government believes that the proposed Directive would, in its current form,Â undermine the common law powers of the police.
â??The Government therefore does not consider that full harmonisation of police and judicial co-operation in criminal matters is necessary or desirableâ??. Comment: canâ??t be clearer than that.

References

The Response of the UK Government to the Justice Select Committee Report: Download Blog UK Government response to Justice re eu-data-protection-proposals

Blog covers some dodgy numbers: â??Data Protection Regulation cost of compliance. Has the UK published suspect numbers?â?? http://amberhawk.typepad.com/amberhawk/2012/11/data-protection-regulation-cost-of-compliance-has-the-uk-published-suspect-numbers.html

Blog specifies which countries want the Regulation implemented as a Directive: http://amberhawk.typepad.com/amberhawk/2012/11/uk-government-opposed-to-the-commissions-data-protection-regulation.html

Blog discusses the Report to European Parliament on the Data Protection Regulation; enhanced protection for data subjects and fettering of Commissionâ??s powers. http://amberhawk.typepad.com/amberhawk/2013/01/european-parliament-mauls-the-data-protection-regulation-enhanced-protection-for-data-subjects-and-fettering-of-commission.html

Details of our half day workshop on the Data Protection regulation can be downloaded here: http://www.amberhawk.com/uploads/Brochures/Amber_Regulation%20half%20day%20workshope.pdf

Sharp fall in young police officers

2013-01-13T18:39:57+00:00

Police numbers have been falling due to the financial squeeze on the public sector - that is a widely publicised fact. But what hasn't been made known until now are the details of how the drop has been concentrated among younger officers.

These figures are collected by police forces in England and Wales for reporting to the Home Office. But the Home Office doesn't include them in the police statistics that it routinely publishes. The BBC obtained them by a request under the Freedom of Information Act.

They reveal that the number of officers over 40 has stayed roughly unchanged from 2010 to 2012, while the number under 26 has plummeted by nearly half in this brief period.

It raises questions about how representative the police force is, especially given the issues about relations between the police and young people in some areas. And it also can't help with the concerns about the level of physical fitness among the police.

FOI Media Update - December 14th to 31st 2012

2013-01-11T11:52:44+00:00

Not so grim up North: BBC staff paid up to £90,000 to relocate to Salford HQ - Daily Mail - 31.12.12

A freedom of information request found that 850 staff have been given a total of £11 million to cover the costs of moving, as well as one-off payouts worth 10 per cent of their salary to encourage them to move north from London.

Energy company staff working at climate ministry - The Guardian - 30.12.12

Employees from firms including British Gas, Shell and npower are being seconded to work at Department of Energy and Climate Change and, in most cases, are being paid by the government to do so. Documents released under the freedom of information rules reveal that almost two dozen employees from companies are working at the Department, and civil servants have travelled in the opposite direction to work for the companies.

927 doctors and surgeons 'have criminal record, including child porn and sexual assault offences' - The Independent - 28.12.12

Nearly 1,000 doctors and surgeons have criminal records including child porn and sexual assault offences. The figures have been revealed by the General Medical Council in response to a Freedom of Information request by the Daily Mirror.

Criminal records wrongly name 12,000 people - The Guardian - 28.12.12

Nearly 12,000 people over the past five years were wrongly labelled criminals due to inaccurate record checks, leading to £1.9m paid out in compensation. The figures, published by privacy and civil liberties campaign group Big Brother Watch after a freedom of information request, showed the most common errors involved information being disclosed by local police forces or the police national computer.

Social media-related crime reports up 780% in four years - The Guardian - 27.12.12

Statistics released by police forces under the Freedom of Information Act show that the phenomenon of social networking crime was comparatively minor in 2008 with 556 reports made to police . This year there were 4,908 reports in which Facebook and Twitter were a factor.

Alex Salmond 'secrecy' over independence civil servants - The Telegraph - 27.12.12

Mr Salmond had faced accusations of overseeing a "culture of secrecy" after claiming he holds no record of how many civil servants he has assigned to work on his blueprint for an independent Scotland.

Prescription medicine waste 'costs £500,000' to NHS in Scotland - BBC - 27.12.12

The Liberal Democrats have hit out at the £500,000 a year cost to the NHS in Scotland for collecting and destroying unused prescriptions. The figures obtained by freedom of information cover the cost of medicines returned unused to pharmacies in 10 out of 14 health boards in 2011/12.

Inquiry into 'excessive' pay-offs for BBC chiefs - The Independent - 26.12.12

The public spending watchdog, The National Audit Office, is to investigate BBC severance packages after it emerged that almost 200 senior managers received pay-offs of more than £100,000 each in the past three years. Figures obtained under the Freedom of Information laws show that between 2010 and 2011 the cost of redundancy payments more than doubled to £58 million.

Rise in teachers off work with stress - and union warns of worse to come - The Guardian - 26.12.12

The number of teachers taking stress leave has increased by 10% over the past four years, with 15 local authorities seeing a 50% rise in stress-related absences, according to statistics released under the Freedom of Information Act.

Nuclear safety watchdog criticises Sellafield's emergency readiness - The Guardian - 26.12.12

A damning report by safety experts has revealed that staff at Britain's most important nuclear site did "not have the level of capability required to respond to nuclear emergencies effectively". In response to a freedom of information request, the Office for Nuclear Regulation said errors by senior fire officers in a preparedness exercise at Sellafield "could have led to delays in responding to the nuclear emergency and a prolonged release of radioactive material off-site".

Prince Charles: 'black spider memos' to ministers could spark second veto - The Guardian - 26.12.12.

Further secret lobbying written by Prince Charles letters could set government ministers against judiciary again if judges rule in favour of publication 'in public interest'. Cabinet ministers provoked an uproar earlier in the year when they overruled three judges and banned the disclosure of letters that could have cast doubt on the prince's neutrality. The judges had decided that the public had a right to see how the heir to the throne had been trying to sway government policy. Now the same judges are deciding whether a second set of letters sent by the prince should be published. If the judges decide that this second cache of letters should be published, the cabinet would then be faced with the prospect of having to veto their publication as well.

Concerns over use of Taser guns on vulnerable people - The Telegraph - 25.12.12

Figures obtained under Freedom of Information show that in the last three years police have used Tasers on at least 78 people to stop them from killing or otherwise hurting themselves. Mental health charities have criticised such use as being "completely inappropriate" actions on people "in great mental distress".

Runaway children in greater danger through police and council failings, report warns - Observer - 23.12.12

According to The Children's Society support for the 100,000 children who run away from home every year, many of them fleeing physical or sexual abuse, is extremely limited and in large parts of the country shows no signs of improving. The Society sent freedom of information requests to all 150 councils in England and the 43 regional police forces and found that two-thirds of the councils had no specific programme to help runaways, while a similar proportion was unable to provide emergency accommodation. Almost half of all police forces were unable to say how many children went missing in their area each year.

MP Gavin Williamson attacks Centro £19k lobbying bill - Express & Star - 22.12.12

Tory MP Gavin Williamson has used the Freedom of Information Act to reveal the taxpayer funded authority in charge of West Midlands public transport spends almost £20,000 a year on lobbying politicians and promoting itself to government.

Department for Education to face special FOI measures - BBC - 21.12.12

The Department for Education's difficulties with implementing the Freedom of Information Act have been re-emphasized in the most recent release of statistics on the performance of government departments. In the latest quarter it had the worst record out of all department in England for responding to FoI requests within the legal time limit. As a result the Department has been put under special monitoring by the Information Commissioner's Office.

In September the DfE abandoned the controversial legal case it had been fighting to try to establish that emails sent by ministers on personal accounts ere not covered by the FOI Act. The position was in defiance of the clear stance adopted by the Information Officer, who had already ruled that all emails sent on government business could fall under FOI, whether an official or private account was used.

Three other public authorities have also been targeted by the ICO for close monitoring due to their unsatisfactory handling of FOI applications.

Scottish councils spend nearly £10 million on credit cards - The Telegraph - 21.12.12

Scotland's councils have spent nearly £150 million on credit cards including transactions for skateboards, the rights to screen the film Grease and thousands of pounds in unexplained cash withdrawals. Official figures were obtained by the Conservatives under the Freedom of Information Act.

£37m Poole Twin Sails Bridge 'glitches' defended - BBC - 19.12.12

A Freedom of Information Act request by the BBC found the lifting bridge linking Poole port and Hamworthy closed 38 times in its first six months. The bridge opened in April after being beset by delays and unexpected closures. Poole Borough Council says the town's Twin Sails Bridge is something to be proud of, despite its early problems.

New FOI curbs could make Government more secret - The Telegraph - 18.12.12

The Government has published proposals in response to a committee of MP's report on the working of the Freedom of Information Act.

Changes to the cost cap on requests could radically cut the proportion of requests under the FOI legislation that are answered.

Other changes would allow officials to add into the cost their "thinking time" when deciding to give answers further limiting the information that would be released. This proposal is of particular concern to The Campaign for Freedom of Information. Its director, Maurice Frankel, said, "The longer an authority needs to think about a request, the greater the chance of it being able to refuse to answer on cost grounds".

Information released through FOI have formed the basis of some of the biggest stories in recent years, notably the revelations concerning MP's expenses, which were revealed in 2009.

NHS trusts are enmeshed in private provision - as buyers and suppliers - The Guardian - 18.12.12

NHS hospitals deal with private firms to buy and sell patient care and treatment services worth more than £500m.

Freedom of information requests to more than 100 NHS trusts revealed hospitals were spending millions of pounds buying beds in private hospitals, often to bring down long waiting lists.

In some cases the NHS draws a veil of secrecy over the state's relationships with the private sector. Some trusts simply refused to name which companies they were spending tax pounds with for patient care, claiming that to do so would "prejudice commercial interests".

Freedom of information proposals attacked - Financial Times - 18.12.12

Government plans to amend the Freedom of Information Act could make it hard for people to get answers to complex or contentious requests, the Campaign for Freedom of Information has said. The changes could see time-consuming information requests refused because authorities would be allowed to take account of the cost of considering applications and deleting exempt data, as well as the time it takes to find documents.

The government is also proposing to allow authorities to combine the cost of unrelated freedom of information requests from the same individual or organisation - making it more likely that requests could exceed cost limits.

£18million in benefits paid to prisoners has not been recovered - London Evening Standard - 16.12.12

More than £18 million in benefits wrongly paid to prisoners in the past four years has not been clawed back. The figures, revealed by a freedom of information request by the Mail on Sunday, show that between 2007 and 2011 overpayments as a result of "customers being in prison" were made worth £31.7 million but only £13.1 million was recovered - a shortfall of £18.6 million.

Lancashire PCC Clive Grunshaw faces expenses probe - BBC - 17.12.12

Lancashire's police and crime commissioner Clive Grunshaw is facing questions about his expenses while a councillor and police authority member following a freedom of information request from Conservative councillor.

European Parliament mauls the Data Protection Regulation; enhanced protection for data subjects and fettering of Commission’s powers

2013-01-09T01:55:21+00:00

Happy New Year. Nice to be back at work, I think not.

In a 215 page report, the European Parliament has suggested 350 Amendments to the text of the Data Protection Regulation published last year. This blog gives you an impression of those proposed changes that caught my eye on a â??speed readâ??Â of the Report (produced by Jan Albrecht, the rapporteur for the European Parliamentâ??s Committee on Civil Liberties, Justice and Home Affairs).

I think the most important proposalÂ isÂ the fettering of theÂ European Commissionâ??s powers. In many instances, many powers found in the Regulation are amended to involve the European Data Protection Board of Data Protection Commissioners (the Regulationâ??s formal structure for what we now call the Working Party 29 Group of Commissioners).

Sometimes the powers are transferred entirely (e.g. when the Board is â??entrusted with the task of further specifying the criteria and requirements for the methods to obtain verifiable consentâ?? or when specifying the criteria, conditions and appropriate safeguards for the processing of what we know as sensitive personal data (in the UK Act, these are the preserve of the Secretary of State).

Sometimes the Commission need to involve the Board before exercising powers; for instance the Commission may lay down standard forms for specific methods to obtain verifiable consentâ?? but only â??after requesting an opinion from the European Data Protection Board.

The change is to be welcomed because it helps reduce the conflict of interest that is endemic in every data protection regime that has ever existed. For instance, the European Commission is responsible for processing personal data for its own objectives and also responsible for establishing the data protection rules in the Regulation. This means that there is always a risk that the Commission could subvert data protection law to suit its policy objectives.

Such subversion happens in spades. So, for instance, if it is politically convenient to ignore data protection considerations when transferring personal data abroad (e.g. PNR data to the USA) or enter into agreements that are data protection deficient (e.g. the European Data Protection Supervisor has publicised several examples of such agreements), then the Commission does so quite freely. All Data Protection Commissioners can do is shout in public, and then go to the pub and cry into their beer.

In this way, the European Commission (and any Government)Â can be seen as a special data controller that has powers to amend the data protection law so to ensure thatÂ its processing is lawful. This contrasts with what most data controllers do; they have to amend their processing of personal data to ensure that it conforms with data protection law.

Another small amendment that caught my eye was that the domestic purpose exemption is modified so that individuals can use Ebay. This was one of the UK Governmentâ??s objections to the text. Someone contact the Daily Mail immediately: tell them that a lefty Green MEPÂ has caved in to Dave and Nick.

The Report has introduced the concept of a not quite personal data; a 'pseudonym'; I am not sure of the consequences. A 'pseudonym' isÂ a â??unique identifier which is specific to one given context and which does not permit the direct identification of a natural person, but allows the singling out of a data subjectâ??.

The Report thenÂ states that â??For the use of pseudonymous data, there could be alleviations with regard to obligations for the data controller undertaking the processing (e.g where personal data are processed only in the form of pseudonyms, consent may be given by automated means)".

I am not convinced the concept works also and I think it needs a definition of â??pseudonymous dataâ?? which also considers what other information the data controller has. For instance, suppose I know that mickey.mouse@hotmail.com is really Fred Bloggs. The mickey.mouse email address is pseudonymous data as it does not â??not permit the direct identification of a natural personâ??; but I know who it is.

The Report has tried to separate that processing with the consent of the data subject from that processing that is necessary for a contract. For instance, we have all seen Fair Processing Notices of the form â??by signing this contract, you consent to â?¦â?¦ etc etcâ??.

In these cases, the Report recommends that â??The execution of a contract or the provision of a service may not be made conditional on the consent to the processing or use of data that is not necessary for the execution of the contract or the provision of the serviceâ??.

The definition of data subject is stronger. â??A data subject means a natural person or a natural person who can be identified or singled out, directly or indirectly, alone or in combination with associated data, by means reasonably likely to be used by the controller or by any other natural or legal personâ?¦.â?? (main changes in italics). What this means that if an individual is not identified but is â??singled outâ??, then the data controller is processing personal data.

Clearly if you are on the Internet and someone is monitoring your IP address, you are being â??singled outâ?? and you become a data subject. One can also see that also that the IP address is â??pseudonymous dataâ?? (see above), and what the Report is trying to do, but there is an overriding uneasy feeling that the drafting is not quite right.

The Reportâ??s proposals would still scupper requests for personal data under the UK'sÂ FOI Act. This is because the proposal still excludes reference to the â??Third Partyâ??s legitimate interestsâ?? to the disclosure (i.e. para 6 of Schedule 2 of the DPA). I should add, that my colleague Sue Cullen has written a wonderful chapter on the trials and tribulations of the DP/FOI interfaceÂ in Rosemary Jayâ??s next edition of her data protection bible (see references).

In general, for data controllers relying on para 2 of Schedule 6, the Report has defined circumstances when the legitimate interests of the data controller are always overridden by concerns regarding the fundamental rights of data subjects. For instance, the rights and freedoms of the data subjectÂ always prevail if Sensitive Personal Data or location data, or biometric data are processed or if the personal data are to be used for profiling.

In the context of profiling, the Report suggests amendments that ensure that any data controller will find any profiling activity far more difficult to do.

I have to admit that some of the amendments are poorly drafted. For instance, consider the data minimisation principle (i.e. our Third Principle relating to adequate, relevant, not excessive). The Report amends the requirement and states that personal data are â??limited to the minimum necessary in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing anonymous information that does not involve personal data) â?? (my emphasis).

Sadly the phrase â??anonymous information that does not involve personal dataâ?? implies that some â??anonymous information does involve personal dataâ?? â?? which of course is a contradiction in terms.

Some proposals are just â??off the wallâ??. The Report has a proposal to modify the small business exception in several places by replacing the current criterion of 250 employees with a criterion based an enterprise processing personal data relating to fewer than 500 data subjects per year.Â I think most small businesses would have 500 email addressess in Outlook!

Anyway, Happy New Year again. Another 220 pages to read and digest. I just told my psychiatrist that it was a real pity the ReportÂ did not come in time for Xmas as fills yourÂ stockings nicely.

However, remember that the real power is with the Council of Ministers. It what they say that goes; this report, when the chips are down will be more or less ignored (and the drafting errors will make this so easy to do).

References

Jan Albrecht Draft report on the COM proposal for the General Data Protection Regulation http://t.co/3NtwVsYS

Details of Rosemary Jayâ??s book (the Fourth Edition of Data Protection law and Practice) can be downloaded here Download RJ BOOK DPLP FINAL

Details of our half day workshop on the Data Protection regulation can be accessed here http://www.amberhawk.com/uploads/Brochures/Amber_Regulation%20half%20day%20workshope.pdf

January – the FOI Officer’s Hangover

2013-01-08T22:19:46+00:00

FOI Man makes a plea for patience from those who made requests before Christmas.

January – it’s a hard month for all of us, isn’t it? Most of us have had at least a few days off over Christmas and new year, so getting into the swing of things is always tricky. And many of us have been lucky enough to have almost a fortnight away from the office. And then we come back to the darkest days, a pile of work and no holiday in sight.

SOAS, my own organisation, shuts down completely for the whole of Christmas week every year. Even if I wanted to I couldn’t be in the office to deal with FOI requests and other matters of a pressing nature. Some other FOI Officers will be in the same boat. And even when the office was open before Christmas, the availability of colleagues to answer queries and discuss how to answer requests was, as ever, in long slow decline during December. So even the welcome discovery that we have an unexpected extra day is little consolation to the returning FOI Officer facing a rush of FOI deadlines, having lost the meat of the time allowed – between one and two weeks – to work on the requests.

Generally speaking, I’d advise any requester to avoid making requests during December if their need for a response is urgent. But if you did feel the need to submit an FOI request during December, please do retain a little festive goodwill and be patient – it may well take a little longer for some authorities to respond at this time of year, despite their best efforts.

I’ll be writing a regular column for PDP’s Freedom of Information Journal this year, and if you want to know more about how 20 working day deadlines work, my first article will be on that very subject. Watch this space!

Leveson data protection plans 'could have chilling effect on journalism'

2013-01-08T11:48:39+00:00

Information commissioner Christopher Graham says there are 'legitimate concerns' about impact of proposals on journalism

Lord Justice Leveson's proposals for tougher data protection laws could have a "chilling effect" on investigative journalism, the information commissioner has warned.

In his official response to Leveson's report, Christopher Graham said there were "legitimate concerns" about the impact the recommendations could have on public interest journalism.

Graham also warned that Leveson's proposals would move the Information Commissioner's Office (ICO) closer to being a mainstream regulator of the press. He said: "The significance of the proposed changes should not be underestimated."

Leveson suggested a number of changes to the Data Protection Act 1998 in his report published in November. Among the reforms, he proposed that the subjects of news stories should be allowed access to information that journalists hold about them. That led to fears in the industry that anonymous sources could be identified.

"The area of subject access is particularly problematic in that there are legitimate concerns about the chilling effect Lord Justice Leveson's proposal might have on investigative journalism," Graham said.

"This area will need very careful consideration. This again is a matter of balance of interests and is ultimately a matter for parliament."

Graham warned that, if adopted, Leveson's proposed reforms could establish the ICO as a second mainstream press regulator – a move he said he would actively oppose.

He said: "Taken as a whole package, Lord Justice Leveson's recommendations on reforming the DPA would, if implemented, move the ICO closer to becoming a mainstream statutory regulator of the press. The significance of the proposed changes should not be underestimated ... The ICO is not actively seeking a wider role in relation to the regulation of the press and does not underestimate the challenges it would bring."

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Josh Halliday

How many angels can dance on the head of a pin?

2013-01-04T21:13:05+00:00

I'm struggling to even begin to enumerate the ways in which the Church of England's decision on gay bishops is deeply wrong.

Let's start with the obvious: apparently if you are a gay man in a civil partnership, you may now become a bishop in this country's established church as long as you a. promise to be celibate and b. repent your ~~evil ways~~ "homosexual activity" of the past. So while your straight colleagues may continue to enjoy the physical as well as emotional benefits of their marriages, the Church will presumably install a webcam in your bedroom, or make you and your partner sleep in separate beds. This of course will do your relationship a world of good, thus enabling you to excel at your job and minister to your congregation ever so much better. Not.

This arrangement is hardly compatible with the duty of care normally owed by an employer to an employee. The Church, however, has a neat way around that, in that clergy are not legally regarded as employees. They have no contract of employment but are technically office holders - a clever trick which allows the Church to get around a whole bunch of employment legislation.

Funnily enough, both the opponent and proponent of the move to allow gay bishops that Radio 4's PM managed to get on air today thought that the proposed set-up was ridiculous, unenforceable and damaging to the Church's credibility. But that's hardly anything new for the CofE. Also unsurprisingly, they then went on to reach very different conclusions from this shared opinion.

The decision, combined with the pre-Christmas fiasco over women bishops, also highlights another longstanding issue: that it is still easier to reach the top tiers of society as a gay man than as a woman of any sexual orientation. In privilege bingo gender apparently trumps sexual orientation every time. The Church has been debating the ordination of female clergy since 1966, and of women bishops in particular since 1975, and an end to this debate does not appear to be in sight. Ridiculous restrictions aside, though, the doors are now open for gay men in civil partnerships to become bishops, less than ten years after the debate even started with the resignation of Jeffrey John as Bishop of Reading.

Finally of course, the Church and the government are setting themselves/each other up for a headache of epic proportions when marriage equality becomes law.

Which, to be honest, would all be perfectly fine if the Church of England's antics could all simply be filed under "How many angels can dance on the head of a pin?" and the rest of us could be left to our own devices, as tends to be my standard approach to religion in general. The CofE, however, is a political institution in this country. As the established church, it is intimately intertwined with other institutions of state, from the head of state who is also Supreme Governor of the Church to the 26 seats in the legislature reserved for CofE bishops and thus for men - straight and now gay. And yet while those bishops make our laws, they and the institution they represent continue to be specifically exempt from some of said laws, such as the Equality Act, and they continue to demand further exemptions, as in the case of marriage equality. The rule of law this is not. It is therefore high time that the Church of England was both disestablished and subjected to the laws of the land. In the meantime, let's hope they don't really install cameras in people's bedrooms.

Whose data is it anyway?

2013-01-04T09:18:24+00:00

The Guardian’s website led with an odd story this morning. Not for the first time, GPs (the people whose insights are supposed to be so profound that they are effectively running NHS Commissioning) are complaining about the complexity of dealing with access to childrens’ medical records from parents who are divorced or separated. The most obvious thing to say about the article is that it runs to nearly 1000 words without mentioning the relevant legislation (Data Protection), which is a remarkable oversight. The second obvious thing to say is that the picture of GPs (and journalists) not understanding how Data Protection works is at least as great a concern as the complaint about how hard it is to deal with divorcing couples. Everyone else gets on with it without generating front page news.

The Medical Protection Society – the medical legal defence organisation – report “a steep increase in calls from GPs concerned about requests for access to children’s medical information from separated parents”. However, the reported concerns are pretty standard and the idea that doctors are running to their legal representatives deserved better scrutiny. The only legislation giving a right to medical data about living people is the Data Protection Act, and the only person given a right to a child’s medical information is the child. The right of subject access is not delegated to anyone else in the DPA, and parents are not given any specific rights over their child’s information. The article states: “Parents who were married will normally both have parental responsibility and be entitled to see their child’s medical record”, which is a significant oversimplification. Data Protection doesn’t mention Parental Responsibility. Parents have been given a specific right of access to education records under the Pupil Information Regulations, but no such provision has been made for medical information.

The Information Commissioner’s Office – in my experience – tend to use PR as the only test even though their own Guide to Data Protection is more nuanced. Keen to clear their caseloads and faced with angry parents who obviously won’t go away, I think they sometimes adopt the line of least resistance – they’ve got PR, so hand the data over and help me meet my targets. PR is rarely removed from a parent, except in very serious cases or when the child is adopted. I’ve dealt with numerous parents who were forbidden even from sending a birthday card direct to their child, and yet the court hadn’t bothered to remove PR. These parents cannot logically act on their child’s behalf, so convincing them they have an “entitlement” that they don’t have helps no one. The ICO once issued an adverse assessment on a decision my employer made to withhold records from a parent who had no contact with their child, but when we told them that we were sticking to our decision, they would not enforce their decision, effectively backing down. Check the Government’s guidance on PR and you’ll find a lot more about the parent’s responsibilities than their rights.

When a parent asks for information about their child, they are exercising their child’s rights on their child’s behalf. A disclosure to a parent that is the child’s interests is always justified, so GPs must focus on that question. The individual decision may not be easy, but the principle is. The idea that “GPs will try to keep out of it [the marital dispute]” is sensible, but a GP cannot expect to run away from tricky decisions about who gets access to data. It’s part of the job. They are not ‘caught in the crossfire’ as the headline would have it. A disclosure of information about the child’s health while in the care of a non-resident parent at the weekend or on holiday should probably be automatic. On the other hand, a disclosure of any information about the other parent – where they live, how they are, what they think – is unacceptable, and GPs or their staff must have the skills to respect the confidences of other patients. Many requests will fall somewhere in between. The article asserts that a father in a domestic violence case “may have a right to access the child’s record, but the GP may have to be mindful of the fact that he may have to withhold any information leading to the whereabouts of the mother.” A father in this situation does not have a ‘right of access’ – if a parent needs information to fulfill his duties to his child as the responsible adult, they must get that information but no more. Indeed, there is an argument that parents aren’t making conventional subject access requests for their child’s information at all – medical professionals must give them everything they need to know, but if PR is the key, then they may not need a copy of the whole record to satisfy that. Fixating on PR also ignores the fact that a relative like a grandparent or another carer – who almost certainly won’t have PR – may well be an appropriate person to provide information to in some circumstances.

The author is keen to conflate the medical records issue with the headline-grabbing case of Neon Roberts, the child whose mother and father are at odds about whether he should receive radiotherapy. While this real-life and tragic variation on Kramer Versus Kramer is clearly newsworthy, it’s almost completely irrelevant to the question of access to records. Meanwhile, a much more important issue is only hinted at. This is the child’s information, and the child’s right of subject access. While a parent who has PR and needs to make difficult decisions should not be denied information that they need to protect their child’s best interests, neither the child or its information is the property of its quarrelling parents.

The famous Gillick case – Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL) – establishes that a child with sufficient capacity can make their own medical decisions. A similar, more recent case – (R (Axon) v Secretary of State for Health and the Family Planning Association [2006] EWHC 37 (Admin) – underlines this same principle. If a competent child can consent to medical treatment and keep it confidential from their parents, naturally they will also be entitled to decide who gets access to their information. Babies and infants will clearly need a concerned parent to act for them, but even a snotty 12-year-old may be mature enough to be involved in a decision and decide who gets to know what.

Journalists are sometimes keen to slate Data Protection as an unnecessary and bureaucratic barrier to transparency. Often, what they’re complaining about is the misuse of Data Protection by officials, compounded by their own ignorance of what the legislation actually says. The Guardian’s article shows symptoms of this same disease – GPs cannot negotiate this territory without a functioning knowledge of the Data Protection implications, and journalists who attempt to write about these issues need the same. Otherwise, we get hand-wringing and headlines, but none of the clarity this issue requires.

Filed under: Data Protection

Meet the New Year, same as the Old Year

2012-12-31T22:43:19+00:00

It’s always difficult to mark the arbitrary end of an entirely artificial unit of time by picking resolutions to change your life in unfeasibly unrealistic ways that you’ll never manage to achieve. So instead of promising that you’ll exercise more, drink less, and stop massacring innocent civilians with drone strikes, why not take this opportunity to have a stranger recommend some Data Protection themed resolutions instead? You can eat and drink as much as you like and tell Duncan Bannatyne to stick his gym membership somewhere awkward, and still keep up with them.

1) Back up your stuff

This should not be anyone’s resolution in the 21^st Century, but numerous times over this festive season I have met or seen tweets from people who were mugged, burgled or otherwise the victims of theft, and still others who saw their computers or laptops go belly-up. One of the stories – a children’s author whose treasured work was apparently gone forever – was heart-breaking and yet completely avoidable. Repeat after me: my data and my equipment are not the same thing as each other. No matter how costly and inconvenient the loss of your equipment might be, your data does not need to go the same way.

I have backup OCD. All my music is in the iCloud. I back up my Mac to an external hard drive using Apple’s Time Machine, many of the same documents are in Dropbox as well (I hold back anything I consider to be confidential just in case). I have a couple of additional hard drives that I periodically dump everything on and then hide someone unlikely. This means that if someone breaks into my house and steals all of my (encrypted) toys, they’ll have a bonanza at the car boot sale, but the things I cannot replace – my holiday photos, my almost-finished Data Protection book, my actually finished but apparently unpublishable novel – still exist. Even if the thieves took the back-up hard drive, I’d have a copy of my data somewhere else. I have done some Faustian deals with some companies I don’t trust to achieve this, but I’ve decided it’s worth the risk.

We live a digital world; many of the things you treasure the most, that you need to earn a living or get your qualifications are likely to be digital. Many back-ups can be done automatically and some of them are even free. You have no excuse. If you haven’t already, sort it out now.

2) Just Say No

The next time someone rings you up and, before whatever transaction they want to do, asks you to confirm some details, resolve to do this simple thing. Say no. You will ring them back with good grace, but when Johnny Call Centre wants you to give your data out, Just Say No. The Identity Theft Menace is wildly overhyped by bullshit-hawking fear mongers, some of them with agendas that go far beyond avoiding credit card fraud. Moreover, I believe that much of the fraud that goes on originates not with the customer’s sloppy data handling, but with poor security at the credit card company or the bank. (and relax…)

However, ringing people up and asking them for the credentials required to get access to accounts is totally irresponsible. It softens the public up to give out their information and sooner or later, the caller may not be some bored minimum wage phone jockey. I had this experience recently, and the card company (Tesco) were clearly unsurprised that I wanted to ring them back. Within five minutes of the original call, I was even speaking to the same person who had called me.

The only way this ludicrous and unnecessary security risk may stop happening is if enough of us resist it – even if it’s a fraud enquiry, tell them you’ll call them back.

3) Read the small print

There is a massive, uncontrolled and unmeasured market in personal data in the UK. Your personal details are bought and sold every day. Some of this trade is illicit and will always be difficult to control. However, much of it is entirely legal and the laziness or ignorance of the average citizen allows it to happen, and incidentally, allows the cowboys to claim that they are trading ‘opted-in’ data, because who can really say what boxes they have or haven’t ticked?

So from today forward, never fill in a form unless you have read all of it. The small the font size, the more incomprehensible the legal gibberish, the more keen you should be to push on. Some websites offer you a simple plain English explanation of how they intend to use your data – they are the exception. In 2013, do not fill in a form, do not sign a contract, do not surrender your personal information to *anyone* without reading the small print. Years ago, my Dad was signing a credit agreement in a well-known catalogue shop, and he practically had to wrestle the woman behind the counter to get a look at the T&Cs. As we live in a digital world, much of our interactions with those keen to get our details are done virtually – so take five minutes of your precious time, read the small print and make sensible choices about what you want to happen to your information.

4 Just Say No Again

A short while ago, I saw a message appear on Twitter. It was brief but staggeringly unambiguous. I’m too squeamish to tell you exactly what it said, but it was pretty obviously a misfired Direct Message to a secret lover. Minutes later it vanished. I don’t know how many people saw it, but none of us could have been under any illusion about what it might have meant.

A well-known cancer charity is encouraging us all to go for a month without alcohol. May I humbly suggest that you spend January NOT sharing the intimate details of your personal life with everyone else? If this is too much, perhaps try this alternative: don’t share the intimate details of someone else’s personal life – your mates, your family, your kids, whoever it happens to be. Just experiment with a personal life, rather than a shop window, and see how you like it. I was really disappointed the first time I heard someone come out with the line about social networking that the user is the product, not the customer (I thought I was the first to think of it), but the idea is vitally important and should not lose its salience by being a cliché. You may not be a beautiful and unique snowflake, but you are equally not a box of Cornflakes. Do not let your life be commoditised so easily. Stop sharing, even if only for a little while. See what happens.

Or alternatively, just imagine what will happen the next time you go for a job and all of this stuff is available to the interview panel.

And that’s all. Whoever you are, I hope you’re in good fettle and that the New Year brings you good luck and fine dining. My resolutions are to wear my bike helmet more often and be nicer to other people. As I do neither of these things at all, I may even succeed. Chin chin!

Filed under: Data Protection Tagged: I mean it about the back-up

Some tweeters to follow in 2013

2012-12-31T14:36:17+00:00

I have had the great pleasure of following so many amazing and interesting people on Twitter and below are some of my recommendations of who you should follow in 2013 if you don’t already follow them:

The Prison Lawyer (@theprisonlawyer) – a regular tweeter who more often than not has interesting things to say. He tweets about a wide range of things and is passionate about justice. He has taken to the internet this year and been to ‘Twitter Jail’ over his support for #protestforjustice. His tweets are informative. He took a few small steps into the world of blogging in 2012 and I hope we’ll see more blogs from him in 2013!

Adam Wagner (@Adamwagner1) – a tweeting and blogging Barrister with a focus on Human Rights. Tweets are always interesting and informative. He’s very good ate challenging the human rights myths told by the mainstream media. If you want a true understanding of Human Rights in the UK then Adam’s definitely a good person to follow.

Paul Gibbons (@FOIManUK) – Paul works for a University dealing with Freedom of Information. His blogs and tweets from the practitioner’s point of view are interesting and informative. He has done a lot to help try

Claire Mitchell (@madisonmitchel1) – tweeting Scottish Advocate who specialises in Criminal law. Interesting and insightful tweets

The Firm (@TheFirmOnline) – Account operated by Steven Raeburn, Editor of the Firm Magazine and Social Media trainer. An excellent sources for news about what is happening in the world of law. The Firm is always the first place I check for the latest legal news

The Custody Sergeant (@TheCustodySgt) – An anonymous custody sergeant working somewhere in England who tweets and blogs about policing. His tweets and blogs often present an interesting and informative alternative to what is presented in the news. It’s clear from his tweets and blogs that he is passionate about policing and has a great deal of compassion.

Love and Garbage (@loveandgarbage) – interesting and often amusing tweets and blogs. He is also an expert on the pronunciation of scone.

Tina McGreevy (@tinamcgreevy) – always interesting tweets. Passionate about justice and very vocal on twitter about #Protestforjustice

Waqqas Ashraf (@DefenceAgentWA) – first year trainee solicitor in Scotland. Passionate about justice and another active and vocal person in the #protestforjustice. Great guy to tweet.

Jon Baines (@bainesy1969) – Another FOI and Data Protection tweeter. He writes great blogs on information rights and vocal about the protection of FOI rights.

Prison Chaplain (@hmp_chaplain) – Interesting tweets about life on the inside from the point of view of a prison chaplain. They’re important people inside our prisons and the Prison Chaplain’s tweets often get me thinking about things that I might not otherwise have considered.

Ollie (@dietjustice) – blogs and tweets about law, policing and politics. His tweets and blogs are interesting and informative and can get a good discussion going.

Brian Inkster (@BrianInkster) – another Scottish legal tweeter. He was the first Scottish solicitor to use twitter. Tweets and blogs about interesting things and is a decent guy. Uses twitter and social media in innovative ways. Can’t wait to see what he and his firm @Inksters will come up with in 2013!

Tim Turner (@tim2040) – another FOI and DPA tweeter who is worth following if you have an interest in FOI or Data Protection. He knows his stuff!

Deborah Dillon (@infogovgeek) – A Scottish information governance tweeter. I’ve enjoyed tweeting her this year.

There are many more tweeters who I have enjoyed tweeting and/or reading their tweets during 2012. If I listed them all here it would be far too long so these are just some of my favourites! Watch out for my first #ff of 2013 where even more of my favourite tweeters will get a mention.

That’s all from me on this blog for 2012 and I’ll see you all in 2013 with more blogs on law and politics in the UK!

Unkindleness

2012-12-28T19:09:05+00:00

Like many other dads, and mums and ordinary human beings I received a Kindle as a Xmas present. Having ripped off the wrapping paper and found it had power I registered my device in the process passing my contact details … Continue reading →

ICO announces latest list of authorities for FOI monitoring

2012-12-21T11:19:44+00:00

ICO news release: 21 December 2012

The Information Commissioner’s Office (ICO) has announced that four public authorities will be monitored for three months in the new year over concerns about the timeliness of their responses to Freedom of Information requests.

The ICO will monitor the Department for Education, the Department for Work and Pensions, the Office of the First Minister and Deputy First Minister (OFMDFM) in Northern Ireland and Wirral Metropolitan Borough Council between 1 January 2013 and 31 March 2013.

The authorities were selected as they failed to respond to 85% of FOI requests within the time limit of 20 working days or had exceeded the time limit by a significant margin on numerous occasions. Three of the authorities have been the subject of a number of complaints to the ICO over the timeliness of their responses, while the OFMDFM performance statistics for all requests received during 2011 show that only just over half were answered on time, with further delays encountered this year.

Commenting on the publication of today’s list the Information Commissioner, Christopher Graham, said:

“We will monitor the authorities named today for three months, and may take further action after this monitoring period has expired if we don’t see the necessary improvements in each authorities’ standard of compliance. It is particularly disappointing to see that the advances previously made by the Department for Education, the Department for Work and Pensions, and Wirral Metropolitan Borough Council – which were introduced following concerns after previous rounds of monitoring - have not been continued.

“This is not good enough and we expect these authorities to take the necessary measures to ensure that they are meeting their obligations under the Freedom of Information Act. We will provide support and advice where we can, but reserve the right to take further action if they fail to step up to the mark.”

View further information on the ICO's monitoring compliance scheme

Three of the four authorities on the latest list have been monitored for delays by the ICO before. The Department of Work and Pensions and Wirral Metropolitan Borough Council were monitored by the ICO between 1 October and 31 December 2010. The Department for Education was monitored between 1 April to 30 June 2011. According to the latest statistics, several other government departments are also failing to respond to at least 85% of requests in 20 working days (see earlier post).

DfE to face special FOI measures

2012-12-21T10:33:10+00:00

In September the Department for Education abandoned the controversial legal case it had been fighting to try to establish that emails sent by ministers on personal email accounts were not covered by the Freedom of Information Act.

This position was in defiance of the clear stance adopted by the Information Commissioner Christopher Graham, who had already ruled that all emails sent on government business could fall under FOI, whether an official or private account was used.

The Department's arguments had been widely derided by those with knowledge of information law, and presumably it dropped its appeal after realising that it was hopeless to pursue this long-standing dispute any further.

The DfE's difficulties with implementing the FOI Act were re-emphasized last week, when the latest statistics on the performance of government departments were released.

In the latest quarter it had the worst record out of all departments in England for responding to FOI requests within the legal time limit, managing this in only 74% of cases. Some other departments such as Health had a 100% score.

So it's not surprising that the Department for Education has today been put under special monitoring by the Information Commissioner's Office because of its inadequate record on FOI. This is a bit like the ICO's equivalent of schools being placed in special measures following a critical inspection by Ofsted. The ICO increases its checks on poorly performing authorities until it is satisfied that their procedures have improved.

Three other public authorities have also been targeted today by the ICO for close monitoring due to their unsatisfactory handling of FOI applications. They are the Department of Work and Pensions (DWP), the Office of the First Minister and Deputy First Minister in Northern Ireland (OFMDPM), and Wirral Metropolitan Borough Council.

The DWP was another department which ranked badly in the latest central government statistics, only meeting the legal deadline for 83% of requests.

The OFMDPM has also suffered a recent reversal in a high-profile FOI legal battle, eventually being forced to disclose details behind the decision to exempt Roman Catholic schools in Northern Ireland from fair employment legislation.

The Office has been severely criticised for its recent performance on FOI.

The DfE, DWP and Wirral Council have been subject to special monitoring from the ICO in the past.

The Information Commissioner Chris Graham says: "It is particularly disappointing to see that the advances previously made by the Department for Education, the Department for Work and Pensions, and Wirral Metropolitan Borough Council - which were introduced following concerns after previous rounds of monitoring - have not been continued.

"This is not good enough and we expect these authorities to take the necessary measures to ensure that they are meeting their obligations under the Freedom of Information Act."

Government's FOI reforms would block difficult requests

2012-12-19T11:28:53+00:00

Government plans to amend the Freedom of Information Act would make it harder for requesters to obtain answers to new, complex or contentious FOI requests, according to the Campaign for Freedom of Information.

The government is proposing to make it easier for public authorities to refuse time-consuming requests. At the moment, authorities can refuse requests if they estimate that the cost of finding and extracting the information exceeds certain limits. The government wants to allow them to also include the cost of considering the request and deleting exempt information.

The Campaign is particularly concerned at the proposal to allow an authority to include its 'thinking time' in the cost calculations. The Campaign's director Maurice Frankel said: "The longer an authority needs to think about a request, the greater the chance of it being able to refuse to answer on cost grounds. Requests involving unfamiliar, complex or contentious issues all of which require substantial 'thinking time' would be likely to be refused under these proposals. This would prevent the Act from dealing with difficult issues or breaking new ground."

Many kinds of requests are only time consuming because they raise new issues. Once these have been worked through, and particularly once case law is available, decisions may be easy, the Campaign says. The government's proposals might prevent this happening by permitting such requests to be refused on cost grounds without ever addressing the issues they raise.

The Campaign also says estimates based on thinking time are likely to be subjective. "They may depend on the novelty of the issues to the authority, the FOI officer's experience and judgment. They may also be easily manipulated. Authorities may deliberately estimate that they would have to consult more officials than is strictly necessary in order to boost the consideration time and increase the chances of being able to refuse the request on cost grounds" said Mr Frankel.

The government is also proposing to allow the cost of unrelated requests made by the same individual or organisation to be aggregated so that all of them can be refused if the total cost exceeds set limits, currently £600 for government departments or £450 for other authorities.

The Campaign says local newspapers, which cover a range of different issues involving the same authority, would be the first casualties of this proposal. "A single request about school exam results might be enough to reach the cost limit. Thereafter the whole newspaper - not just the individual journalist - might be barred from making any further FOI requests to the authority for the next quarter, even on different issues such as child abuse, road safety or library closures" said Mr Frankel.

The government says it wants to address the problem of requests that are time-consuming to deal with but which authorities cannot refuse because the records are easily found. It also wants to address the 'industrial' use of the Act by some requesters who make disproportionate use of the Act. The Campaign says if these are the concerns, it should specifically target these situations - not change the rules across the board in ways that will block even modest use of the Act.

The Campaign is also concerned at the government's suggestion that charges might be made for appealing to the Information Rights Tribunal. It says these would deter requesters with well-founded cases from appealing against decisions that they would be likely to win.

The Campaign welcomed the government's decision not to introduce charges for FOI requests or to introduce additional exemptions to protect cabinet papers or sensitive policy discussions.

However, the government has rejected proposals to tighten up the time limits for responding to FOI requests which it says would add to the burdens on authorities. It has also refused to require authorities to publish their statistics on compliance with FOI time limits. The Campaign says it is disappointing that even this modest proposal has been rejected.

The government's proposals, published at the end of November are contained in its response to the Justice select committee's report into the operation of the Freedom of Information Act.

The Campaign has published a commentary on the government proposals.

FOI Media Update - December 1st to 14th 2012

2012-12-17T12:12:55+00:00

Your £1 million bill for jet-set BBC bosses: Corporation spent huge sum on flights to U.S. in just seven months - Mail Online - 14.12.12
The BBC spent more than £1 million on flights to America in the space of seven months this year, according to figures obtained under the Freedom of Information Act.

Prince of Wales 'should be forced to answer freedom of information requests', court told - The Telegraph - 13.12.12
The Prince of Wales should be forced to abide by freedom of information laws so that environmentalists can ensure he is managing the Duchy of Cornwall properly, a judge has been told. The Duchy claims that it is a private entity, and is therefore exempt from the Environmental Information Regulations (EIR), under which public bodies must disclose information on activity that impacts the environment. In the latest round of an argument begun in 2008, the Upper Tribunal in London was told that the Duchy's control of assets made it a public body in all but name.

At a previous hearing, an Information Rights Tribunal ruled that the Duchy was a public body for the purposes of the EIR, but the Duchy successfully applied for a stay of proceedings while a test case is heard in the European Court of Justice. In the latest hearing Mr Justice Charles ruled that the stay of proceedings should remain in place until the ECJ makes its ruling.

Live animal exports going via previously unknown routes - The Guardian - 13.12.12
Farmers, lorry firms and shipping companies have been operating a hitherto unknown route for live export of animals as controversy over the trade through Ramsgate intensifies. Cattle from farms in England and Scotland have been transported unknown to welfare campaigners. The government's Animal Health and Veterinary Laboratories Agency (AHVLA), responsible for ensuring proper welfare arrangements, has revealed nine consignments totalling more than a thousand cattle were sent out of the UK in this way in the first half of 2012. The figures were released to Compassion in World Farming in response to Freedom of Information requests but the AHVLA withheld information about which port or ports are used and the final destinations of animals, claiming doing so might jeopardise the health and safety of its staff.

Harrow has lost 100 police officers, claims Gareth Thomas MP - Harrow Times - 13.12.12
The Harrow West MP claims to have uncovered data, using a Freedom of Information Act request to the Metropolitan Police Service, which shows that Harrow has lost 100 police officers in two years.

M25 cameras fail to catch a single speeding driver in past year - The Huffington Post - 13.12.12
Not a single driver on the M25 has been caught or fined for speeding in the past year because the cameras don't work. Some police authorities were reluctant to supply details in response to Freedom of Information requests. The Metropolitan Police took more than 40 days to respond and originally refused to reply for "fear of repercussions".

Bus support 'cut for second year' - BBC - 12.12.12
More than 40% of local authorities in England have cut spending on supported bus services this financial year.

£6,000 worth of VIAGRA and anti-smoking pill among items stolen from military bases - Mail Online - 11.12.12
Details of thefts from military bases were disclosed by the MoD's Defence Fraud Analysis Unit in response to FOI request.

Kirklees Council leader Mehboob Khan cleared on FOI tampering claims - The Huddersfield Daily Examiner - 11.12.12
A tribunal has found that Kirklees Council leader did not interfere with the public's right to access information under the Freedom of Information Act.

The group which doesn't know its chief executive's pay - BBC - 10.12.12
An educational organisation, United Learning, which runs 31 schools has told the Information Commissioner that it doesn't hold any information on what its chief executive, a former senior civil servant, is paid.

The £13m redundancy bill for Norfolk and Suffolk councils and police - Norwich Evening News - 10.12.12
Councils and police forces in Norfolk and Suffolk spent £13.2m making more than 1,200 workers redundant in just 12 months.

Lancashire school abuse figures are a 'concern' - Lancashire Evening Post - 10.12.12
Nearly 500 allegations of physical and sexual abuse were made against people working in Lancashire schools over the past three years. New figures, which came to light as a result of a Freedom of Information request, reveal that the county has sacked more school staff, including teachers, than anywhere else in the country as a direct result of the claims.

Funding and staff 'cut' for cancer networks - BBC - 10.12.12
Clinical networks which oversee the care of cancer, heart and stroke patients in the NHS have had their budgets and staff cut, data obtained under Freedom of Information shows.

Tory MP in battle with ministers over 'snooping bill' safeguards - Spectator - 09.12.12
A Tory MP is engaged in a fight with the Home Office on safeguards for its draft Communications Data Bill. Part of the government's justification for the bill rests on filtering arrangements. Conservative MP Dominic Raab, who is deeply concerned about the legislation, is irritated that the government is refusing to provide information on how those filtering arrangements will work in practice. He is appealing to the Information Commissioner's Office after having a Freedom of Information request refused by the Home Office.

Lockerbie bomber: Nelson Mandela and Archbishop Tutu urged to back release - BBC - 07.12.12
The Scottish government asked Nelson Mandela, Archbishop Desmond Tutu and former Irish president Mary Robinson to back its decision to release Lockerbie bomber Abdelbaset al-Megrahi. Emails sent to prominent figures have been published after a Freedom of Information request.

Shock RAH findings unearthed by patient - Paisley Daily Express - 07.12.12
Death rates at the Royal Alexandra Hospital double at weekends. Figures obtained under the Freedom of Information legislation show that the Monday to Friday death rate at the Paisley hospital is around two per cent - but this increases to around four per cent on Saturdays and Sundays.

Research data win exemption from FoI Act - Times Higher Education - 06.12.12
The government has agreed to introduce an exemption to the Freedom of Information Act to prevent the premature disclosure of research data. Universities UK has campaigned for an exemption because it feared that researchers could use the act to "scoop" raw experimental data from rivals and beat them to publication.

Car Thief paid £2,000 compensation after police dog bite during arrest - Telegraph - 05.12.12
A car thief has been paid £2,000 in compensation by a police force after he was bitten by one of its dogs during his arrest. The payout came to light following a Freedom of Information request regarding people who had sued Notts Police over dog bites in the past three years. In total, over £19,000 has been paid to six claimants.

Police are armed with bullets too cruel for warfare - Cambridge News - 05.12.12
A controversial type of bullet used to kill Charles de Menezes has been given to Cambridgeshire's armed police. The revelation that the constabulary has armed officers with the bullet - which was banned in warfare more than a century ago - came after a Freedom of Information request.

Liberal Democrats hit out at Haringey Borough Council for spending £40m on agency staff and consultants - Haringey Independent - 04.12.12
Opposition councillors have criticised Haringey Borough Council for spending more than £40m on agency staff and consultants. According to figures from a Freedom of Information request, the council has spent £38m on temporary agency staff and a further £1.6m on consultants since 2010.

Student suicides rise along with debt burdens - Times Higher Education - 04.12.12
The number of students taking their own lives rose by 50 per cent in four years. The statistics, released via a Freedom of Information request made by Ed Pinkney, the founder of Mental Wealth UK, a student mental health charity. According to Mr Pinkney, the figures come in the light of growing pressures on students caused by rising costs and gloomy job prospects.

London councils face questions for housing families outside the capital - The Guardian - 03.12.12
Reduction in number of affordable properties has led authorities to send families as far away as Cornwall and Newcastle. Research has revealed the scale of plans being drawn up to send families to live in temporary housing outside the capital. Eighteen of those councils responding to Freedom of Information requests anticipate having to place people outside of Greater London next year to cope with the rising numbers of homeless families.

Talking point: Hospital safety - Holyrood - 03.12.12
Around one in ten patients who are admitted to hospital suffer an adverse event - some more serious than others. Hundreds of previously hidden reports that detail some of the most serious incidents in Scotland's hospitals last year have now been published by BBC Scotland, following a Freedom of Information request.

Nearly 200 compensation claims brought against Redbridge hospital trust in two years - Ilford Recorder - 03.12.12
A Freedom of Information request by the Recorder revealed that nearly 200 compensation claims have been made against Barking, Havering and Redbridge University Hospitals NHS Trust in last two years.

HS2 'is likely to lower the value of up to 170,000 homes' - Independent - 02.12.12
The value of more than 40,000 homes - and possibly as many as 170,000 - could be hit by the proposed new HS2 rail line, yet ministers are proposing to compensate fewer than 2,000 owners, campaigners have warned.

Move to 20 year rule / reduction in lifespan of FOI exemptions implemented

2012-12-14T21:35:59+00:00

An Order has been made implementing the reduction of the '30 year rule' to 20 years and the lifespan of some of the FOI Act's exemptions to 20 years, amendments that were made by the Constitutional Reform and Governance Act 2010. The changes will take effect from 1 January 2013. Two further orders making transitional arrangements to phase in the changes, as set out by Lord McNally in a written ministerial statement, have been laid before Parliament:

This is a major change and it is therefore important that it is introduced in a manageable and affordable way. A phased approach will be adopted. The point at which records are transferred to The National Archives (largely central government records) will be reduced from 2013 over a ten year transitional period, with two years worth of records being transferred to The National Archives every year until transition is complete. From 2023, when this transition is complete, we will transfer the single year’s worth of records which are caught by the ‘20 year rule’ each year. This first stage of the change will affect an estimated 3.3 million records and cost an estimated £34.7-£38.5 million over ten years.

We then intend to begin from 2015 a similar ten year transitional period for records transferred to 116 local authority places of deposit, subject to the outcome of further detailed work on costs and the impact to the local authority archive sector. Current estimates of the cost of the second phase are £5.6 million to £15 million over ten years. This will ensure that the ‘20 year rule’ is implemented in an affordable way that achieves the greatest level of transparency.

The maximum lifespan of a number of exemptions provided by the Freedom of Information Act will be reduced for all public authorities in parallel with the first transitional period. From 1 January 2014 the maximum duration of the following exemptions will reduce by one year per annum over a ten year period: sections 30 (investigations and proceedings conducted by public authorities); 32 (court records); 33 (audit functions); 35 (formulation and development of government policy); 36 (prejudice to effective conduct of public affairs), except in relation to Northern Ireland and the work of Executive Committee of Northern Ireland Assembly; and 42 (legal professional privilege).

The Constitutional Reform and Governance Act 2010 (Commencement No. 7) Order 2012

The Public Records (Transfer to the Public Record Office) (Transitional and Saving Provisions) Order 2012

The Freedom of Information (Definition of Historical Records) (Transitional and Saving Provisions) Order 2012

The two transitional orders will come into force on 1 January 2013 subject to annulment by a resolution of either House of Parliament, i.e. they will have effect unless they are specifically rejected.

Central government FOI performance Jul-Sept 2012

2012-12-14T13:57:22+00:00

The quarterly FOI statistics for central government for the period July to September 2012 (quarter 3 2012) have been published. They show that the volume of requests to monitored bodies fell slightly - 2% less the equivalent period of 2011 and 1% less than the previous quarter of 2012. The executive summary notes:

Although there has been considerable quarter-on-quarter variation, monitored bodies have received a generally increasing number of requests since 2007. This has been driven by an increase in requests to Departments of State. However, there is some evidence the increase has slowed in the last two years. The peak in Q1 2012 was due to large rises in requests to the Department of Health and the Department of Work and Pensions, regarding controversial policies being introduced. Requests to the Department of Work and Pensions remain high, but requests to the Department of Health have returned to their Q4 2011 levels.

Monitored bodies answered 87% requests within the statutory 20 working day deadline. For central government departments the figure was 85%. Departments answering less than 85% of requests within the Act's timescales face being monitored by the ICO (see the ICO's criteria). The last round of monitoring by the ICO was April-June 2011, but it has said the next list of authorities will be announced before the end of the year.

Nine government departments answered less than 85% of requests in 20 working days, the most recent statistics show. The Wales Office had by far the worst performance. It answered only 54% in 20 working days despite receiving only 37 requests. The Department of Health has had a near perfect record on timeliness for the last 3 years. Since Q4 of 2009 it's answered at least 98% of requests in 20 working days. It managed to answer 100% of requests in 20 working days in Q1 of 2012 when it received double 1,077 requests, more than double the department receives on average. It would be interesting to know what factors, or combination of them, lie behind the Department's efficiency e.g. resources, experienced FOI team, or senior leadership.

The latest bulletin also comments that the proportion of requests granted in full has slowly reduced since the Act's introduction which it says "may reflect the changing nature of requests as the monitored bodies have made more routine information available to the public".

Doubts on disabled police figures

2012-12-13T09:01:46+00:00

How many disabled police officers are there in each force in England and Wales?

Judging by the statistics that each force gives to the Home Office, the answers would appear to be somewhat surprising.

In Cleveland there's just one. In Greater Manchester, however, there are 376.

In Avon & Somerset the number jumped from five to 72 last year. In Nottinghamshire it more than doubled in one year, and then the next year it fell back by more than half, to about the original number.

These statistics are reported annually by police forces in England and Wales to the Home Office. The government does not publish them, but the BBC has obtained them through a freedom of information request.

The examples quoted are only a few of numerous dramatic discrepancies and rapid fluctuations exhibited by the data. Can they truly reflect real and sudden changes in the demographic composition of the various police forces? It seems unlikely.

The statistics are based on officers declaring themselves as disabled or not. Under the law a disability is considered to be a physical or mental impairment which would substantially affect the ability to carry out normal daily activities for at least a year.

The fluctuating figures are more likely to be explained by inconsistencies in these self-declarations.

And this suggests that, although these statistics are collated by forces under instruction from the Home Office and then submitted to central government, they have to be treated as somewhat unreliable.

Whether staff members in any workforce would want to declare themselves as disabled clearly depends on a variety of factors. This would include the internal culture of the organisation, the attitude of management, and the pattern of incentives as perceived by the staff. The police data certainly raises doubts about the accuracy of such workforce statistics.

A spokesperson for the Association of Chief Police Officers acknowledges the problem: "Self-declaration of disability can cause fluctuations between years.

"The police service will continue to encourage officers to declare their disability where it applies, not for the purpose of keeping the numbers up or consistency for its own sake, but because we can better support disabled officers if we know about and understand their disability."

"This picture clearly isn't representative of the demographics of each force," says Rob Gurney of the Disabled Police Association.

He argues that there is under-reporting by officers who are scared to notify a disability, especially at a time when posts are being cut: "With the worry of ill-health retirements, financial cuts etc, it's not a surprise to find forces having a low declaration rate."

The Home Office says that the issue will be tackled by the College of Policing, the new professional body for the police which is being created. It insists that forces must monitor and record the number of disabled officers.

Some forces have figures which are more stable and more plausible. For the sake of completeness the figures we obtained - such as they are - are given in the table below.

Avon & Somerset Police says it has been encouraging its officers to enter more details about themselves on the staff database and that could explain the rapid jump in its number.

Cambridgeshire Police has told the BBC that its figure for 2009/10 is incorrect and probably includes officers who preferred not to state whether they were disabled. This error may be because the force gave the wrong information to the Home Office.

The figures, which the Home Office describes as provisional and unverified, are compiled on a full-time equivalent basis.

Disabled police officers, England & Wales

Police force

2009/10

2010/11

2011/12

Avon & Somerset

Bedfordshire

Cambridgeshire

133

Cheshire

Cleveland

Cumbria

Derbyshire

Devon & Cornwall

Dorset

Durham

Dyfed-Powys

Essex

Gloucestershire

Greater Manchester

303

348

376

Gwent

Hampshire

Hertfordshire

Humberside

Kent

Lancashire

Leicestershire

Lincolnshire

London, City of

Merseyside

Metropolitan Police

184

181

177

Norfolk

Northamptonshire

Northumbria

North Wales

North Yorkshire

Nottinghamshire *

South Wales

South Yorkshire

Staffordshire

Suffolk

Surrey

Sussex

Thames Valley

Warwickshire

West Mercia

West Midlands

West Yorkshire

Wiltshire

TOTAL

1807

1960

1998

Nottinghamshire Police have got in touch to say that they misreported their figure for 2010/11 which should actually be 43. (The BBC contacted them about the fluctuation in their data two days prior to the publication of this blog entry, but the force did not respond to us pointing out their error during this period).

Not now, Brian, we’re busy

2012-12-12T13:02:50+00:00

Imagine that you are employed by a mobile phone network. Somebody working for a claims management firm approaches you, offering a large sum of money to steal the customer database, especially the mobile numbers. They want to send PPI claim text messages to all of the people on the list. You download the customer data, sell it, and pocket the proceeds. Having got it, you decide to sell the list to a rival mobile company. You put the information on a disc, and flog it on eBay. The people who send the PPI texts could receive a Civil Monetary Penalty of up to £500,000 as they do not have consent. But even if you are caught and prosecuted, the worst that can happen is to the thief is a maximum £5000 fine. The offence is not recordable, so you will not end up with a criminal record. The chances of being caught are slim, but the deterrent is even smaller.

Imagine if the government had long ago realised that the fines were not enough, and had taken the trouble to amend the law to punish white-collar data thieves with up to two years in jail. But around the time the law was being changed, the Prime Minister of the day met with representatives of a special interest group. Despite the fact that the new punishment was not intended to affect this group and detailed measures had been taken to protect them, the lobbyists were not satisfied, and they demanded that the prison sentence be held back. Even though the chances of their industry being affected by the change were very small, they could not accept even the slightest possibility that any one of their number could even face the possibility of a night in a cell.

If anyone else had held the country to ransom and prevented changes to a law that were entirely in the public interest, the press would be up in arms, pointing the finger with relish. If unions, lawyers, doctors or social workers – indeed, any regulated profession – expected crimes to have puny, worthless punishments just in case one of their own was imperilled, the Daily Mail would shout their condemnation from the highest rooftop.

And yet, we’re supposed to swallow the narcissist tide of special pleading from journalists, all in the name of press freedom, and tolerate a rampant black market in personal data in order to protect them. The Information Commissioner is obviously desperate to tackle it, but the results in court are often ludicrous. The man who received stolen medical data from his girlfriend to use for personal injury claims was fined £1050. He memorably boasted after the verdict “We’re going to Bella Italia after this and I’m having a fillet steak”. A bank worker stole information from her employer about the victim of a sex attack committed by her husband. Her punishment was an £800 fine. Whatever you think about the publication of the BNP member address list, a fine of £200 for endangering life (and probably risking mass misidentification) is almost satire.

This is the world that journalists expect us all to tolerate so that they are safe. Gone is ‘publish and be damned’, to be replaced with ‘publish and be insulated from the consequences’. A number of Parliamentary committees have called for the sentence to be enabled, and the Information Commissioner himself is routinely excoriating about a system where the punishments for data theft are so derisory. In the recent past, the constant refrain from Government has been: wait for Leveson. We cannot pre-empt Leveson.

And now, Leveson has spoken, and regardless of what you think about the doomed suggestion of statutory underpinning and regulation, the data theft issue is very simple. Leveson argues for the prison sentence to be made live. When drafted, the Data Protection Act contained a public interest defence, which in my head should be enough to reassure any journalist. Even if accused of outright data theft, the public interest that press freedom surely exists solely to serve would shield the righteous hack from unjustified punishment. When the last Labour Government recognised the failure of the current system, they amended the DPA still further, making clear that all a journalist needs is a ‘reasonable belief’ that they are acting in the public interest to escape prosecution. Even though the prison sentence was not brought into force, this additional defence was.

At this point, before saying something contentious, the sensible writer includes a few sentences about how important they think press freedom and journalistic endeavour are. The secret hope of every blogger is probably that their sublime writing will catch the eye of a sympathetic editor and they will be catapulted from the amateur sphere and be given a weekly column, or at least a spot of freelance at the Guardian. Biting that hand that hasn’t even picked up the food is surely blogger suicide. I can’t be arsed. I honestly don’t want to live in a country where journalists get locked up for doing good work, but I think I live in a country where newspapers can get mixed up in axe murders with impunity, so I doubt that Fleet Street will crumble if I fail to invoke the spirit of Voltaire before suggesting something that hacks might see as a check on their activities. They have David Cameron, Michael Gove and Boris Johnson and that’s all they need.

Besides, I come to exempt journalists, not to bury them. I think that the only way that the data theft problem can be solved successfully is if journalists are removed from the equation. Lord Justice Leveson has proposed significant amendments to the S32 exemption from DPA, which allows those processing personal data for journalistic, artistic and literary purposes to escape virtually all of the Data Protection principles, apart from security, as long as this is ‘necessary’. I think Sir Brian’s ideas don’t address the bigger picture, and should be binned. We know that the press will never support any infringement of their liberties, whatever the justification, and they will monster anyone who supports such a plan. Meanwhile, the possibility of a prison sentence is likely to have a much better deterrent effect on office workers, nurses and cops tempted to steal or suborn others to steal personal data than a paltry fine and no record. If newspapers feel that they face this threat too, scaremongering about investigative journalists (rather than phone hackers and dumpster divers) ending up behind bars for speaking truth to power (rather than figuratively or actually smelling celebrity knickers) will continue its harmful knock-on effect, and politicians will continue to defer to the power of the press.

S28 of the Data Protection Act gives those using personal data for the purposes of national security a total exemption from its requirements. Rather than continue to have the debate on data theft railroaded by a sanctimonious sideshow, let’s extend that approach to journalists. Give them the ‘get out of jail free card’ they demand and a few act like they already have, and stop our personal data from being plundered everywhere else.

Filed under: Uncategorized

Mystery over pay of schools boss

2012-12-10T17:55:38+00:00

The educational organisation United Learning runs 31 schools, whose aim is to impart knowledge to tens of thousands of pupils.

Yet the organisation seems to have a surprising gap in its own knowledge - it has told the Information Commissioner that it doesn't hold any information on what its chief executive is paid.

As a group of schools including 20 publicly-funded academies, along with 11 independent schools, United Learning receives public money and is a public authority for the purposes of FOI (freedom of information). The organisation is one of England's largest providers of academy schools.

Its chief executive is Jon Coles, who was previously a senior civil servant in the Department for Education.

Academies were brought under the Freedom of Information Act in 2010. The number of academies (now more than 2,000) has been increasing rapidly, and this puts them in line with other state-funded schools.

But this case shows there are limits to the openness that FOI can bring to some organisations involved in providing academies.

Earlier this year United Learning received an FOI request asking for details of the pay and employment packages for its chief executive and other senior management. When it did not supply the information, the requester complained to the Information Commissioner's Office.

United Learning told the Commissioner that its senior management were actually employed and paid by a charity, the United Church Schools Trust. This is a separate but linked charity which is not publicly funded and does not come under FOI.

In a decision released today the Commissioner upheld United Learning's stance that it did not hold the requested information on how much its chief executive and senior management are remunerated. The Commissioner was told that they were not paid out of public funds.

I had hoped to ask United Learning to explain this unusual state of affairs, but the organisation's spokesman told me: "United Learning Trust has no view to express on the case".

A consistent line

2012-12-07T20:37:20+00:00

The Information Commissioner’s Office (ICO) has today published its draft Code of Practice on Subject Access Requests (SAR) for consultation.

There is nothing in the draft code which will cause major surprise. It is largely a rehashing, and minor expansion of material which already exists in his general data protection guidance, and specialist guidance on matters such as accessing information in complaints files, or dealing with requests involving other people’s information.

On first consideration the following matters appear to stand out.

1. A lack of recognition that for public authorities any SAR falls within s1 Freedom of Information Act 2000 (FOIA) so that e.g. the duty to advise and assist applies.

This occasionally leads to a lapse in distinguishing good from mandatory practice. For example on page 10 the draft code suggests that you do not need to respond to a request which is not in writing. For a public authority ignoring the verbal request would be a failure to provide advice and assistance to a persons who propose to make a request for information. Similarly page 41 refers to good practice in providing explanations which should be mandatory for a local authority.

2. In dealing with exemptions the draft code really does not get to grips with the problem, which many find difficult, of dealing with an SAR on those occasions when you simply cannot tell the requester at all about some personal data’s existence or processing, e.g. if there is a note in your file of a police enquiry where, particularly if they have used the ACPO form, the police will have requested non-disclosure. The draft code (top of page 46) refers correctly to denying subject access, but gives no assistance on the right way to do this, and lacks the necessary warning about not giving a misleading answer such as “We enclose all the personal data which we hold…” . I would also have expected here a discussion (for public authorities at least) of when and why there may be a need to use s4o(5)(b)(ii) FOIA in such cases.

3. Finally, and again not surprisingly, the ICO continues his warning about misreading the decision in Ezsias v Welsh Commissioners [2007] All ER (D) 65 (Dec) which appears in the existing Disproportionate Effort guidance.

In doing so he ignores subsequent cases which have strongly indicated that this guidance is wrong. See Elliot v Lloyds TSB Bank PLC & Anor [2012] EW Misc 7 (CC) discussed on the excellent Panopticon blog . See also there Karim Abadir v Imperial College.

Whilst ICO is entitled to take his own view in these areas it is hardly satisfactory to have a situation where there are two routes to enforce an SAR: through the courts under s7(9) Data Protecton Act 1998 (DPA) or via the ICO using the s42 DPA assessment process.

In both the guidance and draft code (see page 24) ICO stresses that Ezsias is not authority for suggesting that a disproportionate effort test applies to finding the information required to respond to an SAR. However ICO wishes to parse it that is hard to reconcile with paragraph 93 of the judgement in Ezsias, which simply states “Under the 1998 Act, upon receipt of a request for data, a data controller must take reasonable and pro-portionate steps to identify and disclose the data he is bound to disclose.” Those reasonable and pro-portionate steps may well in many (or most) cases need to be extensive, but there should be no need to restrict the basic test laid down by the courts.

The ICO is also apparently on a collision course with the courts over the effect of the same authorities on the ability to refuse to deal with an SAR as constituting an abuse. See draft code page 49-50. This arises from the same line of cases mentioned above. The ICO seems to be saying that the courts may decline to exercise their discretion under s7(9) to enforce but in identical circumstances he would exercise his discretion to enforce under s42. The underlying problem appears to be the well known ICO dislike of the Durant decision and its clear statement that the purpose of an SAR is ”… to check whether the data controller’s processing of the data unlawfully infringes his privacy … to take such steps as the Act provides … to protect it … [it is] not an automatic key to any information, readily accessible or not, of matters in which he may be named or involved … not to obtain discovery of documents that may assist in litigation or complaints”.

So the courts are not so much exercising a discretion but taking the view that complaint is mis-founded as the purpose has nothing to do with privacy. I have little doubt however that ICO will continue this approach which is unlikely to be resolved, this side of the new directive, unless someone challenges an enforcement notice after taking the Durant / Ezsias approach.

New FOISA Qualification

2012-12-04T14:03:36+00:00

Act Now Training is pleased to announce the Practitioner Certificate in Freedom of Information (Scotland). This is the first certificated course specifically designed for those who work with Freedom of Information and the Environmental Information Regulations in Scotland. Successful candidates will receive a certificate … Continue reading →

Full Circle – the Government’s response to the Justice Select Committee

2012-12-02T22:32:43+00:00

Paul Gibbons comments on the Ministry of Justice’s response to the Post-Legislative Scrutiny report on behalf of the Save FOI Campaign.

An inquiry set up at the Government’s instigation spends months gathering evidence. It publishes a report making measured, proportionate recommendations. And the Government rejects them and decides to do what it originally wanted to do anyway.

Sounds strangely familiar. And this describes exactly what has happened with the post-legislative scrutiny of the Freedom of Information Act.

On Friday, 4 months after the Justice Select Committee published its report, the Ministry of Justice published its response. And it has brought us full-circle back to the position we were in exactly one year ago.

It is to be welcomed, of course, that the Government has rejected charging for FOI requests, as we reported earlier last week. And that no changes will be made to the exemption for policy formulation.

But in almost every other area the Government has decided to take its own course on FOI. And in many cases we remain in the dark as to what it will do.

The Committee rejected the inclusion of reading and consideration time within estimates of the cost of FOI requests. As indeed did the last Government. But not only has the Ministry of Justice vowed to continue looking at this option, it has also said that it will consider other ways to bring more FOI requests outside the acceptable limit, including a possible reduction in the limit. Overall, whilst paying lip service to FOI’s benefits, the Ministry’s response focusses to an alarming degree on the perceived burden of FOI.

In this context, the Government has decided to look at charging for appeals to the Information Tribunal. Something which, to our knowledge, was never raised during this whole process of review. It is possible this will have limited effect on requesters – as they would only be involved directly in appeals against decisions of the Information Commissioner – but as with much else referred to in this response, we will have to wait for the detail to be sure.

It is widely recognised that the lack of statutory restriction on time to consider internal reviews and public interest are deficiencies in the Act. Some authorities have delayed responses for many months. It was not a surprise then that the Committee recommended the establishment of deadlines for these processes. So it is a considerable – and unwelcome – surprise to find that the Government has rejected these recommendations.

Similarly reasonably, the Committee had recommended extending the period within which individuals could be prosecuted for destroying or hiding information requested under FOI. The Government has agreed that change is needed but its proposal that the 6 month window for prosecution should remain but be triggered when the offence is discovered rather than when it occurs would be an improvement – but only a modest one.

The Government is planning extensive revisions to the Section 45 Code of Practice. It wants to provide new instruction there not only on how the provisions for vexatious requests should be used, but also on how section 8, which sets out the definition of a valid request under the Act, should be interpreted. It is hard to avoid the suspicion that any change there is likely to encourage a narrower approach than that currently favoured by the Information Commissioner.

One of our concerns with the Committee’s report was with its suggestion that the ministerial veto should be used in circumstances other than exceptional. The Ministry of Justice has accepted this recommendation with gusto, and indeed appears to be considering widening the scope of circumstances in which the veto might legitimately be used.

Sensible suggestions, such as the recommendation that public authorities should publish statistics on their compliance, have been rejected. In this case it is suggested that this would place additional burdens on authorities for no discernible benefit. How publishing statistics that are already held can be considered an unreasonable burden it is not clear, and the benefits are obvious. The Information Commissioner and others would have been able to see which authorities were struggling with FOI and appropriate action could be taken. At the moment, authorities in many parts of the public sector can very easily hide their poor performance, and the Government appears to be sanctioning this.

Where the Government has decided to take the Committee’s advice, it is not particularly clear why in some instances. Having explained that there are plenty of exemptions that could potentially be used to protect research data from premature disclosure, the Ministry of Justice indicates that it is minded to accept the recommendation to introduce a new exemption, purely because the lack of a specific exemption for research gives “the impression that FOIA does not provide adequate protection”. This seems a particularly odd reason to legislate when almost every other change requiring legislation has been rejected.

There are some positive signs. Whilst agreeing with the Committee that companies providing public services should not be made subject to FOI at present, the Government does reserve the right to do this in the future if there are signs that companies or public authorities are not interpreting FOI as positively as they should. And they are looking at making it easier to add authorities to the Act’s coverage.

But overall, it looks very much as though the Government will do what it wants to do to FOI, whatever the views of the Justice Select Committee. Comparing its response to the Committee to the memorandum that it issued a year ago, it is clear that the Ministry of Justice has not changed its views in respect of most of the matters the Committee was asked to consider. Which begs the question: why did it decide to ask for an inquiry in the first place?

And what is most alarming is the extent to which many changes are still under consideration. A year after this process started, the Ministry of Justice is still examining its options, and we have limited assurances as to the future of the Act in its present form. Rest assured, the Save FOI campaign will be watching the Government to see what happens next. We recommend that anyone with an interest in FOI does so too.

Not now, Brian, we’re busy

2012-12-02T19:44:52+00:00

If anyone else had held the country to ransom and prevented changes to a law that were entirely in the public interest, the press would be up in arms, pointing the finger with relish. If unions, lawyers, doctors or social workers – indeed, any regulated profession or group – expected crimes to have puny, worthless punishments just in case one of their own was imperilled, the Daily Mail would shout their condemnation from the highest rooftop.

And yet, we have to swallow special pleading from journalists in the name of press freedom, and live with a rampant black market in personal data as a consequence. The Information Commissioner is obviously desperate to tackle it, but the results in court are often ludicrous. The man who received stolen medical data from his girlfriend to use for personal injury claims was fined £1050. He memorably boasted after the verdict “We’re going to Bella Italia after this and I’m having a fillet steak”. A bank worker stole information from her employer about the victim of a sex attack committed by her husband. Her punishment was an £800 fine. Whatever you think about the publication of the BNP member address list, a fine of £200 for endangering life (and probably risking mass misidentification) is almost satire.

This is what any journalist who attacks the data theft prison sentence expects us all to tolerate for their safety. Gone is ‘publish and be damned’, to be replaced with ‘publish and be insulated from the consequences’. A number of Parliamentary committees have called for the sentence to be enabled, and the Information Commissioner himself is excoriating about a system where the punishments for data theft are so derisory. In the recent past, the constant refrain from Government has been wait for Leveson. We cannot pre-empt Leveson.

And now, Leveson has spoken, and regardless of what you think about the doomed suggestion of statutory underpinning and regulation, the data theft issue is very simple. Leveson argues for the prison sentence to be made live. When passed, the Data Protection Act contained a public interest defence for those accused of stealing data or procuring stolen data. When the last Labour Government recognised the failure of the current system and sought to introduce the prison sentence, they also amended the DPA further, making clear that all a journalist needs is a ‘reasonable belief’ that they are acting in the public interest to escape prosecution. Even though the prison sentence was not brought into force, this additional defence was.

At this point, before saying something contentious, the sensible writer includes a few sentences about how important they think press freedom and journalistic endeavour are. The secret hope of every blogger is probably that their sublime writing will catch the eye of a sympathetic editor and they will be catapulted from the amateur sphere and be given a weekly column, or at least a spot of freelance at the Guardian. Biting that hand that hasn’t even picked up the food is surely blogger suicide. But I can’t be arsed. I honestly don’t want to live in a country where journalists get locked up for doing good work, but I think I live in a country where newspapers can get mixed up in axe murders with impunity, so I doubt that Fleet Street will crumble if I fail to invoke the spirit of Voltaire before suggesting something that hacks might see as a check on their activities. They have David Cameron, Michael Gove and Boris Johnson and that’s all they need.

Besides, I come to exempt journalists, not to bury them. I think that the only solution to the data theft problem is to remove journalists from the equation. Lord Justice Leveson proposes significant amendments to the S32 exemption from DPA, which currently allows those processing personal data for journalistic, artistic and literary purposes to escape virtually all of the Data Protection principles as long as this is ‘necessary’. I think Sir Brian’s ideas don’t address the bigger picture, and should be binned. The press will never support any infringement of their liberties, whatever the justification, and some papers will monster anyone who supports such a plan. Meanwhile, the possibility of a prison sentence is likely to have a much better deterrent effect on office workers, nurses and cops tempted to steal or suborn others to steal personal data than a paltry fine and no record. If newspapers feel that they face this threat too, scaremongering about investigative journalists (rather than phone hackers and dumpster divers) ending up behind bars for speaking truth to power (rather than figuratively or actually smelling celebrity knickers) will continue its harmful knock-on effect.

S28 of the Data Protection Act gives those using personal data for the purposes of national security a total exemption from its requirements. Rather than continue to have the debate on data theft railroaded by a sideshow that is becoming increasingly sanctimonious, let’s extend that approach to journalists. Give them a ‘get out of jail free card’ and stop our personal data from being plundered everywhere else.

Filed under: Another bunch of people who will now hate my guts, Christopher Graham, Data Protection, David Cameron, ICO, Leveson, phone hacking Tagged: Data Protection, Leveson, Press Freedom

Media Update - 16th - 30th November 2012

2012-11-30T10:54:35+00:00

Attacks on Norfolk prison staff revealed - BBC - 30.11.12
A prison officer was scalded on the face when a kettle of boiling water was thrown at him by an inmate at a Norfolk jail. This was one of 21 staff injury assault reports at Norfolk prisions between January 2011 and October 2012, a Freedom of Information request found.

Redacted, the 425-page FOI response with every page blacked out - The Telegraph - 29.11.12
Council officials have apologised after staff produced a 425-page Freedom of Information response with every page blacked out. The document was put together by staff at Brentwood Council in Essex after they received questions about a multi-million pound deal to build a cinema.

Almost 100 children go missing from Crawley care homes in 24 months - This is Sussex - 29.11.12
Figures released under the Freedom of Information Act reveal 98 children disappeared while staying at care homes in Crawley between January 2010 and May 31 this year. Though all the children are believed to have been found safe, concerns have been raised at the potential risks to which they would have been exposed.

Nuclear lobbyists wined and dined senior civil servant, documents show - The Guardian - 28.11.12
Senior civil servants responsible for ensuring the building of the UK's new fleet of nuclear power stations received hospitality from industry representatives at some of London's most luxurious restaurants, hotels and private members' clubs.

Scottish ministers drop royal secrecy plan - BBC - 27.11.12
The Scottish government has dropped contentious plans to keep all communications between ministers and senior Royal Family members a secret. Ministers said the move would bring Scotland into line with the rest of the Uk, but changed their minds in light of concern over the proposals.

Patient killed in oxygen explosion as a second dies in broken lift: Damning dossier reveals NHS failings that caused death - Mail Online - 26.11.12
A shocking list of serious errors at NHS hospitals in Scotland has come to light, following a Freedom of Information request.

Domestic violence accounts for 10% of emergency calls, data shows - The Guardian - 24.11.12
One in 10 emergency calls to police are categorised as domestic violence related, rising in some areas to a fifth of all 999 alerts. The figures, obtained following a freedom of information requests, have prompted fresh demands for a long-term strategy to tackle Britain's "hidden crime."

Market Rasen's seriously ill suffer long waits for help from NHS - Market Rasen Mail - 24.11.12
A Freedom of Information request submitted to East Midlands Ambulance Service revealed 148 people within a 12 mile radius of Market Rasen have had to wait more than half an hour for an ambulance in the past two years - even though they had life threatening conditions.

West Midlands Police officer shot fellow cop in murder investigation - Birmingham Mail - 24.11.12
A member of the highly-trained West Midlands firearms unit accidentally wounded a colleague when his gun went off during a murder raid. The incident was one of four occasions when officers mistakenly fired their weapons in the last two years. The most shocking case - revealed by a Freedom of Information request - happened during a joint operation with Thames Valley Police, who were investigating a murder.

Crowdsourcing improvements to the Freedom of Information Act - The Guardian - 24.11.12
The government has launched an online consultation inviting feedback on the draft code of practice for authorities to follow on the enhanced the right to data under the Freedom of Information Act, which will be brought into force next year.

Three Rivers District Council pay £9m for botched William Penn Leisure Centre redevelopment - Watford Observer - 23.11.12
The bungled construction of a leisure centre has been laid bare in documents obtained under the Freedom of Information Act.

Campaigner: we could save lives with 20 mph limit - Suffolk Free Press - 23.11.12
A campaigner in Suffolk is urging council bosses to review its speed limits in towns and villages throughout the county, after a Freedom of Information request revealed that almost half of the 326 people killed or seriously injured on Suffolk's roads last year were in 30mph zones.

NHS cuts back - but not on £500,000 junkets bill - Express - 22.11.12
Health chiefs in Scotland have been criticised for spending more than £500,000 on foreign junkets, at time when savings need to be made. Employees enjoyed taxpayer-funded trips to Miami, Cape Town, Sydney and Kuala Lumpur for courses and conferences, according to details released under Freedom of Information laws.

UKBA alerted over suspected sham civil partnerships - BBC - 22.11.12
Since 2010 registrars have contacted immigration authorities on 49 occasions with suspicions relating to same-sex ceremonies involving foreign nationals, according to figures released following a Freedom of Information Act request.

New code of practice to minimise privacy risks in anonymised data - The Guardian - 21.11.12
The Information Commissioner's Office (ICO) has announced a new data protection code of practice, which advises on how to protect the privacy rights of individuals while dealing with large and complex databases. With the increased use of such databases, especially those containing data on members of the public, comes a heightened risk of breaching the individual's right to privacy, even when such data is anonymised.

The ICO's announcement sets out best practice in ensuring anonymised data lives up to its name, ensuring that attempts to identify an individual from a public data-set will prove fruitless.

The code focuses on ensuring that new forms and quantities of data are managed within the legal framework of the Data Protection Act (DPA). In addition to the initial anonymisation process, those holding such data must consider the likelihood of re-identification, the process by which someone in possession of one data-set could combine it with one or more other sources of data to establish an individual's identity. This is of particular concern for organisations dealing with Freedom of Information Act requests, since such an organisation must decide whether the release of its data would breach the DPA.

The full code is available for reading here

Five wind farm applications a day under the SNP - The Telegraph - 21.11.12
Figures obtained by the Scottish Conservatives under the Freedom of Information Act show 5,528 planning applications for wind turbines have been made since May 2007, an average of five per day since Alex Salmond came to power.

SNP criticised over freedom of information attack - BBC - 20.11.12
The SNP has attacked an unnamed individual who submitted a series of freedom of information requests. The party accused the person of wasting public money after making 85 freedom of information requests, at a cost of more than £23,000. In response opposition parties said ministers were in no position to criticise others after having spent £12,000 of taxpayers money in legal expenses to prevent having to reveal whether it had or had not commissioned advice on Scotland's future EU membership.

Hampshire Police spend £600k on empty Alpha Park office - BBC - 20.11.12
More than £600,000 has been spent by Hampshire Police on a building which has stood empty for four years, a Freedom of Information request by the BBC has revealed. The force bought Alpha Park for £9.2m in 2008 and have spent an extra £638,379 keeping the building running since then.

Lights switched off overnight on five miles of M54 - Shropshire Star - 20.11.12
Lights have been switched off or dimmed on more than 121 miles of motorway, including on a five mile stretch of the M54, according to a response to a Freedom of Information request by drivers' group the AA. The Highways Agency, which manages motorways, stressed that safety had not been compromised.

Hundreds of paedophiles reoffend while bing monitored - The Telegraph - 20.11.12
Among those convicted of sex crimes against children, 941 have reoffended since they were subject to registration requirements, according to figures obtained under freedom of information laws by NSPCC. Jon Brown, of the children's charity, said, "Reoffending rates for sex offenders have risen in recent years, but until now we did not know how many of these involved the sexual abuse of children. From now on, we want a separate tab kept on the number of child sex offenders in this country and how many go on to abuse again." He said better information about paedophiles and reoffending rates would help protect children from abuse.

Identities of MPs' landlords and agents disclosed despite security concerns - The Guardian - 19.11.12
Records containing the identities of many MPs' landlords have been published under the Freedom of Information Act, despite claims by some, including John Bercow, the Commons Speaker, that the move could jeopardise the security of those involved. The list of landlords and agents of 320 MPs who claimed rental expenses last month was released by the Independent Parliamentary Standards Authority, which said it had withheld some details where an MP or landlord had shown that the information could lead to their address being identified.

See also:

MPs were warned in advance of publication - The Times - 20.11.12
A group of 51 MPs succeeded in keeping their landlords' names secret after arguing that publication could pose a security risk. Among those who won the right for their landlord's name to be redacted were Nick Clegg, Deputy Prime Minister, John Denham, a former labour minister, and Nadine Dorries, the Tory MP currently appearing on a television reality show. It transpired that MPs were given several weeks notice that their landlords' details would be published, giving them time to terminate any embarrassing arrangements.

No arrests in 85% of South Yorskshire fuel thefts - BBC - 19.11.12
Figures show 85% of fuel thefts from petrol stations in South Yorshire remain unsolved. Action was taken against offenders in just 1,458 of 10,027 cases between 2007 and 2011. The figures were released by police after the BBC made a Freedom of Information request.

MP calles for tighter controls on Tasers - Cambridge News - 19.11.12
Cambridge MP Julian Huppert has called for stricter controls on Tasers after figures obtained under freedom of information request reveal Cambridgeshire police shot 34 suspects in the chest with the weapons.

SNP accused of cover-up over funding for Sick Kids hospital - Edinburgh Evening News - 19.11.12
Finance arrangements for Edinburgh's new Sick Kids hospital obscure the true cost to NHS, it has been claimed. Although the business case for the project has been published under Freedom of Information powers, all the key figures have been redacted, leading one MSP to claim the public were being kept in the dark on whether the SNP's chosen funding method, using private finance, was best value for money. Private finance initiative expert, Mark Hellowell, a lecturer at Edinburgh University, said ministers were refusing to release the business case to try to hide what he claimed was the failure to deliver cheaper schemes.

Rise in number of teachers off work with stress - The York Press - 19.11.12
The number of teachers off work with stress in York and North Yorkshire has risen sharply in the past five years, according to figures released by City of York Council under the Freedom of Information Act.

Metal theft rises on West Midlands motorways - BBC - 19.11.12
Nearly 150 metal theft incidents happened on West Midlands motorways in a year, the Highways Agency said. There were 149 incidents in the region in 2011-12, compared with seven in the previous year, a BBC Inside Out Freedom of Information request revealed.

Internet porn and the rape suspects aged TEN: new fear for young after 24 police forces arrest under-13's for sex crimes in a year - Mail Online - 18.11.12
Figures obtained by the Daily Mail under a freedom of information request reveal that 24 police forces arrested children as young as ten for suspected rape in the past year while seven detained at least one ten year old. The figures are said to highlight growing concern over the influence of internet pornography on impressionable young minds.

Spanish ships have entered Gibraltar waters 178 times in last year - The Telegraph - 18.11.12
Spanish state vessels illegally entered the disputed waters around Gibraltar 178 times in the last year. Of the 42 formal written complaints to the Spanish Ministry of Foreign Affairs since 2008, half were submitted in the last 12 months. Figures released following Freedom of Information requests by the Press Association show the number of unlawful incursions into British Gibraltar waters in the year to end of October 2012 was far higher than in previous years.

Children held in police cells under Mental Health Act - BBC - 18.11.12
Children as young as 11 were held in police cells in England and Wales in 2011 because police officers thought they were mentally ill. There were 347 such detentions, some for more than 24 hours. The Mental Health Act allows police to take anyone they suspect of being mentally ill in "need of care or control" to a safe place for assessment. Children detained by police had not necessarily committed any crimes. The Department for Health said it was developing better procedures to ensure young people get appropriate care. The Association of Chief Police Officers says, in some parts of the UK, cells are the only option.

Interviewed about this disclosure on The World This Weekend the health minister, Norman Lamb twice said he was grateful that this issue had been brought to his attention. Listen to the interview here (starts 16 mins in).

Creative Scotland comes clean of £300k funding for film flop - Herald Scotland - 18.11.12
National arts agency, Creative Scotland, has been forced to accept it made a mistake in funding the film Love Bite, which flopped at the box office. The agency had initially tried to blame its predecessor, Scottish Screen, by claiming that investment was committed prior to the establishment of Creative Scotland. However, a freedom of information request revealed this to be untrue.

Number of children missing in London up by a third - London Evening Standard - 16.11.12
The number of children going missing in London has shot up by more than one third in three years, according to statistics obtained under the Freedom of Information Act.

Revealed: How much you forked out for high-paid council chief's rail, taxi and hotel bills - Boston Standard - 16.11.12
The man hired as financial troubleshooter by Boston Borough Council claimed more than £16,000 in rail, taxi and hotel expenses in a year.

Footpaths are in danger due to cutbacks - Birmingham Post - 16.11.12
The Ramblers Association has launched a campaign after research based on freedom of information requests identified cuts to councils to rights-of-way departments. The Association fears that such departments may be seen as easy targets for cuts because the public may not notice funding has been withdrawn for some years.

FOI to remain 'requester-blind', charges for requests rejected

2012-11-28T19:41:29+00:00

The Local Government minister, Brandon Lewis, has confirmed that the Government has no plans to change the 'requester-blind' principle on which the Freedom of Information Act is based and has rejected calls for charges to be introduced for making requests.

Sir Bob Russell: To ask the Secretary of State for Communities and Local Government if he will make it his policy that local authorities should either refuse or levy a charge on applications under the Freedom of Information Act 2000 which seek to extract information on planning and other matters for commercial purposes; and if he will make a statement.

Brandon Lewis: Local authorities are public bodies in their own right under the Freedom of Information Act 2000, and the Department does not interfere with local authorities carrying out their obligations under this legislation. The legislation is 'requester-blind', and there are no plans to change this. It would therefore not be appropriate or practical to charge some requesters and not others.

The Freedom of Information Act already contains a suitable charging routine and local authorities must abide by this. The recent scrutiny of the Act by the Justice Select Committee considered the charging regime in some detail, and did not recommend any changes. In particular it recommended maintaining the principle of requester blindness and that public authorities should not be given the power to charge some requesters and not others.

Ministers have previously received representations from local authorities asking for powers to introduce new charges for freedom of information requests; we have rejected such an approach. If town halls want to reduce the amount they spend on responding to freedom of information requests, they should consider making the information freely available in the first place.

Indeed, this Government's Open Data agenda seeks to open up public sector information rather than restrict it. The local government transparency code issued by my Department calls for councils to publish a wide range of data in an open and standardised format, for re-use and re-publication by anyone: from individuals, to voluntary sector to commercial organisations. Open and standardised formats allow creative use of data. For example, OpenlyLocal is seeking to build an open national database of planning applications.

Scottish Government to remove absolute exemption for Royal communications from FOI Bill

2012-11-27T16:53:02+00:00

The Scottish Government has announced its intention to remove the absolute exemption for information relating to communications with the Queen, the Heir and the second in line to the throne from its Freedom of Information (Amendment) (Scotland) Bill. In its Stage 1 report on the Bill the Scottish Parliament's Finance Committee said it "remained unconvinced of the need" for the provision, having received "substantial evidence" from witnesses including the Scottish Information Commissioner and Campaign for Freedom of Information in Scotland (see earlier post).

The Government also outlined a further amendment which will place new obligations on Scottish Ministers to regularly review extending the scope of the legislation to cover additional bodies, and the range of organisations who are consulted when considering extensions through Section 5 of the Act will be widened.

Deputy First Minister, Nicola Sturgeon said:

We've carefully considered the views of the Finance Committee, the Scottish Information Commissioner and other stakeholders and we are lodging two key amendments today which will help to make our procedures here in Scotland even stronger.

Having carefully considered the report of the Finance Committee, we have concluded that the principle of public interest as regards Royal communications should be maintained. As a result, and subject to the views of the Parliament, we are now proposing that there should be no absolute exemption for information relating to communications with senior members of the Royal Family.

We remain firmly of the view that communications between Her Majesty and other members of the Royal Family with Scottish Ministers - and other public authorities - should be handled sensitively and confidentially, with strict and appropriate application of the exemptions contained within the current Freedom of Information Act.

I also believe that the scope of bodies covered by Freedom of Information must be kept under regular review to ensure that the regime remains robust and relevant. Our amendments aim to do just that.

The Bill will be considered by the Finance Committee at Stage 2 on 5 December.

[Trigger warning] Another badge of honour

2012-11-26T14:59:21+00:00

It was around 1am on Saturday and I was rather inebriated and amongst some of my best friends when the above comment on my post about consent and the Julian Assange case hit my inbox. That perhaps accounts for my complete and utter failure to be upset by it, or take it as anything other than another badge of honour, following in the footsteps of the "fat and ugly" and "fuck off back home" comments that I occasionally receive on this blog and other parts of the Internet. We even had a dramatic reading!

The tragic reality, however, is that this is not even par for the course for women online - it's remarkably mild and restrained compared to the kinds of things hurled at people like Anita Sarkeesian, Helen Lewis, or anyone who dares to play video games while female. Anonymous is not threatening to harm me directly, or even encouraging others to do so - merely speaking in hypotheticals, surmising that I may change my mind if I was subjected to what they regard as "proper" rape. Bless their little cotton socks, Anonymous cannot even imagine that I may already have experienced sexual assault and that my opinions may be coloured by that experience.

Statistically speaking, of course dear Anonymous, I am about as likely as not to have experienced a major incident of gender-based violence such as sexual assault (including, as you so eloquently put it, "penis in vagina rape"), domestic violence, or stalking. You on the other hand Anonymous, being almost certainly male, rather lack the frame of reference to even begin to imagine what it's like to live in a world where everyone thinks they're entitled to a piece of you. The fact that you feel entitled to make this kind of comment to me rather proves this point, but to be honest I don't actually expect you to understand that - or spot irony if it bit you in arse for that matter.

When I asked Twitter for ideas on what to do with my thinly-veiled rape threat, a number of people suggested I report it to the police and get it traced (it did come with an IP address and what looks remarkably like a real email address). I must admit this had not occurred to me - partly because the comment is, after all, comparatively mild and does not constitute a direct threat; and partly because the bit of me that's a digital rights activist really does not want to see restrictions on free speech and people arrested and jailed for mouthing off on the Internet. We have already had way too much of this kind of thing recently.

So I am putting it up here instead. I am doing this to raise awareness of the kind of harassment women experience online and the epidemic levels of gender-based violence in our society, but also as an intellectual exercise for digital rights folk. Or as @graphiclunarkid put it, "If you choose to publish a held-for-moderation threat against yourself are you guilty of s127 menacing, um, yourself?!"

Human Rights Committee concerned new National Crime Agency will be exempt from FOI

2012-11-26T12:12:20+00:00

The Joint Committee on Human Rights (JCHR) has published a Report on the Crime and Courts Bill which will be considered at Report stage in the House of Lords from Tuesday 27 November. In its Report the Committee expresses concern that the new National Crime Agency to be exempt from the Freedom of Information Act:

19. The Bill provides for the NCA to be exempt from freedom of information ("FOI") legislation. The NCA's predecessor, the Serious Organised Crime Agency ("SOCA") was similarly exempt from the FOI Act, but the functions which the NCA will take on from the UK Border Agency and the National Policing Improvement Agency were not previously exempt.

20. We asked the Government for its justification for excluding from the scope of the FOI legislation functions which were formerly within the scope of that legislation. The Government's response is that the functions transferring into the NCA which were formerly within the scope of FOI legislation are expected to make up only a small part of the Agency (about 8% of staff and 5% of budget), and it is not considered possible to ring-fence the functions of the precursor agencies for the purposes of the application of FOI legislation. This, the Government explains, is because the NCA is being designed as an integrated whole—to ensure a free flow of information between the central intelligence hub and all parts of the Agency, and it would defeat the purpose of such an approach if individual parts had to be cordoned off as subject to the FOI Act. Precursor units are also considered to be unlikely to be clearly identifiable as distinct entities within the new NCA.

21. The Government also states that it is committed to ensuring that the NCA will be transparent, notwithstanding that FOI legislation will not apply to it. The Director General will be under a statutory duty to make arrangements for publishing information about the exercise of NCA functions, and the sorts of information that will be published will be set out in the NCA's Framework Document, which will itself be published and laid before Parliament. The Government expects that as a result the NCA will in fact publish more information than its predecessors.

22. We are not convinced by the Government's justification for reducing the coverage of freedom of information legislation by including within the NCA exemption functions which were previously covered by that legislation. We are concerned that reducing the coverage of this legislation in this way could create a dangerous precedent. It is not uncommon for this legislation to apply to certain of an organisation's functions but not others, and we need a good deal more evidence from the Government to persuade us why the NCA should be any different.

During the Bill's Committee stage in the House of Lords, Baroness Hamwee moved an amendment to to make the NCA subject to the FOI Act. Following a reply from the Home Office minister, Lord Henley, the Baroness said "I am afraid that I remain unconvinced" that the NCA "should be exempt in its totality". She withdrew the amendment but said "this issue justifies further examination".

Consultation on the new draft code of practice on datasets

2012-11-22T12:42:23+00:00

The Cabinet Office is consulting on a new code of practice on the new provisions in the Freedom of Information Act inserted by the Protection of Freedoms Act that enhance the right to data. These new provisions on datasets will be commenced in April 2013. The Code of Practice (datasets) will sit alongside the existing Section 45 Code of Practice on the Freedom of Information Act.

The public have always been able to request datasets under the Freedom of Information Act however, provisions relating to their disclosure and re-use conditions have developed in a piecemeal way. The aim of the new provisions in the Act is to consolidate the complex landscape around the release of datasets for use and re-use and for this new code to make public authorities aware of their new responsibilities, to reduce potential confusion and bring clarity to what is expected of public authorities undertaking their new duties.

This new draft Code of Practice (datasets) aims to make it clear as to what is meant by the terms set out in the new provisions in the FOI Act. For example, what is meant by “an electronic form which is capable of re-use” or a “re-usable format” for the purposes of the Act. Over the last few months, the Cabinet Office has prepared this draft alongside the Ministry of Justice, the National Archives and the Information Commissioners Office. As committed to in the Open Data White Paper, we are now holding an online consultation to hear your views and comments on where the code can be improved or expanded upon so it provides the best guidance possible to public authorities who will in future rely on it as they carry out their new duties.

...

The new draft code also outlines the licensing framework in which public authorities must use when making their datasets available for re-use. Together with the Open Government Licence, which the draft code encourages public authorities to use, and the Non-Commercial Government Licence, a new licence has been drafted for potential use by public authorities that have reason to charge for the re-use of the dataset they hold or produce. This new licence, it’s working title the ‘Charged Licence’ will form a suite of ‘specified licences’ provided for in the new datasets provisions of the FOI Act. The National Archives today published the licence in beta form and alongside the consultation for the new Code of Practice (datasets) and they are interested in receiving comments on the licence as to whether the simplified terms and conditions adequately meet the requirements of licensors and re-users alike, as well as feedback on the working title of the new licence.

The consultation ends on 10th January 2013. Responses can be submitted online or sent to transparency.strategy@cabinet-office.gsi.gov.uk

Comments on the beta licence should be sent to the Information Policy Team at the National Archives at psi@nationalarchives.gsi.gov.uk by 10 January 2013.

New code of practice to minimise privacy risks in anonymised data

2012-11-21T12:14:34+00:00

The Information Commissioner has announced a code of practice setting out guidelines for protecting privacy rights while dealing with big data
• More from the Guardian on big data

The Information Commissioner's Office (ICO) has announced a new data protection code of practice, which advises on how to protect the privacy rights of individuals while dealing with large and rich databases.

The public sector is making increasing use of big data and earlier this month Margaret Hodge, chair of the Public Accounts Committee, spoke of the need for the government to improve its big data strategy in order to realise £33bn of potential savings.

With the increased use of large databases, especially those containing data on members of the public, comes a heightened risk of breaching the individual's right to privacy.

Even when such data is anonymised, some data-sets contain such rich information that it can be possible to identify an individual through the data alone unless proper precautions are taken.

The announcement sets out best practice in ensuring anonymised data lives up to its name, ensuring even the most determined of attempts to identify an individual from a public data-set will prove fruitless.

Speaking at the publication of the new code of practice Christopher Graham, UK Information Commissioner, said:

"We have published our code of practice on managing the data protection risks related to anonymisation to provide a framework for practitioners to use when considering whether to produce anonymised information. The code also aims to bring a greater consistency of approach and to show what we expect of organisations using this data.

"Failure to anonymise personal data correctly can result in enforcement action from the ICO. However we recognise that anonymised data can have important benefits, increasing the transparency of government and aiding the UK's widely regarded research community."

Big data is being used by governments throughout the world across areas including clamping down on tax evasion and improving healthcare provision.

The announcement should go some way towards allaying concerns that the increasing collection and manipulation of personal data would allow individuals to be identified.

Bridget Treacy, who leads the UK Privacy and Information Management practice at law firm Hunton & Williams, spoke of the how the code will help data-holders carry anonymise their data to the highest standards:

"Ensuring that data is properly anonymised, and not just "masked" can be very difficult to achieve in practice, particularly as technology is constantly evolving. Organisations often are uncertain about the legal basis for the anonymisation process itself, and whether anonymised data might constitute personal data. The code deals with both of these issues."

Treacy cautioned that the code "will not be legally binding", but added that it "may influence enforcement."

The code focuses on ensuring that new forms and quantities of data are managed within the legal framework of the Data Protection Act (DPA) 1998.

The European Data Protection Directive states that the principles of data protection do not apply to data anonymised in such a way that its subject is no longer identifiable, essentially placing the onus on ensuring that this guarantee of anonymity is met.

The key consideration here is not whether it is possible for an individual to be identified, but rather the likelihood of such identification taking place.

As such, the code sets out a framework for an organisation to follow when establishing this level of probability, and thus whether or not the DPA applies to the databases it is handling.

In addition to the initial anonymisation process, those holding such data must account for the likelihood of re-identification, the process by which someone in possession of one data-set could combine it with one or more additional databases to establish an individual's identity.

This is of particular concern when viewed in conjunction with the Freedom of Information (FOI) Act, since an organisation dealing with an FOI request must decide whether the release of its data would breach the DPA.

Until now, there was no written obligation for an FOI officer to consider the implications of a data release for use in re-identifiying individuals in other data-sets, but this will now have to be taken into account.

Another consideration for data-holders set out in the code is the question of whether or not their anonymised data could be combined, for the purpose of re-identification, with records available through social media or internet searches.

Geospatial data is also covered, with the code recommending broadening the temporal or spatial scale of data in order to decrease the possibility of using a specific location or event to identify an individual or incident.

As an example, the code recommends using heat-maps for crime mapping, minimising the risk that an individual address, individual or crime could be identified.

The ICO has also announced the creation of a new UK Anonymisation Network (UKAN) led by the University of Manchester, with the University of Southampton, Office for National Statistics and the government's new Open Data Institute (ODI).

The Network will receive £15,000 from the ICO over the next two years to enable good practice related to anonymisation to be shared across the public and private sector.

You can read the code in full here.

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Media Update 1st-15th November 2012

2012-11-20T13:05:41+00:00

Maritime agency's Monaco trip funded by taxpayer - BBC - 15.11.12
Officials of the Maritime and Coastguard Agency have been criticised for spending almost £20,000 sending four people to an annual boat show in Monaco during a period of cuts.

London councils spend £23 million telling us about them - London Evening Standard - 14.11.12
London councils spent more than £23 million on publicity last year. The bill is down more than 50 per cent from 2009/10, when it hit £56.5 million. In 2008/09, more than £60 million was spent, suggesting that boroughs are tightening their belts.

South Yorkshire Police staff morale low, survey finds - BBC - 14.11.12
An internal staff survey, conducted in March by South Yorkshire Police, found that morale within the force had fallen. In figures disclosed under a Freedom of Information request by the BBC more than 1,200 staff said morale at work was "low" or "very low".

NHS staff discuss rejecting FOI request in leaked email - The Telegraph - 13.11.12
According to a leaked email NHS staff discussed how they could prevent publication of financial documents subject to a Freedom of Information Act request.

Under-fire academy paid nearly £80,000 to law firm - Yorshire Post - 13.11.12
Outwood Grange Academy paid an international corporate law firm almost £80,000 to handle its press and freedom of information requests. The spending began in January 2011 when academies became subject to the Freedom of Information Act, and despite the academy already employing a solicitor as its legal officer. After initially providing a total for spending with the law firm up to April last year, Outwood then refused to provide updated figures after further FOI requests. In June this year the Information Commissioner ruled the academy should provide the figures but Outwood appealed the decision. The legal action was eventually withdrawn when a judge told the academy its case had no chance of succeeding.

Secret 28 'scientific experts' who greened the BBC - revealed! - The Register - 13.11.12
A list of attendees at a climate-change seminar the BBC has spent tens of thousands of pounds trying to keep secret has been unearthed on an internet archive. The listed names emerged after the publicly-funded broadcaster won a legal battle to keep the list secret under freedom of information (FOI) laws. The seminar was cited by the BBC Trust as the basis for the broadcaster's abandonment of impartiality when reporting on climate change.The BBC argued that it was able to derogate from the Freedom of Information Act because the seminar was held "for the purposes of journalism" and its attendance list is therefore protected by the law. On Friday the tribunal ruled decisively in favour of the BBC.

Councils slash spending on new library books - Northern Echo - 12.11.12
Research using freedom of information powers reveals local authorities in the North East and North Yorkshire have cut spending on library books by 34 per cent in five years.

A compelling case for transparency on radiation - Scottish Herald - 11.11.12
Revelations that Government scientists have discovered a near-doubling in the incidence of cancers among people living near the radioactively contaminated area at Dalgety Bay will add to concerns of local residents.

Streets where no pupils pass GCSEs - Express - 11.11.12
Britain's education system has left entire neighbourhoods with teenagers who have no GCSEs. Data revealed by freedom of information requests provides details down to the exact streets that are home to these children. Thirty neighbourhoods are identified where no children passed five GCSEs, including English and Maths.

Misery of Brighton and Hove's bullied kids - The Argus - 09.11.12
More than 130 secondary school pupils cited bullying as the reason they wanted to move to a new school in Brighton and Hove in the last two academic years. Figures obtained under Freedom of Information rules also show that the number of bullied children looking to change schools in the city has increased by 20% in 2011/12 from the previous year.

Herefordshire parish council facing High Court over freedom of information concern - Hereford Times - 09.11.12
The Information Commissioner's Office has ordered Border Group Parish Council to respond to a freedom of information (FoI) request by the end of the year or face the Hight Court. The Herefordshire man has been waiting 18 months for his parish council to show him their FoI publication scheme.

Decc 'spends £1.5m on flights' - The York Press - 09.11.12
The Department of Energy and Climate Change spent £1.5 million on flights in two years, with £250,000 of this expended on domestic journeys.

Ash dieback: government claimed its 'hands were tied' on import ban - The Guardian - 08.11.12
Letters from 2009, obtained by Friends of the Earth via a Freedom of Information request, show government said it could not act on tree disease due to European and world trade rules after it was warned that ash dieback disease could have a huge impact on the British countryside.

Stormont department took 320 days to answer FoI request - BBC - 08.11.12
A retired civil servant, Mr Jeffrey Dudgeon, has complained at the time taken by a Stormont department to answer a Freedom of Information request. Outstanding material was eventually provided the day before a scheduled judicial review of the matter.

Society steps in over Hamza legal aid row - The Law Society Gazette - 08.11.12
The Law Society has offered to work with the government to increase public understanding and confidence in legal aid after the justice minister, Chris Grayling, announced an 'immediate examination' of the system following the Abu Hamza extradition case. The minister ordered the review after a freedom of information request by the Daily Mail revealed that £680,000 was spent in legal aid on the Hamza case.

1,500 children have DNA taken by North Yorkshire Police - The Yorkshire Post - 08.11.12
More than 1,500 children have had their DNA swabbed by North Yorkshire Police in the past two years. Some of these were as young as ten years old. Swabs have been taken even when such children have not been charged with any offence. The figures were revealed under the Freedom of Information Act. A spokesman for North Yorkshire Police said, "DNA is a very important and successful tool used in the detection of crimes, some of which have been solved years after they were committed.

SNP pressures councils to allow more wind farms - The Telegraph - 08.11.12
Scottish Borders Council is being asked to change a new blueprint for the area's future development after government officials complained of "negative language" about wind farms. Correspondence released under the Freedom of Information Act show that a senior Scottish Government planner rebuked the local authority for suggesting "the Borders Council is at saturation point for wind farms."

Foreign drivers flock to switch licences - Auto Express - 07.11.12
More than one million motorists have converted foreign driving permits to a British licence over the past 15 years, without needing any training on British roads. This figure was obtained by insurer Swiftcover.com by a Freedom of Information request and has prompted the insurance company to call for mandatory formal training for such motorists, who could have learned to drive in countries with very different driving conditions.

'Only five families claiming £100,000 in housing benefit' - Dash.com - 06.11.12
An analysis of the Government's much publicised claim that some families are receiving over £100,000 a year in housing costs has revealed that there are perhaps only five in the country doing so. Full Fact, an independent data-checking organisation, made a Freedom of Information request to the Department or Work and Pensions and has concluded that "it is clear from what we've unearthed that the extremely large claims highlighted in the media are also extremely rare".

Olympic Torch relay cost North Wales Police £31,000 - The Daily Post - 06.11.12
A freedom of information request has revealed that £22,618 was spent on additional pay for North Wales Police officers and staff, including overtime, overnight allowance, unsocial hours and national insurance payments. A total of £5,115 was spent on "other costs" such as repairs and maintenance and recovery of vehicles and equipment, with a further £3,640 being spent on subsistence. North Wales Police say they received no funding from the Olympic safety and security budget for the role they played in the torch relay.

Millions 'wasted' on consultation into hospital closures - Harrow Observer - 05.11.12
NHS North West London released the cost of the Shaping a Healthier Future consultation, which has been called a 'complete waste' by campaigners, following a request under the Freedom of Information Act. The bill is said to be £7 million, which included nearly £4 million in fees to consultancy firm McKinsey. There has been opposition to proposals to merge some hospital services and close the A&E department at Central Middlesex Hospital.

Councils spending hundreds of thousands of pounds on smartphones and other gadgets for employees - The Northern Echo - 05.11.12
Data released under FoI shows local authorities in the North-East and North Yorkshire have invested more than £600,000 on smartphones and tablet computers for staff and politicians. While this spending is only a fraction of councils' budgets it comes amid fears a fresh wave of austerity cutbacks is about to see millions of pounds wiped from key services such as elderly care.

Hertfordshire County Council's £7m travel expenses in two years, and just £19k on public transport - Welwyn Hatfield Times - 05.11.12
Figures obtained under FoI show that between September 2010 and September 2012 Hertfordshire County Council spent almost £7 million on transport for staff and politicians. Of that total, just £19,082 was spent of public transport, drawing criticism from opposition members.

Anger as crimes are left unsolved by Wiltshire Police - Swindon Advertiser - 04.11.12
Information obtained under the Freedom of Information Act revealed that nearly a quarter of all crime reported to Wiltshire Police is not investigated beyond a desktop study or a phone call.

Domestic Violence: Women's services face 'disastrous' cuts as councils slash Budgets, FOI reveals - Huffington Post - 04.11.12
Services aimed at helping vulnerable women, including refuges and rape crisis centres, are being reduced as local authorities cut budgets. Karen Ingala Smith, the chief executive of domestic violence charity Nia, told the Huffington Post UK vulnerable women could be left "with nowhere to go" after cuts.

How ministers rewrote the rules 'to hide lack of EU legal advice' - Herald Scotland - 04.11.12
Alex Salmond's Government has been accused of manipulating the Ministerial Code to avoid questions over an independent Scotland's place in the European Union. The First Minister claimed that he was unable to say whether he had received legal advice on Scotland's EU membership due to a gagging clause in the code. The receipt of legal advice is significant because although the SNP insists that upon Scottish independence Scotland would automatically be an EU member and avoid the euro others claim Scotland may have to apply for membership and adopt the euro.

In May last year, a labour MEP used FoI to ask the SNP Government if it had been given specific legal advice on the subject. Ministers refused to answer and that refusal was appealed to the Scottish Information Commissioner, who ordered to Government to confirm if it had received any advice. The SIC said there was a "strong public interest" in establishing whether or not advice existed on such an important subject.

The Scottish Government then appealed to the Court of Session to keep the matter secret, arguing that the Ministerial Code made it impossible to confirm or deny the existence of legal advice. The particular section of the Code cited by the Government was, however, rewritten while the SIC was considering the appeal, leading to the accusations of manipulation by the Government.

Two weeks ago, after years of asserting that Scotland would automatically be in the EU, ministers finally admitted they had never had any specific advice from their own law officers in support of the claims.

Concerns over neurology care - The York Press - 03.11.12
There are serious flaws in the way more than one million people disabled by neurological conditions are identified, according to a report by the charity Sue Ryder, based on Freedom of Information data.

Thousands of hospital appointments missed at Stoke Mandeville - Thame Gazette - 03.11.12
A Freedom of Information request to Bucks Healthcare NHS Trust, which runs Stoke Mandeville Hospital, showed that of 263,704 hospital appointments made during 2011/12 more than 16,000 were missed. The Trust is currently piloting a text alert service to remind people about their appointments.

101 calles go unanswered - Northampton Herald & Post - 02.11.12
Statistics revealed through a Freedom of Information enquiry by the Conservative candidate to become Northamptonshire's police and crime commissioner indicate one in five calls to Northamptonshire Police's 101 non-emergency number have been going unanswered. Deirdre Newham, Chair of the Police Authority said new systems have been put in place into the Force Control Room that have resulted in significant improvements in performance.

Charity wants urgent action against abuse - Dorset Echo - 02.11.12
NSPCC is calling for urgent action after a freedom of information request revealed that Dorset Police made 49 arrests for child abuse pictures in one year.

Call to disclose Sizewell N-plant data - Eastern Daily Press - 02.11.12
Opponents of Sizewell C claim that vital technical information on the proposed nuclear reactors is being withheld by the Office for Nuclear Regulation, ostensibly on grounds of commercial confidentiality.

Concern at backlog in records of gun owners - Plymouth Herald - 02.11.12
Following a Freedom of Information request by The Herald, Devon and Cornwall Police admitted that as of September 17 it had around 6,250 gun transfer amendments which had yet to be added to its electronic records.

Northampton missing millions in unpaid council tax - Northampton Chronicle - 02.11.12
Statistics obtained under the Freedom of Information Act show the amount of unpaid council tax in the town since 2005 stands at £6.7 million

Sherwood Forest NHS Trust reveals £1bn PFI overspend - BBC - 02.11.12
The costs of redeveloping a hospital in Nottinghamshire under a PFI deal have more than doubled to over £2bn, according to figures obtained by BBC under a Freedom of Information request.

Royal Family can't ignore public's right to know, insist MSPs - Scotsman - 02.11.12
Plans to let the Royal family escape the glare of Freedom of Information laws in Scotland have been rejected by MSPs who say they should face the same scrutiny as other public bodies.

William Hague spent £10,000 stuffing Albert the snake - Huffington Post - 01.11.12
Foreign Secretary William Hague has spent £10,000 re-stuffing the Foreign Office Snake. The price tag was revealed following an FOI request to the Foreign Office.

Most government departments won't publish data on sector funding - Civil Society - 01.11.12
Most central government departments will not publish full information about levels of funding to the voluntary sector so it is impossible to track whether they are making disproportionate cuts or adhering to Compact principles, Compact Voice has discovered by making Freedom of Information Act requests.

85% of hospital trusts adopt controversial end-of-life care regime - The Independent - 01.11.12
Data obtained using the Freedom of Information Act suggest that 85% of hospitals trusts use a controversial care regime, known as the Liverpool Care Pathway (LCP), which can involve withholding food and drink from terminally-ill patients. Furthermore, figures suggest that almost two-thirds of trusts that have used the LCP have received financial incentives for the implementation of the method.

Bath's Royal United 'took £1.3m in parking charges' - Western Daily Press - 01.11.12
The Western Daily Press reported how NHS trusts in the Bristol area collected more than £2.3 million last year, from patients, visitors and staff. The information was obtained by Gloucestershire MP, Chris Skidmore, under the Freedom of Information Act. He discovered that Bath's Royal United Hospital took £1.3 million, and both Great Western Hospitals and Salisbury NHS Trusts received over £1 million.

Met Police got £22.7m from sponsors, FOI request finds - BBC - 01.11.12
The Metropolitan Police has received donations and sponsorship worth £22.7 m from dozens of organisations over the past five years, the BBC has learned from figures disclosed following a Freedom of Information Act request. Although Scotland Yard said it had a "long history" of working with different partners to tackle crime, London Assembly Green member Jenny Jones questioned whether it was right for police to accept such donations and called for the Met to "rethink" the policy. She said, "Some of this looks like rent-a-cop policing, which I think the majority of the public would not find acceptable."

Coverage of this story also appeared here - The Guardian - 01.11.12 - and here - The Independent - 01.11.12

Solent NHS Trust patient data left at market stall - BBC - 01.11.12
Patients' confidential information has been left at a market stall and on top of a parking meter in a series of data breaches by Solent NHS Trust. A Freedom of Information request by the BBC revealed the trust had breached data protection 93 times in the past two years.

Changing notions of privacy - call for papers

2012-11-16T15:07:18+00:00

I have been asked to post the following call for papers for the Fifth Northumbria Information Rights Conference which will take place on Wednesday 1 May 2013 at the Centre for Life, Newcastle Upon Tyne, UK.

The theme of the conference will be “Changing notions of privacy”. Our aim is both to explore developing understandings of privacy, and the tensions that exist between privacy, openness and freedom of expression.

The following topics will be explored within the overall theme, and papers will be grouped for presentation accordingly:
What is privacy?
Privacy v freedom of expression
Technology and the challenges of protecting privacy
Privacy in a commercial context
Privacy and the Freedom of Information Act 2000
Privacy or openness
Privacy and the Data Protection Act 1998
This call is open to academics, postgraduate students and practitioners from all disciplines, but particularly law, politics, information science and records management. Those interested in presenting a paper are invited to submit abstracts to the conference administrator Maureen Cooke. We particularly welcome abstracts which fall within the above themes, however, we will also consider abstracts which do not fall within these themes but which are nonetheless relevant to the overall theme.

Abstracts should be submitted by 7th December 2012. They should not exceed 300 words. Submission must be by Word document e-mail attachment to Maureen Cooke at the email address shown above and should include, in addition to the abstract, your title, name and organisation/institutional affiliation and your email address for correspondence.

All proposals will be reviewed, and successful applicants will be notified at the latest by 21st December 2012. Each speaker whose abstract is accepted will be allotted 20 minutes for presentation of their paper plus time for round-table discussion.

Please note that speakers will not be exempt from the registration fee for the conference but will be entitled to the early registration discount. A booking form with full registration fees will be available early in 2012. Please contact Maureen Cooke for any general enquiries about the conference or telephone 0191 243 7597

Government appealing ruling on disclosure of 20+ year old Rowntree takeover papers

2012-11-15T16:46:31+00:00

The Government are reported to be seeking to appeal against the recent decision by the Information Rights Tribunal (Cabinet Office v IC, EA/2011/0263) ordering the disclosure of information relating to the controversial takeover of Rowntree Mackintosh by Nestle in 1988. At the time of the request the disputed information was at least 22 years old.

The decision to appeal is illogical given the Government's decision to proceed with reducing the "30 year rule" to 20 years. The decision to move to a 20 year rule was taken by the previous Labour Government, following a review by Paul Dacre. The Coalition Government confirmed it would go ahead with the policy on 7 January 2011.

Lord McNally recently announced that the Government intended to start implementing the change in 2013, with two years' worth of records being transferred to the National Archives every year until the transition is complete in 2023. He also confirmed there would be a corresponding reduction in the maximum lifespan of a number of FOI exemptions including section 35. He said:

The change to a "20-year rule" is a key part of our Transparency Agenda and will see a wealth of historical material opened to the public much earlier than under current arrangements. The aim is to provide greater openness and accountability, strengthening democracy through more timely public scrutiny of government policy and decision-making.

Yet the Cabinet Office is now seeking to appeal a decision ordering the disclosure of information from 1988, even though the Government has accepted that 20 year old policy discussions should not be exempt.

The Cabinet Office refused to disclose five documents about the takeover under sections 35(1)(a) and (b) citing the need to protect collective responsibility. It also refused to even confirm or deny whether the takeover had been discussed by the cabinet. However, the Tribunal concluded the public interest favoured disclosure of the information:

71. We accept that government must be given a protected safe space for policy formulation and development. However in the circumstances of this case we find that there is very little evidence that merger policy or the Ministerial Code were under active policy review during the time period. In any case merger policy is very different today to that in 1988. Therefore we find the need for a safe space was diminished and accordingly the weight we should attribute to this public interest factor.

73. In contrast the public interest in transparency and openness in this case seems to us to be very weighty indeed. This is not only for the reasons given by the Commissioner and Mr Aitchison [the requester], and the likely continuing consequences for employment in the confectionary industry in York. There is also a weighty public interest in knowing that when a Minister of the Crown is charged with exercising a quasi-judicial function (as was the case with the decision which fell to Lord Young to take about the takeover of Rowntree), the quasi-judicial role of the decision maker was not compromised by improper political or other pressures.

Draw your own conclusions!

Scottish Parliament to debate Freedom of Information (Amendment) (Scotland) Bill

2012-11-15T12:42:06+00:00

The Stage 1 debate on the Freedom of Information (Amendment) (Scotland) Bill will take place this afternoon in the Scottish Parliament, shortly after 2.30 pm. You can watch the debate live at http://www.scottish.parliament.uk/newsandmediacentre/30912.aspx.

The Campaign for Freedom of Information in Scotland and UNISON Scotland are urging the Scottish Parliament to endorse the report of the Finance Committee which scrutinised the principles of the Bill. The Committee called for the Scottish Government to drop the proposed new absolute exemption for information relating to communications with Her Majesty, the Heir, and second in line to the Throne. It also expressed concern around the lack of extension of FoI coverage and asked the Scottish Government to consider amendments to address this at the Bill’s Stage 2 (see earlier post).

The Campaign for Freedom of Information in Scotland has produced a briefing for the debate available at http://www.cfoi.org.uk/pdf/foisa(amendment)billstage1brief.pdf

Let's go spoil some ballots!

2012-11-15T08:56:23+00:00

Tomorrow (today, depending on exactly when you're reading this), I want you to go out, find your local polling station for the Police and Crime Commissioner elections and spoil your ballot.

Police and crime WHAT?

Quite. Apparently only just under two thirds of us are even aware these elections are happening. The vast majority of us have not heard a single squeak from the so-called candidates.

To recap for the remaining one third, 41 elected "Police and Crime Commissioners" will replace the existing Police Authorities in England (except for London where you have the fortune of already having Boris as your de facto PCC) and Wales, all in the name of making the police more accountable. The new PCCs will be paid between £65,000 and £100,000 annually to produce a "Police and Crime Plan" for their policing area, set priorities on how police funding is spent, produce an annual report, and have the power to appoint, suspend and dismiss Chief Constables. As job descriptions go, my interns have more demanding ones for considerably less money.

Okay, but WHY?

Good question. Something to do with "accountability". And probably "bobbies on the beat". Everyone likes bobbies on the beat, right? Quite possibly also to facilitate the privatisation of large chunks of the police to companies like G4S; or to party-politicise the police - because that works so well!

Now, don't get me wrong. Policing in this country needs urgent and extensive reform. Ask the families of the Hillsborough victims. Ask the families of Ian Tomlinson and Jean Charles de Menezes and the 1431 other people who have died in police custody or after contact with the police since 1990. Ask anyone who's been charged at by the Met's finest on horseback. Ask the rape victims whose investigations were botched and deliberately obstructed by the police. And ask Steve Messham.

But let's be clear: Electing John Prescott and the like to produce some glorified pieces of toilet paper is not going to achieve the kind of reform we so badly need. And let's be clear on something else too: Theresa May does not want you to vote in these elections.

Theresa May doesn't want me to vote?

The Electoral Reform Society estimates that due to a number of factors - all within Mrs May's control - turnout at these elections is likely to be a record low, somewhere around the 20% mark. Theresa May continues to cheerfully insist that that doesn't matter and whoever is elected will have a democratic mandate.

If Theresa May wanted to you vote, here are a few things she could have done:

Scheduled the elections to coincide with other, more established elections, e.g. local ones, and not in winter.

Had information about the elections and the candidates mailed out to you.

Provided information not just online (excluding 7 million registered voters who do not regularly access the internet), and provided information in accessible formats for the disabled.

Encouraged independent candidates, rather than shafting them by excluding anyone with any kind of previous conviction, demanding a £5,000 deposit and denying them a free mailshot to voters.

She has done none of these things. Theresa May definitely does not want you to vote.

I don't want to do what Theresa May wants me to, but these elections are pointless and counterproductive. What do I do?

Whatever you do, don't do nothing! It plays into the hands of the government. It plays into the hands of extremists candidates. It encourages politicians to keep disregarding you.

You can, if you want to, vote. If you live in a policing area where there are extremist candidates and you feel they are likely to win, then by all means do vote for the lesser evil.

If you want to be annoying and obstructive (and I don't blame you if you do), you can pocket the ballot paper. It causes all sorts of havoc if a ballot paper has been issued but doesn't end up in the ballot box. This does carry some risk and I'm told you may get chased down the street by the returning officer. For a slightly safer though lesser level of havoc, you can write "CANCELLED" on your ballot paper and put it in the ballot box.

My preferred option is spoiling your ballot. This makes it clear that you care, and you have bothered to turn up, but also that you do not feel that these elections are legitimate or that any of the candidates deserve your support. Imagine the signal we would send if the election was "won" by spoilt ballots. The other good reason to do this has to do with the candidates' deposits. As I mentioned above, the deposit is £5,000, and candidates only get it back if they receive at least 5% of the votes cast. Again, imagine the message we would send if even the successful candidate lost their deposit because they were elected on less than 5% of the votes cast, at a turnout of 20%!

How to spoil a ballot

A final thought on the finer points of spoiling your ballot. From my experience as a counting agent at the AV referendum, the Electoral Commission produces guidelines to ensure that as many ballots are counted as valid whilst being interpreted correctly as humanly possible. (Note: Returning officers do not always read these guidelines. Counting agents generally will, and will fight for every ballot they can possibly imagine going their way.) Combine this with this being the first use of the supplementary vote system outside of London Mayoral elections, and I think you really can't afford to be subtle about spoiling your ballot. Don't play around with writing numbers in the boxes, ranking your candidates, putting in ticks instead of crosses, etc. Write something on your ballot that makes it very clear that your intention is to spoil it. One suggestion is "No to police commissioners, yes to democracy". "This is a spoilt ballot" will do just as well. Just don't give people any chance of counting your ballot as valid unless you want them to.

Happy ballot-spoiling!

KLF Revisited*

2012-11-11T10:17:46+00:00

On June 1st 2012, the Chief Executive of Brighton and Sussex University Hospital Trust, Duncan Selbie, gave a statement about the threatened ICO Civil Monetary Penalty of £325,000 for a Data Protection breach involving the insecure disposal of hard drives by a subcontractor. In the statement, Mr Selbie said the following:

“In a time of austerity, we have to ensure more than ever that we deliver the best and safest care to our patients with the money that we have available. We simply cannot afford to pay a £325,000 fine and are therefore appealing to the Information Tribunal.”

Despite these stirring words, the Trust paid up shortly afterwards. Unaware of another FOI request on WhatDoTheyKnow that had already revealed the crucial information, I made my own request to the Trust a few weeks ago about various aspects of the case, including whether they had paid for external advice. Several public bodies have told me that they were tempted to challenge their CMP, but the cost put them off. Given Brighton’s later statement that they were “not prepared to incur further costs“, I guessed that they must have been paying someone, and wondered how much they had paid out. Much of my request was refused, but one answer they did give me was that particular fact.

Brighton paid £168,259.59 in legal fees to Field Fisher Waterhouse up until the point that they paid the penalty, and £10,000 to a barrister. As well as the CMP itself, Brighton paid out an extra £180,000, with nothing to show for it. When the story was originally leaked to the local press in January, the CMP was supposedly £375,000, so the best that can be said is that they shaved off £40,000 (£50,000 minus the 20% discount they got from paying on time). The Interim Chief (who replaced Selbie) stated when the penalty was paid that “We have made repeated attempts over the past six months, most recently last week, to reach a settlement that recognised that errors were made but no harm arose, all of which have been rejected by the Information Commissioner’s Office”. If this was what FFW were being paid to handle, is it possible that £180,000 of public money was spent trying to spare the Trust’s blushes?

You will think me self-serving for saying so, but I think that any organisation that finds itself in this pickle could find better things to spend public money on. For starters, they would have saved a fortune by paying up and doing nothing else. However, I think I speak on behalf of all of my competitors when I say that if you want to spend money in response to a Data Protection incident, the only way training and consultancy will cost you £180,000 is if the training sessions are accompanied by the London Symphony Orchestra, the sandwiches are provided by Ferran Adria and the training rooms are decorated by Elton John’s florist.

Stewart Room is possibly the most high profile of FFW’s lawyers and in a recent blog on CMPs he claimed that they are “stupid” and an “inefficient waste of time and money“. I believe that Room’s take on CMPs is wrong, but in any case, it’s difficult to accept lectures about where public money ends up in a CMP case from someone whose firm trousered the thick end of two hundred grand of it. Given his concern about keeping public money ”in the public body“, one can only assume Room refused to have anything to do with the Brighton case. Just to recap the details, Brighton had an out-of-date service level agreement with their contractor (para. 4 of the CMP notice). They let a man into a secure area of their building without – it appears – knowing he was an unpaid subcontractor (para. 5). From the notice, it’s not clear who they thought he was when they let him in, and they did not obtain proper evidence of destruction of the hard drives from him (para. 6). The individual managed to remove 200 hard drives containing information about people’s sexual health without Brighton knowing (para. 11). And of course, all of this mess happened because Brighton were operating a system where sensitive personal data of the most confidential kind was being stored on 1000s of hard drives, which may be a bigger breach than the one that alerted the Commissioner. If these are ‘appropriate technical and organisational measures’, I am a banana. Unlike so many CMPs, this was not human error underpinned by the absence of some policy or training; this looks like a complete system failure, for which the senior corporate level are responsible. A challenge to this CMP was unwinnable and should have been unthinkable.

But even if Brighton’s case had not been open and shut, the apparent cost of challenging a decision has to become a matter of public concern. Central London Community Healthcare NHS Trust is appealing their CMP at the Information Tribunal in December. Their case appears to have some merit and it’s very different to Brighton’s. But their penalty was £90,000, and within the 35-day deadline, they would have paid the discounted rate of £72,000. This is now lost. If they are using a legal firm of similar stature and hourly rate to FFW, that £72,000 may have already been swallowed, and they have set themselves a high bar to clear. They have to win, get the penalty overturned, and get their costs awarded against the ICO. Anything less than that is indefensible, even if they’re right. Needless to say, the same chap who asked Brighton about their costs has now asked CLCH the same question.

To win at the Tribunal on a security case, there are only two options. The breach is not the incident, so the organisation needs to show it has put all the necessary technical and organisational measures in place, and checked that they are being followed. Relatively few organisations can achieve this; they escape CMPs only because they don’t have incidents or they don’t tell the ICO about them. The only alternative to appropriate compliance would be to find some procedural loophole or flaw in the ICO’s process – paragraph 3.1.3. of the minutes of the ICO’s July Information Rights Committee suggest this might be a possibility. FFW employ the former ICO Head of Enforcement as a consultant, but even if he has some cracking inside information about the ICO process, was it really worth £170,000 to find out what it is? Beating a CMP on a technicality will not change the fact that an organisation has breached the DPA, and the combined expertise of all those involved at FFW didn’t seem to help Brighton do anything but back down.

Organisations should be able to challenge the ICO. FOI has proved time and again that the ICO is not infallible and Tribunal intervention is sometimes necessary to protect the public interest in non-disclosure as well as disclosure. Friends tell me that the cost of an FOI challenge is relatively low, especially on a paper hearing, and can often be justified. Challenging a vexatious request can even save money in the long run, given the amount of staff time that can be squandered on a run of requests that a Tribunal success can put a stop to (fingers crossed, Devon). Even Michael Gove’s misbegotten run at the Tribunal over private emails only cost £13,000 - a waste of money, but a snip compared to £180,000. If a CMP recipient with a decent case can challenge the ICO without huge cost, I’ll root for them all the way. It would be good to see the ICO’s CMP approach tested and a bit of embarrassment for Wilmslow is rarely a bad thing. But no matter how aggrieved the organisation may feel, good governance must put a low ceiling on legal costs. The subtle subliminal message of this blog may be BUY TRAINING NOT LAWYERS, BUY TRAINING NOT LAWYERS, but it could equally be a case for more IT security staff or DP staff, better IT systems, or more curious auditors. Had Brighton paid some contract lawyers earlier on, I would not be writing this, and I doubt the bill would be anything like the current figure.

Mr Selbie is now Chief Executive of Public Health England, but he still needs to explain why his public statement about public money is so at odds with the internal decisions made on his watch. Brighton has a management board, auditors, and regulators, all of whom have questions to answer about this mess. I spend much of my time on this blog excoriating the ICO and I also complain about the raw deal that local public authorities get at their hands, especially under DP enforcement. But this one is different – the ICO got it right, and the shocking thing about Brighton’s handling of the case is that in receipt of the biggest penalty in DP history, they contrived to increase it by more than 50%. In a time of austerity, that’s a heavy price to pay.

* http://www.youtube.com/watch?v=i6q4n5TQnpA

Filed under: Data Protection, Data Security, ICO, Uncategorized Tagged: CMP, DP

Do officials obstruct ministers?

2012-11-07T08:21:52+00:00

Some top civil servants have deliberately obstructed plans that ministers want implemented.

That's the view of the Cabinet Office minister Francis Maude, who in a speech to the Institute for Government last month complained that "there are cases where permanent secretaries have blocked agreed government policy from going ahead or advised other officials not to implement ministerial decisions".

It's not happening all the time, he says, but there are too many occasions on which this "utterly unacceptable" behaviour has occurred. He's keen to stress that Labour ministers in the previous government also protested about the same difficulty.

In an interview in August Maude outlined one example where he said a permanent secretary's behaviour was "designed to give a signal to all the officials in the room that they needn't bother about what Francis Maude wanted".

It's one reason why he's introducing a plan for civil service reform, including greater accountability for the top officials in government departments.

But how often have senior officials actually been behaving in this unconstitutional and obstructive way to intentionally thwart the wishes of ministers? I made a freedom of information request to the Cabinet Office for examples of the problem Maude is angry about.

I was surprised to get the reply that they couldn't tell me about any - because they haven't got any relevant recorded information.

So what is the explanation for this? "Francis Maude was referring to verbal communications rather any recorded information", a Cabinet Office spokesperson told me. (FOI requests only cover information which is recorded in some form).

But why are none of the examples recorded? "There is no list of examples, because we haven't held a meeting to collate the examples," says a source close to Maude. "We didn't think it would be fruitful to do so".

So if that's the explanation, I suppose at least it means it wasn't because the minister asked officials to draw up a list of examples of civil servant obstructiveness and they refused to do so.

Slow progress on coalition's commitment to extend FOI

2012-11-03T15:10:34+00:00

Although the coalition government is committed to extending the scope of the Freedom of Information Act, the process is turning out to be excruciatingly slow.

Before the 2010 election the Conservatives promised to extend the FOI Act to additional bodies "within weeks of the General Election". A consultation was announced by the Ministry of Justice on 7 January 2011, but two and a half years after the election, a decision on the outcome is still not close.

A recent parliamentary question by Stewart Jackson MP asked what progress had been made extending the Act to registered providers of social housing. The minister's answer revealed that consultation with these bodies is yet to even begin, despite Grant Shapps, the former housing minister, promising back in June 2011 they would be consulted later that year. It also confirmed that it could be spring 2015 before the extension of FOI to bodies with public functions is complete.

Last year, the MoJ disclosed further details about which bodies it is consulting about coverage following a FOI request by the Campaign. Someone else asked for the responses received by the MoJ from those bodies, but the MoJ refused that citing the exemption for information relating to the formulation or development of government policy. The Information Commissioner recently upheld the department's refusal to disclose the responses on the grounds that the policy process was still live at the time of the request. The Commissioner's decision cites the strong weight that should be attached to 'safe space' arguments and, to a lesser extent, the 'chilling effect', as the two reasons for his finding that the public interest favoured withholding the information, despite the fact that the disputed information involved third party information and not the advice of officials.

In contrast, the Ombudsman in New Zealand has just published a case note on a complaint where she found there was no good reason to withhold responses to a government consultation exercise which were still under active consideration under the Official Information Act (h/t Andrew Ecclestone):

Ombudsmen have rejected the argument that premature release of public submissions would impede the subsequent development and consideration of policy advice by officials and Ministers. Disclosure of submissions cannot pre-empt or prejudice the ability to consider later advice that may in part be based on the submissions. Officials remain free to advise Ministers (and Ministers to advise Cabinet) about the merit or lack of merit in particular submissions as they see fit, and to offer such additional advice as they deem appropriate.

It's clear that section 5 is not the appropriate mechanism for resolving anomalies in the legislation's coverage, given the time it takes. Last year the Campaign worked with Lord Wills on an amendment to the Localism Act which would have brought the Housing Ombudsman under FOI, though the amendment was not accepted. From 1 April 2013, the Housing Ombudsman's jurisdiction will be extended to all social housing in England. The government is consulting the Ombudsman on FOI coverage and the Service's website says it "will follow the terms of the Act voluntarily whenever possible". But judging by the minister's answer it will be several years yet before requesters have a legally enforceable right to obtain information from it.

FOI Media Update - October 2012

2012-11-03T15:08:37+00:00

Tax-dodging clampdown will aid open-government commitments - The Guardian - 30.10.12
Eric Gutierrez, senior governance advisor at Christian Aid, states that the UK government's transparency commitments and its leadership of the Open Government Partnership (OGP) are commendable. However, some transparency commitments are more politically difficult than others, he says, and it's the difficult ones that, so far, are still not appearing in the government's agenda for the OGP.

Whistleblowing cases soar by 276 per cent since beginning of financial crisis - Lawyer Monthly 30.10.12
Whistleblowing cases reported to the Financial Services Authority have increased by 276 per cent in four years, according to information obtained under the Freedom of Information Act by Kroll Advisory Solutions, the global investigations firm. Kroll, which provides corporate investigations, says that over the last 12 months almost one in five (18 per cent) of its investigations were prompted by a whistleblower.

DfE spent £13k on legal advice after FOI for Gove’s private emails - Computerworld UK -29.10.12
The Department for Education (DfE) spent some £12,539.50 on legal advice relating to a freedom of information (FOI) request for information in education secretary Michael Gove’s private emails. The Information Commissioner ruled that the DfE had to respond to the request because the information in the emails amounted to departmental business. The DfE initially launched an appeal against the Commissioner's decision, but has now withdrawn its appeal.

Pilots in safety scares after 'falling asleep mid-air while flying' - The Telegraph - 29.10.12
Two pilots fell asleep while flying planes full of passengers. The safety scares emerged as the British Airlines Pilots Association warned the problem was commonplace. In one incident, a captain left to use the lavatory but when he return could not raise his first officer through the radio, according to the Sun newspaper. The captain then used a code to get back in the cockpit where he found the pilot "slumped over the controls", according to official records of the incident. The Civil Aviation Authority records were obtained by the newspaper under Freedom of Information laws.

Ambassador held official talks with US defence firm he later joined - Independent - 28.10.12
Sir David Manning, the former UK Ambassador to Washington and a foreign affairs adviser to Tony Blair, met with senior executives at Lockheed Martin and gave advice on the handling of contracts affecting the company before taking a paid role with the defence giant.

Documents released under a Freedom of Information request disclose the contacts Sir David had with the multinational arms manufacturer before he left the diplomatic service and became a non-executive director of the UK wing of Lockheed Martin. The documents, which were released only after pressure from the Information Commissioner, will raise further concerns about the "revolving door" involving defence companies and senior figures from the public sector.

Eric Pickles: Savile scandal shows BBC is too secretive - The Telegraph - 28.10.12
Eric Pickles, Secretary of State for Communities and Local Government, called on the corporation to embrace transparency, allow requests under freedom of information laws and publish spending data if it wants to restores itself “in the affection of the nation”.

Publish full MPs' expenses receipts, IPSA orders - The Telegraph - 27.10.12
The Independent Parliamentary Standards Authority (Ipsa), which oversees expenses payments, has been told by the Information Commissioner that it must disclose the receipts handed in by MPs to back up their claims. It was found that Ipsa had breached the Freedom of Information Act and was given five weeks to hand over the documents or face prosecution for contempt of court. Ipsa said it was studying the ruling. It must consider whether to appeal.

Labour and tories under fire for inflating Trident job losses - Herald Scotland - 27.10.12
Labour and the Conservatives have been accused of misleading the public by exaggerating the number of jobs that would be lost if the Trident nuclear weapons system were removed from the Clyde. Figures released by the Ministry of Defence (MoD) under freedom of information law reveal that only 520 civilian jobs at Faslane and Coulport near Helensburgh are directly dependent on Trident. This contrasts with the 6000-11,000 jobs that pro-Trident politicians claim are at risk. Predicted job losses are central to the arguments about Scottish independence, which could see Scotland refuse to allow nuclear warheads on its soil.

Landmark victory for police candidate - Western Telegraph - 27.10.12
A senior police officer has won a landmark victory in his quest to find out why he didn’t get the job of Chief Constable of Dyfed-Powys Police. Howard Roberts, formerly Deputy Chief Constable of Nottinghamshire, is convinced that something went awry with the selection process for the Dyfed-Powys job in 2008. Now a tribunal has upheld his claim under the FOI Act and ordered Dyfed-Powys Police Authority to give him more information, which includes personal data on an HM Inspectorate of Constabulary official who sat in on the selection. Upholding Mr Roberts challenge, Judge Farrar said: “There can be no question as to the substantial public interest in the integrity of the selection procedure for any public office, but most particularly an office as responsible and politically sensitive as that of Chief Constable."

Welsh hospital bed numbers fall by 1,000 in three years - BBC - 26.10.12
The number of beds in Welsh hospitals has fallen by more than 1,000 (8%) in three years, BBC Wales has discovered. Statistics from Welsh health boards after Freedom of Information requests also reveal that many hospitals are routinely overcrowded.

Hospitals 'paid millions to put patients on death pathway' - The Telegraph - 26.10.12
Hospitals are being paid millions of pounds to reach targets for the number of patients put on a controversial pathway for the withdrawal of life-saving treatment, according to data based on Freedom of Information requests.

Compensation payouts for hospital workers - The Leigh Reporter - 26.10.12
Employees at the borough’s hospitals are still claiming hundreds of thousands of pounds in compensation following accidents at work. A Freedom of Information request to Wrightington, Wigan and Leigh NHS Foundation Trust (WWL) has revealed that the last year five of 20 claims submitted have been settled, resulting in pay-outs of £38,250. From 2009/10 to 2011/12 WWL has been liable for £225,685 in injury pay-outs which could rise if the outstanding cases are successful.

Manchester Council spends £19m on consultants – as it makes £109m of cuts - Manchester Evening News - 25.10.12
Manchester council spent almost £19m on consultants in three years – at the same time as making £109m worth of cuts. Town hall bosses spent the money hiring outside experts as they brought in a series of cuts to jobs and services. The figures were obtained under Freedom of Information by the city’s Liberal Democrat opposition who slammed the council for spending taxpayers’ cash ‘lining the pockets’ of consultants.

Oil companies going unpunished for thousands of North Sea spills - The Guardian - 25.10.12
Oil companies operating in the North Sea have been fined for oil spills on just seven occasions since 2000, even though 4,123 separate spills were recorded over the same period, the Department of Energy and Climate Change (Decc) has confirmed. The disclosure came as Decc said on Thursday that the government had offered a "record-breaking" 167 new licences to oil and gas companies seeking to drill in the North Sea. Total fines resulting from prosecutions between 2000 and 2011 came to just £74,000 and no single oil company had to pay more than £20,000. Information about the fines was released by Decc after a freedom of information request and further inquiries by the Guardian.

Political editor wins battle to get FoI requests answered - Hold The Front Page - 24.10.12
A newspaper journalist whose two Freedom of Information requests have remained unanswered for a year has won the backing of the Information Commissioner. Paul Francis, political editor at the KM Group, submitted requests to two government departments around a year ago but has not received any formal response to one of them and has appealed for further details on another. After failing to receive answers to his requests Mr Francis complained to the Information Commissioner, who has now given the two departments a deadline to reply.

Cumbria police taser figures revealed - North West Evening Mail - 22.10.12
Tasers have been deployed by police in Cumbria more than 100 times, it was revealed following a Freedom of Information request. Information received showed that Tasers were deployed 139 times from March last year to August this year. Thirty of these instances involved firing the Tasers.

Vulnerable to be hurt most by 'inhumane' support cuts - Independent - 22.10.12
The Independent's survey of local authorities in England based on Freedom of Information requests found that only 14 per cent currently provide help for those with moderate social care needs. This is set to fall to 11 per cent next year as councils – including Darlington, Rochdale and York – are forced to make further cuts to social care budgets.

Mobile phone driver danger revealed - Wigan Today - 21.10.12
Thousands of motorists are still putting lives at risk by phoning at the wheel. Figures obtained through a Freedom of Information request revealed that more than 2,350 drivers in Wigan have been issued with a fixed penalty notice in the last three years after being caught either texting or phoning while their vehicle is in motion.

Watchdog clears police over Kelly pictures - Witney Gazette - 20.10.12
The Information Commissioner has upheld Thames Valley Police’s decision not to release uncensored photographs relating to the death of weapons inspector Dr David Kelly, saying the release would cause “significant distress” to the family of the scientist, whose body was found in woods at Harrowdown Hill, near his Southmoor home in 2003.

DWP fired hundreds of staff for not turning up at work - Personnel Today - 19.10.12
The Department for Work and Pensions (DWP) dismissed 672 people last year for unsatisfactory attendance, a Freedom of Information Act request has revealed. The data also found the average number of sick days per DWP employee and that of other government departments.

Ben Wallace MP: policiticians will suffer while Commons secrecy continues - The Telegraph - 19.10.12
The Speaker's attempt to block the publication of a new tranche of MP's expenses could damage politicians' reputations, argues Conservative MP Ben Wallace.

Attorney General blocks disclosure of Prince Charles letters to ministers - The Guardian - 16.10.12
The government has blocked the disclosure of a set of confidential letters written by Prince Charles to ministers. The attorney general issued a veto that puts an absolute block on the publication of 27 letters between the prince and ministers over a seven-month period. The decision comes after seven government departments lost a long-running freedom of information battle over the disclosure of the letters. The veto overrides last month's ruling by the tribunal that the public had a right to know how the prince sought to change government policy. Following his decision, the Guardian announced that it would be seeking to take the government to the high court to challenge the veto on the grounds that it had acted unreasonably.

Join the Open Rights Group today to help protect your digital rights

2012-11-02T13:49:36+00:00

A quick reminder from me as to why everyone should care about digital rights:

Digital rights are human rights - they go beyond the technorati.

Parents get advice and support on all kinds of issues on Mumsnet. Feminists organise through websites like The F Word which often translate into real world action. Disabled people find new ways of reaching out to the world and fighting for their rights through The Broken of Britain Campaign. Bullied lesbian, gay, bisexual or transgender teens can find new hope through the It Gets Better videos. Men, women, black, white, straight, gay, Muslim or humanist, able-bodied or not, the internet brings us together and empowers us all.

At the same time, this new-found empowerment is under constant threat. Copyright lobbyists are demanding powers to censor free speech and disconnect us from the internet without due process. Politicians threaten us with the Great Porn Firewall of Britain, potentially preventing vulnerable LGBT teenagers from accessing information and safe spaces online that may help them come to terms with their sexual orientation and even save their lives. People are taken to court for posting messages on Twitter and Facebook. The security services want to know where you've been, who you've been talking to, and what websites you've visited.

As the information war gains new fronts almost on a daily basis, it is vital for all of us to be engaged in what is perhaps the defining political issue of the 21st century.

And now we interrupt your regular schedule for a special announcement from the Open Rights Group:

After a year of successes ORG is ready to take the next step in the battle for your rights!

We campaigned for change to copyright that would create a new right to parody, built the coalition against the Snoopers' Charter, broke the story of Mobile Internet censorship, and our hard work against ACTA came into fruition as we watched MEPs shoot down a law that would have led to damaging copyright policy. We couldn't have done any of it without our supporters!

ORG is now prepared to take legal action to challenge threats to your digital rights.

We now need to fund a new position: a legal expert who can co-ordinate our crack-team of volunteer lawyers, perform thorough legal research, and create new case law to actively prevent potential threats to civil liberties.

You can help ORG achieve this! We only need 150 new members to start our legal project; 300 new members could pay a Legal Officer full time. Join the Open Rights Group today to help protect your digital rights!

Climategate: Police file revealed

2012-11-01T10:47:15+00:00

Last night BBC Radio 4 broadcast a documentary about the Climategate affair, in which thousands of documents mysteriously obtained from a computer server at the University of East Anglia were released onto the internet in 2009.

The material belonged to some of the world's leading climate scientists and caused them difficulty just before the major United Nations Copenhagen summit on climate change.

Called Climategate Revisited, the programme examined the impact of the ensuing controversy about the conduct of climate science on public opinion, media reporting and the scientific community. It was produced by me.

Making a radio documentary is always an exercise in trying to squeeze a quart into a pint pot. Your researches invariably collect more information and recordings than it is possible to fit into the allocated slot.

Since in this case some unbroadcast material comes from a freedom of information request, I thought I should write about it here. So this contains some additional information about the police inquiry beyond what was in the programme.

Norfolk police investigated the possible criminal hacking of the university's computer system, until they announced in July they were abandoning the operation. Proceedings under the relevant part of the Computer Misuse Act have to be brought within three years. Since they had not yet identified a suspect, they said there was no prospect of a prosecution within the time limit.

I submitted an FOI request for some of the files compiled during their inquiry, called Operation Cabin. The first point I should make about their response is that they released much more information than in any previous case in my experience where the police have been asked about such a recent investigation. I did not get all the material I requested, but they did send a number of interesting documents.

During the operation some people queried whether the Norfolk force had sufficient expertise to run a specialist technical cybercrime inquiry. This concern is reinforced by the files released.

The operation was reviewed by a senior counter-terrorism officer who concluded that "there are national units both in policing and with partner agencies that have specialist knowledge and skills that would have added value to the inquiry."

He did praise the Norfolk investigators for their "impressive" commitment, adding that most UK police forces have little specialist capability in this arena.

The Norfolk investigation was led by Detective Superintendent Julian Gregory, who has since retired. He told us: "We sought assistance from a number of quarters and we probably didn't get everything we wanted."

"If you look at national assets, they've all got their own workloads," he said. "We got the technical support we needed from counter-terrorist command, but other units had their own priorities."

Another document shows that the police decided not to make a media appeal for information to assist the investigation during the Copenhagen climate summit (known as COP15), because "with COP15 still underway in Copenhagen raising awareness still further may have an negative impact on the conference".

Some may be surprised that the police would allow these apparently political considerations to affect their conduct of an investigation.

Former Det Supt Gregory explained that "we didn't want to create even more speculation around that conference". But he also stated that more significant was a practical consideration, a feeling that the police infrastructure might not be able to cope with the deluge of calls which could result.

Other files released show that the University of East Anglia was represented on the Gold Group which oversaw the strategy of the investigation. Meetings were attended by Brian Summers, the UEA Registrar.

I was initially surprised to discover this, since one hypothesis the police had to investigate was whether it could have been an "inside job" in which a UEA employee had leaked the material, acting as a kind of whistleblower. But I gather from other police sources I have talked to since that this is not necessarily unusual.

"We'd often engage the people we think need to be involved in a Gold Group," former Det Supt Gregory told us. "Presence at the meeting doesn't give any undue influence or anything untoward like that. It was appropriate that they were engaged and we understood their perspective as we undertook our work."

But he added there were constraints on what he said at the Gold meetings. "Where appropriate I would not enlarge on certain lines of enquiry. I would deal with those in a more private context. I never felt compromised as the senior investigator."

The disclosures also reveal how the police worked their way through certain websites on which Climategate had been discussed, printing off and filing away, for example, a list of staff at the Taxpayers' Alliance.

And they also contain a list of operational tasks actioned, plans for forensic examination of UEA computing equipment, and questionnaires for police interviews, which included asking people for their stance on climate change.

However, there was other information which the Norfolk police refused to release, such as the identity of those countries from which they sought help with the investigation. They argued that this could damage future international cooperation.

These are some of the documents released by the police:

Prince Charles letters: the attorney general's statement deciphered

2012-10-17T13:24:25+00:00

The government has blocked the publication of 27 letters Prince Charles wrote to ministers. The attorney general's justification for the ban turns out to reveal how disclosure of the letters could jeopardise Charles's chances of becoming king

Rob Evans

Robert Booth

Steve Bell on Prince Charles's letters to ministers - cartoon

2012-10-16T19:14:15+00:00

The attorney general has vetoed the publication of 27 missives between the heir to the throne and MPs

Steve Bell

Attorney general blocks disclosure of Prince Charles letters to ministers

2012-10-16T13:34:00+00:00

Guardian to challenge Grieve's ruling that release of 27 letters 'could damage prince's ability to perform duties as king'

The government has blocked the disclosure of a set of confidential letters written by Prince Charles to ministers.

Dominic Grieve, the attorney general, issued a veto that puts an absolute block on the publication of 27 letters between the prince and ministers over a seven-month period. Grieve said the letters contained the "particularly frank" and "most deeply held personal views and beliefs" of the prince.

The decision comes after seven government departments lost a long-running freedom of information tribunal over the disclosure of the letters.

The veto overrides last month's ruling by the tribunal that the public had a right to know how the prince sought to change government policy.

Grieve's decision comes after seven years of government resistance to the Guardian's request to see copies of the prince's letters to ministers over the seven-month period in 2004 and 2005.

Following his decision, the Guardian announced that it would be seeking to take the government to the high court to challenge the veto on the grounds that it had acted unreasonably.

The prince has for some years been accused of meddling in government affairs and seeking to influence ministers to alter policy.

In a statement on Tuesday justifying his use of the veto, Grieve said: "Much of the correspondence does indeed reflect the Prince of Wales's most deeply held personal views and beliefs. The letters in this case are in many cases particularly frank.

"They also contain remarks about public affairs which would in my view, if revealed, have had a material effect upon the willingness of the government to engage in correspondence with the Prince of Wales, and would potentially have undermined his position of political neutrality."

Grieve continued: "In summary, my decision is based on my view that the correspondence was undertaken as part of the Prince of Wales's preparation for becoming king. The Prince of Wales engaged in this correspondence with ministers with the expectation that it would be confidential. Disclosure of the correspondence could damage the Prince of Wales's ability to perform his duties when he becomes king.

"It is a matter of the highest importance within our constitutional framework that the monarch is a politically neutral figure able to engage in confidence with the government of the day, whatever its political colour."

Katy Clark, a Labour MP who campaigns for an elected head of state, said she was appalled at the attorney general's decision, which she described as "quite shocking".

"The more you hear about the lobbying that Charles has undertaken over decades, the more inappropriate it seems," she said. "My concern is that government policy has been changed and it would seem to me that Prince Charles should not be allowed to hold undue influence over aspects of health policy and architectural policy where he has little experience."

Lord Rogers, the Labour peer and architect whose schemes have been previously torpedoed by the prince's private interventions, said he believed the government's decision would continue to allow the royal "to do the damage and disappear without a trace".

Rogers said: "It is either a democracy or it is not. I don't think anybody, be it a king, prince or poor man, has a right to undermine decisions by private interventions which have a public impact. The only way for Charles to be a public figure is for him to act publicly. It is not democratic to cover up his interventions."

He said the secrecy also clashed with Prince Charles's own claims that he represents a strand of public opinion. He said if he considered himself representative then those representations must be made in full view.

The judges on the information tribunal had ruled in favour of releasing the letters, stating: "The essential reason is that it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government."

They decided "it was fundamental" that the lobbying by the heir "cannot have constitutional status" and cannot be protected from disclosure.

The evidence, they said, showed "Prince Charles using his access to government ministers, and no doubt considering himself entitled to use that access, in order to set up and drive forward charities and promote views, but not as part of his preparation for kingship … Ministers responded, and no doubt felt themselves obliged to respond, but again not as part of Prince Charles's preparation for kingship."

Graham Smith, the director of Republic, a pressure group which is campaigning for greater transparency over royal engagement in politics said: "He clearly has something to hide and this is a coverup.

"In a very convoluted way, [Grieve] is saying it is in Charles's interests to use the veto and therefore it is in the public interest, which it isn't.

"There is no credibility to Grieve's remarks and he is simply making sure that Charles isn't exposed for lobbying government."

Rob Evans

Robert Booth

[Elsewhere] Ada Lovelace Day: A Celebration

2012-10-16T12:46:03+00:00

Back in April this year, the Guardian published its "Open 20" - a list of twenty "fighters for internet freedom". As with any such list, the opportunities for criticism and disagreement are endless. What struck me in particular, though, is that not only does the list contain just four women but one of them is Ada Lovelace. As illustrious and pioneering a woman as the Countess of Lovelace was, she died in 1852, over a hundred years before anything that can be legitimately seen as a progenitor of the internet, and thus can hardly be described as a fighter for internet freedom. You know we're struggling to showcase female participation in a field when we have to scrape the barrel for examples from before the field even existed.

[Ada Lovelace Day] Finally, my mother...

2012-10-16T06:39:28+00:00

Today is Ada Lovelace Day. Today we blog about great women in science, engineering, technology and maths - women who have inspired us, women who can act as role models to a whole generation of girls and show them that a successful career in a male-dominated area is not only possible but also fulfilling. Today is when I tell you about my mother.

My mother was born in the 1950s and grew up in Communist Bulgaria. She wanted to be a doctor. At the time, trainee doctors were shipped off all over the country, and you had no control over where you would be sent - my grandparents were not happy about this, and as far as I know the story, my grandfather put his foot down and told my mother that she wasn't allowed to study medicine. They made a deal: if she agreed to study something more acceptable, like chemistry, he would enable her to go on exchange to Moscow. My mother kept her end of the bargain but for reasons I don't know she never went to Moscow.

Once she graduated, my mother had a successful, decade-long career as a research chemist. She had specialised in organic chemistry and surfactants - things that you find, for instance, in washing powder. What she actually worked on were better, foam-based fire extinguishing chemicals.

Fairly early on in her career, my mother decided to have me. She got married at 23 and had me when she was 25. In some ways, having children young was easier in Communist Bulgaria. Maternity leave provisions were extremely generous with a paid period and up to three years unpaid. Childcare was affordable and pretty much universally available. In some ways, it was tougher - my parents lived with my grandparents until I was four years old.

My mother wanted to put me in nursery when I was six months old and return to work. I'm afraid I was having none of it, and in the end, she took the full three-year maternity leave. I'm not sure I can really regret something I did when I was six months old, but this one I do. Once she did return to work, she continued to work on fire extinguishing foams, and her career progressed pretty well.

I have a very vivid memory - I must have been eight or nine - of my mother taking me into work. It may have been during the school holidays, or school may have been closed for some reason - I'm not sure. I got to watch one of her experiments - I got to watch her set things on fire! That was exciting! Very shortly after that, like so many women in so many different circumstances, my mother sacrificed her career for our family.

When Communism collapsed in 1989, things took a turn for the worse very quickly. By early 1990, there was quite literally no food. There was food rationing. I remember booklets of yellow vouchers - this many for sugar, that many for flour, that many for oil. I remember - aged nine - fighting in a supermarket with a middle-aged woman over a bar of soap. I remember one bitterly cold January day standing with my mother in a queue at the butcher's only to watch as they ran out of everything just before it was our turn. The butcher had put aside some meat for his own family, and when he saw me, he decided to share it with us. By mid-1990, my father had decided that we were leaving the country.

How exactly we ended up in Austria is a different story entirely, but while my father was fluent in German, neither my mother nor I spoke a word. I was thrown in at the deep end, sent to school, and within a few months, I was fluent. My mother had a much tougher deal. While I was at school and my father was at work, she was home alone with a pile of textbooks. She didn't have the confidence, nor really the opportunity, to go out and speak. On top of that, my father insisted that at home we spoke Bulgarian - and while in the long run that was the right decision for me and the whole family, in the short run it made my mother's life even more difficult.

By the time my mother's German was good enough to work and she managed to wrangle a work permit, she'd been out of chemistry for four years. She was in a foreign country which hardly had any industry at all - certainly not in the part of the country where we were - and had very little of a social network. Would she have liked to return to science? I think so, but I don't know for certain. In the end, though, she looked at which of her skills she could market and began first to teach German to refugees from the various Yugoslav wars and then to translate for an insurance company. She has changed career twice since then and now works in back office in an investment bank.

Here are some of the things my mother taught me:

Women work. For as long as I remember, my mother has had a job and most of the time a career. The short periods between jobs or careers were the times when she was truly miserable. She always wanted to work. There were - as far as I'm aware - never any questions about "having it all", about combining motherhood with a career. My father pulled his weight around the house, and my mother worked outside the home. This was normality. I distinctly remember, when we moved to Austria, finding out that there were women who were "housewives". I did not understand that concept. Women worked.

Not only do women work, but women can be anything they like. My mother was a research chemist, after all. When I was still in kindergarten, I actually thought she was a firefighter, because she worked in the research division of the national fire service. When I told the other kids this, they told me that women couldn't be firefighters. I never believed it for a second - my mother was one, after all. When I was growing up and considering various career options, at no point did I ever think "I can't do that because I'm a woman" or "It'll be more difficult for me to do that because I'm a woman".

These two very basic assumptions - that women work and that women can do whatever they like - are incredibly deeply ingrained in my approach to life. They give me what I'm sure looks from the outside like a huge sense of entitlement: as long as I work hard and bring the right skills to the table, I have a right to be in any workplace and any profession I choose. Yet this sense of entitlement is tempered by the third thing that my mother taught me - that sometimes we have to make choices and adapt.

In her fifties now and on her fourth career, my mother's done her fair share of adapting. She's adapted to changing priorities, to external catastrophes, to circumstances beyond her control. It is that adaptation that for me has enabled those first two basic assumptions to survive contact with western capitalist society. I'm nothing like as good at this as my mother - or possibly my priorities lie elsewhere and I have made different choices - but I greatly admire her for it, and for everything else she's achieved.

Nothing to hide

2012-10-07T16:25:30+00:00

Imagine the government had the power to compel your internet service provider, your mobile operator, or even Google and Facebook to collect or retain certain data about your activities: who you were talking to, when and how long for; where your mobile phone was at a given time; what websites you visited. The police could then use this data to scan for suspicious activity, or trace an individual suspect's activities through the entirety of their electronic life.

This is precisely what the government is proposing in the Draft Communications Data Bill. While some data is already being retained for a limited time period with the intention of being able to reconstruct a suspect's activity for criminal investigation purposes, the new proposals go several steps further. They include the creation of entirely new data sets and the powers to "data mine" - investigate the data for conspicuous patterns even if no crime has been committed.

Sure, you say. I'm not a suspect; I've got nothing to hide. If it helps the police catch terrorists and paedophiles, why not?

Are you sure you have nothing to hide? Who decides what activity is suspicious, and what action to take as a result? Think about it.

Let's say you're an investigative journalist - or simply someone who likes the idea of investigative journalists being able to do their jobs and expose shady dealings and dodgy expense claims. You're the kind of investigative journalist who meets contacts at random times in random places, who gets anonymous tip-offs, who works on stories that can be extremely embarrassing to the government... or the police. Even if your activity hasn't already been singled out for analysis, chances are a high level scan would throw you up as someone who is suspicious. Who are you meeting in the middle of the night in a deserted car park? The police only need to look up who the other mobile phone in that car park belongs to, and they know. Who have you been emailing? What have you been googling? Suddenly a picture begins to emerge of the story you're working on.

Oh, and by the way... your mobile phone was located at your GP's surgery three times this month; or at the abortion clinic last week; or at the AA meeting. While the police may not necessarily want to know that, there are plenty of people who do: you employer, your church, or if you happen to have the misfortune to have attracted public interest in some way, the Daily Mail. Have we really seen the end of phone hacking, blagging and all the other dirty tricks that went with them in the tabloid press? Just by existing, the enormous data set the government is proposing to create becomes a target for all sorts of malicious activity.

It's not like police don't already abuse existing data either. With access to location information or detailed data on who someone has been communicating with, corrupt police officers get even more leverage over their victims. Domestic violence victims may well initiate contact with their abuser as part of the pattern of abuse they suffer. If the copper investigating your case has that information they can blackmail you into all sorts of things with the threat that it will be used to "prove" that you aren't a victim of domestic violence after all.

Call me paranoid, but before handing additional powers to the state, I would like them to pass the "Stross Test". This is based on a short story called "Minutes of the Labour Party Conference 2016" by Charles Stross, published in the anthology "Glorifying Terrorism". In the story a BNP government uses anti-terrorism legislation passed by Labour in 2006 to establish and uphold a fascist state by labelling all opposition, including the Labour Party, as terrorists. Would you trust the BNP with the Draft Communications Data Bill?

The Open Rights Group is currently campaigning against the Bill. You can use the ORG campaign website to email your MP and explain to them your concerns about the proportionality, the potential for abuses and the lack of proper safeguards of these proposals.

In the meantime, with party conference season upon us, I will leave you with this thought from the minutes of that fictional Labour Party Conference in 2016:

"The Party would be grateful if you can reproduce and distribute this document to sympathizers and members. Use only a typewriter, embossing print set, mimeograph, or photographic film to distribute this document. Paper should be purchased anonymously and microwaved for at least 30 seconds prior to use to destroy RFID tags. Do not, under any circumstances, enter or copy the text in a computer, word processor, photocopier, scanner, mobile phone, or digital camera. This is for your personal safety."

Spam text senders face fines of up to £500,000

2012-10-01T11:45:55+00:00

Two people who sent out millions of texts offering accident compensation first to be targeted by ICO crackdown

Two people responsible for sending out millions of spam texts offering accident compensation and payment protection insurance (PPI) mis-selling services face fines totalling about half a million pounds, following a crackdown by the Information Commissioner's Office (ICO).

Another eight companies could face similar fines as the data enforcement office concentrates on unsolicited texts, which its research has shown is one of the most annoying examples of unwanted marketing people receive.

The case is the first of its kind in which the ICO has used its new powers to levy fines of up to £500,000 for misuse of personal data.

Among the abuses cited are that the texts had no named sender, and that when people texted "STOP" to be taken off the list, their number was added to a new list, which was then sold to other companies for further spam marketing.

It is also illegal to send text marketing messages or automated marketing calls to people who have not opted to receive them from the company involved – which also means any company that used the numbers collected from "STOP" texts would be breaking the law.

The ICO said more cases were in the pipeline as it tries to stamp out such practices. "Those who blatantly break the law will be in line for a sizeable six-figure penalty from the ICO," said Simon Entwisle, the office's director of operations.

The individuals, who have not yet been named, have been given 28 days to respond to the ICO to explain how their activities were legal. If they cannot, then a "final penalty notice" will come into force, making them personally liable for the payment.

They were both linked to a company that is registered under the Data Protection Act, but which the ICO said broke the law in sending the texts.

Entwisle said: "The public have told us that they are increasingly concerned about the illegal marketing texts and calls. These are often made by rogue companies claiming to offer payouts for accidents a person has never had or payment protection insurance claims that they are not necessarily entitled to."

He added: "While companies can phone people to sell them the latest product or service, the law states that individuals should not receive unsolicited texts or automated marketing calls unless they have given their permission."

The ICO said it had been investigating the two individuals since the end of last year. "They are linked to the same company, and are ultimately responsible for the actions of the company," said a spokesman.

UK-based marketing companies are forbidden from calling people who have registered their numbers with the free Telephone Preference Service unless they have received explicit consent.

However, the growth in availability of automated diallers and databases of mobile phone numbers, plus the rise of low-cost internet-to-SMS "gateways", has made it easier and cheaper for scammers to send out huge numbers of texts indiscriminately.

The ICO said in the past six months, since it began asking people to forward examples of spam texts, it had received nearly 30,000 examples.

Charles Arthur

Why 'saintly' could be a secret

2012-09-28T16:06:56+00:00

What do civil servants in the Department of Energy and Climate Change think about the Guardian's environmental columnist George Monbiot - and why does it have to stay secret?

I was pondering on these questions when I read a document released earlier this month by the energy department in response to an information request.

It featured in a collection of departmental files relating to "Climategate", the incident in 2009 when large quantities of emails belonging to climate scientists at the University of East Anglia were hacked and published on the internet.

The major controversy that followed focused on concerns about how some scientists were operating. In the aftermath, officials involved in government energy policy were worried about how it would affect public opinion on policies to tackle climate change.

In June 2010, DECC's then head of science Dr Nafees Meah gave an internal presentation to colleagues about communicating climate science.

In it, he noted that Monbiot had called for the resignation of Professor Phil Jones, head of the university's Climatic Research Unit, who featured prominently in the hacked emails.

Monbiot later regretted this, when an inquiry cleared Prof Jones and his colleagues of manipulating data, while stating that they should have been more open about their work. But at the time, many considered it striking that a leading environmentalist had criticised Prof Jones to such an extent.

Dr Meah's reference to Monbiot (who he called "Mombiot") was preceded by some description of him, which was removed from the disclosed text of the speech:

What could he have said that demanded such secrecy, amidst the release of a large collection of government documents which contained much revealing material?

DECC has now told me that the missing words are "the saintly".

"The decision to redact the wording was made on the basis that, in printed form, the comment could have been misconstrued in the absence of the speaker's intonation," the department said.

"On reflection, however, it is considered that this approach was erring on the side of caution."

So now we know that Monbiot was described as "saintly", even if we still don't know the intonation with which this epithet would have been uttered.

And perhaps we have learnt something else - that when government departments respond to information requests, sometimes extracts are redacted for unnecessary and rather peculiar reasons.

Hillsborough: Power of documentary evidence

2012-09-13T09:40:50+00:00

The vast quantity of material released by the Hillsborough Independent Panel contains much of the truth - the real truth - about the nation's worst sporting tragedy and its aftermath. In some ways the panel's work and its reception is testament to the power of documentary evidence.

This wasn't a traditional public inquiry aimed at analysing causes, interrogating the views and counter-views of those involved, attaching blame and devising recommendations for the future.

It was simply an attempt to collate all the available evidence and to publish it. I was struck by how, at their press conference, the panel members stressed that this was their role and that they did not seek to make value judgements.

Yet it is clear from the reaction to the panel's report that this did nothing to reduce its impact. Facts, not comment, have caused shock and outrage, headlines and apologies.

The panel and its research and archiving staff have certainly done an impressive job of organising, cataloguing, presenting, contextualising and summarising a huge amount of paperwork. The excellent Guardian Datablog has an interesting overview of the material released.

Of course documents by themselves can never provide the full truth about a complex set of events. That would always need to take in individual recollections, the direct accounts of those involved, and the chance for those criticised to provide their version of events.

But when there are well-founded suspicions of a cover-up by the authorities, the pure disclosure of the raw information can be the crucial remedy. This is the key point appreciated by Andy Burnham when, as a cabinet minister, he persuaded the Labour government to establish the panel in 2009.

And as regular readers of this blog will know, the BBC pursued a freedom of information request about the tragedy from the time before the panel was established.

Perhaps this is a model that may be adapted to other controversies. It suits an era where we have the technology of the internet and the political force of the notion of transparency.

Driven by their distress over cover-ups and misinformation, the bereaved families have long demanded complete disclosure of all relevant documents. Has this total disclosure been achieved?

As conscientiously recorded by the panel, it decided not to publish - despite the wishes of most of the bereaved families - some "very sensitive personal data". This was "out of respect for those who died" and is of course entirely understandable.

It redacted some personal information about others where disclosure would not "add to public understanding".

The panel also encountered insuperable legal obstacles to obtaining some material held by Liverpool Law Society on behalf of local solicitors who had represented the bereaved and survivors in various proceedings.

But there is no evidence that any part of the state has held anything back from the panel.

Although papers revealing the views of government ministers were originally excluded from the panel's terms of reference, this constraint was abandoned and they do feature in the files released.

In fact, the thoroughness of disclosure is such that they even include extracts from the cabinet secretary's notebook recording discussions at cabinet meetings. Unlike the official minutes, this notes the different views of individual ministers. In the past, the notebooks have been kept secret - as noted by the National Archives - for longer than the standard 30-year rule which applies to the official record of the meetings.

It is possible to compare the handwritten notes taken by the cabinet secretary Sir Robin Butler at the cabinet meeting in the wake of the Hillsborough tragedy with the official minutes.

The one organisation criticised by the panel for not fully co-operating and supplying all the information it could is a private - not public - body.

This is the Royal Sun Alliance insurance company, which at the time of the disaster in 1989 insured Sheffield Wednesday, the club that owns the Hillsborough ground. The panel report draws attention to numerous safety defects at the venue.

The insurance company refused to give the panel confidential access to its legally privileged information, despite the panel's "strenuous efforts" to persuade the company to comply.

A company spokesperson told me: "The panel's terms of reference related to the disclosure of documents held by public bodies and did not apply to any of the private bodies involved. However, we willingly co-operated with the panel, disclosing all relevant materials in our possession. It is not our practice to release legally privileged materials."

Under the Freedom of Information Act, public authorities can be forced to disclose legal advice and other legally privileged documents when this would be in the public interest.

There is no similar legal provision for the private sector.

FOI, fear and personal emails

2012-09-11T07:50:09+00:00

"It feels wonderful to work free from fear of FOI!!"

This expression of relief came in an email from a civil servant at the business department discussing government matters - but sent from his personal email account to colleagues at their private email addresses.

I have just been provided with a copy of this email and others about internet policy sent through personal accounts. Although written back in October 2008, the issue they illustrate - of the relationship between FOI, official business and private email accounts - is still very much a continuing one.

The message was sent by Geoff Smith, an official at what was then called the Department for Business, Enterprise and Regulatory Reform (Berr), now the Department for Business, Innovation and Skills.

It dealt with departmental policy towards Nominet, the private company that controls the .uk internet domain and is thus a crucial part of the UK's online operations.

In 2008 the organisation was trapped in a bitter internal dispute. Some involved felt this threatened its ability to fulfil its nationally important responsibilities and could require government intervention.

According to emails seen by the BBC, Mr Smith was one of a group of Berr and Nominet staff who corresponded about Nominet's problems and Berr's position via their personal email accounts.

Some seem to have been worried that earlier official exchanges on these topics could be publicly revealed through freedom of information requests.

In another email obtained by the BBC, Nominet's senior policy adviser Martin Boyle - who had himself only recently worked at Berr - encouraged his former colleagues still at the government department to delete emails because he suspected "a FOI is just around the corner".

Allegations that business department officials used private email addresses to seek to circumvent FOI surfaced in an employment tribunal case involving Nominet, which was first reported last month after legal restrictions were lifted.

BIS and Nominet both declined to comment on the specific content of these emails.

A Nominet spokesperson explained: "It is not our policy to comment on individual emails."

Similarly, a spokesman for the Department for Business, Innovation and Skills (BIS) said: "We won't comment on individual cases, or on leaked documents."

He added: "However, our longstanding IT security policy is clear: All official correspondence from BIS must be undertaken from a BIS email account and all breaches of our IT policy are thoroughly investigated. Additionally, the department is fully committed to the Freedom of Information regime, including the latest guidance from the Information Commissioner's Office regarding the use of personal accounts."

Government policy on internet governance is now handled by the culture department rather than BIS.

In November the Information Rights Tribunal will hear a case concerning the use of private emails by the Education Secretary Michael Gove and his advisers. The Department for Education is appealing against a decision by the information commissioner, who ruled that private email accounts are subject to FOI requests when used for official business.

Last year Chris Graham, the commissioner, made clear his view that, whatever any officials and ministers think, they can't evade the FOI law by using private email.

In other words, if the tribunal upholds his stance, officials and ministers will find that using personal email accounts does not guarantee that they are operating "free from fear of FOI".

Changing our attitude

2012-09-08T20:39:35+00:00

David Cameron hopes that the Paralympics will change our attitudes to disability. In the interview he gave to Channel 4's Alex Brooker just before the opening ceremony (which I cannot for the life of me find a clip of), the Prime Minister said that he wanted us all to focus on what was possible rather than what was impossible with regards to disability. A laudable aim? Not necessarily, when you consider his government's record on disability.

The government's policy of cutting benefits and trying to move more disabled people into work has been a miserable failure. Hundreds of people died last year after being declared "fit to work" by Paralympics sponsor ATOS, while over 50,000 people (over one third of all claimants delcared fit for work) have had their Work Capability Assessment overturned on appeal. Yet by framing the Paralympics in the narrative of "what is possible" David Cameron continues to steer us all down the line of believing that there are only two options for the disabled: be a Paralympic athlete or be a benefits scrounger.

Having spent the last two weeks watching disabled people break world records and achieve the seemingly impossible, we can perhaps be forgiven for falling for the "what is possible" narrative. We have, after all, acquired a whole host of new heroes: Ellie Simmonds, Alex Zanardi, Kylie Grimes, Sarah Storey, Johnny Peacock, Hannah Cockroft, David Weir, Terezinha Guilhermina have all become household names synonymous with courage and perseverance in the face of adversity. It is a hugely empowering story for the disabled and able-bodied alike. Arguably though, it is not the full story, and the question we should be asking is not "what is possible" but "how is it possible".

Throughout the Paralympics, we have seen glimpses of where the narrative breaks down. We saw Mirjam de Koning-Peper not start at the S6 100m freestyle because her condition - which is variable - had deteriorated. We heard athletes thank a dozen people - coaches, physios, funders - who have supported them and enabled them to get to where they are. We saw Ade Adepitan demonstrate how he could actually turn his wheelchair in the bathrooms in the Paralympic village - the first Paralympic village with that particular feature! We saw, albeit briefly and only on Channel 4's brilliant The Last Leg, armless athletes struggle to get out of an Olympic swimming pool with no ramps. No matter how much courage and perseverance you have, individual achievement does not happen in isolation.

Unfortunately, we still live in a society where the odds are overwhelmingly stacked against disabled people. With the government's sustained two-year campaign of painting anyone on any kind of benefits as a scrounger, we have seen disability hate crime soar. People are having their benefits taken away, being declared fit to work in an economy with an unemployment rate of 8% and with no support to help them make a successful transition into work. They are being put through extremely stressful assessments which often exacerbate their conditions. By all means, our attitudes to disability should change - but the first people to change their attitude should be David Cameron and his cabinet.

Yet we have also seen how the right support and the right investment can enable anyone to achieve their full potential. Lottery funding and the rare corporate sponsorship have enabled athletes like Hannah Cockroft to shine. Channel 4 has invested £600,000 in training and developing their amazing team of disabled presenters. In these rare and exceptional cases where we have bothered to create an even playing field, we have managed to all but obliterate the boundaries between the disabled and the (temporarily) able-bodied. Yet that takes time, it takes investment and dedication from all of us as a society. Can we all commit to doing that? Can you, Mr Cameron?

Response to DfE Consultation on Parental Internet Controls

2012-09-05T18:18:39+00:00

The Department for Education's consultation on parental internet controls (aka the Great Porn Firewall of Britain) closes tomorrow (that's Thursday, September 6th). For those of you who've not been following this one, this is the proposal to make ISPs block pornography unless you specifically ask them not to. It's one of those ill-thought-out "think of the children!" initiatives which make it look like the government is doing something while being both utterly ineffective and actively harmful.

The Open Rights Group has a campaign page which makes it easy for you to tell the government precisely what you think of the Great Porn Firewall of Britain, and even if you only write two sentences, I would still strongly encourage you to head over there and submit a consultation response before close of business on Thursday. If you need inspiration, mine's below:

My response to the Department for Education Consultation on Parental Internet Controls

A copy of this email is going to my MP. I am raising my concerns about the proposal for network filtering of adult content and default blocking.

I would like to submit the following evidence:

The proposals for default blocking of certain content are ostensibly there to make it easier for parents to restrict their children's access to online pornography. Yet this is a blanket measure which will in one way or another affect all 26 million households in the UK. According the government's own data only 7.5 million of those households actually have dependent children living in them. This is clearly a vastly disproportionate measure.

Additionally, such mechanisms are unlikely to actually work, either at the micro and at the macro level. From an individual household's point of view, blocking content at the point of internet connection ignores the fact that different members of the household have different content needs. Content filters also have a tendency to not be very effective at blocking the kind of content they are targeted at, while also often blocking content which is harmless.

The proposals are of particular concern to the LGBT community as simple information about different sexualities can often be blocked by such filters. For children and teenagers growing up and beginning to question their sexuality in an environment which is often still hostile, lacks positive role models and where bullying is rife, the internet can often be a lifeline to finding more information, talking about one's experiences and finding a more accepting community. The blocking proposals put this lifeline at risk and thereby put children at risk.

Finally, blocking as proposed at the internet connection level is open to future misuse and abuse and opens the door to censorship of other material without adequate justification or oversight.

NHS trust fined £175,000 for 'troubling' data security breach

2012-08-06T12:14:30+00:00

Torbay Care Trust published personal details of more than 1,000 NHS staff online, leaving them open to identity theft

A health body has been handed a six-figure penalty after publishing sensitive personal details of more than 1,000 NHS staff on the internet.

Employees with the Torbay Care Trust (TCT) in Devon found details of their sexual orientation and religious beliefs were published online, alongside their name, date of birth, pay scale and national insurance number. It did not contain any patient or clinical data, the trust said.

TCT was given a £175,000 penalty on Monday, following the investigation by the Information Commissioner's Office (ICO), which described the data breach as "serious" and "extremely troubling".

The ICO said the trust published the information in a spreadsheet on its website in April 2011, and only spotted the mistake when it was reported by a member of the public 19 weeks later.

It was estimated that the spreadsheet was viewed 300 times during that period, although investigators were unable to identify all of those who accessed the information.

The ICO's investigation found that the trust had no guidance for staff on what information should not be published online and had inadequate checks in place to identify potential problems.

Stephen Eckersley, ICO head of enforcement, said: "The fact that this breach was caused by Torbay Care Trust publishing sensitive information about their staff is extremely troubling and was entirely avoidable.

"Not only were they giving sensitive information out about their employees but they were also leaving them exposed to the threat of identity fraud.

"While organisations can publish equality and diversity information about staff in an aggregated form, there is no justification for unnecessarily releasing their personal information. We are pleased that the trust is now taking action to keep its employees' details secure."

In its report, the ICO adds: "The contravention [of security] is serious because [the trust's data protection policies] did not ensure a level of security appropriate to the harm that might result from such unauthorised processing.

"If the data has in fact been accessed by untrustworthy third parties then it is likely that the contravention would cause further distress and also substantial damage to the data subjects such as exposing them to identity fraud and possible financial loss."

The ICO said it had not received any complaints from NHS employees, adding that it was not aware of any previous data breaches at the trust, which has now introduced a new web management policy to make sure personal data is not mistakenly published on the internet.

Apologising to staff, TCT chief executive, Anthony Farnsworth, said: "This was an organisational issue, in which the absence of sufficient checks within our processes made an error possible, and we have treated this with the utmost seriousness.

"We have since implemented far more robust procedures for managing staff information to make this more secure, and to remove the risk of any such incidents occurring in the future.

"We are of course disappointed that the information commissioner has found it necessary to impose a fine for this incident, but we accept the findings. Provision was made to potentially pay such a fine, so there is no affect on budgets for staff, or health and social care services.

"I would like to apologise, again, to these individuals for any concern that has been caused."

Blacklisted builders launch mass legal action against Sir Robert McAlpine

2012-07-28T23:06:30+00:00

Workers branded 'troublemakers' on shadowy industry database make multimillion pound claim against construction giant

Workers blacklisted by the construction industry over more than three decades have launched a high court claim against industry giant Sir Robert McAlpine, the Tory donor and builder of the Olympic Stadium, for conspiring with other firms to keep them out of work.

The workers allege that the company, which also worked on widening the M1 motorway, was involved in an unlawful conspiracy to amass a database of information against thousands of people, which was used to prevent them earning a living in their trade. The claim involves 86 of 3,400 workers in the files of the Consulting Association, a covert organisation paid by big names in the industry to collect damaging information on workers regarded as leftwing or troublesome. The files included information about trade union membership, relationships, friendships and political views, along with surveillance intelligence.

The value of the initial claim for loss of earnings and damages is estimated to be around £17m, but many more of the victims are expected to add their names to the action in the coming months, raising the potential claim against the construction industry to about £600m, according to one source.

Sir Robert McAlpine, which was paid £50m to help build London's Olympic Stadium, was served nine days ago with legal papers alleging it was one of the "construction companies which had subscribed to the database – which involved inter alia the wrongful gathering, storage and use of information concerning trade union activities and in particular the making of decisions as to whether or not the claimants should be employed".

Sir Hugh Tomlinson, principal QC for alleged victims of the phone-hacking scandal which closed down the News of the World, is representing the workers allegedly robbed of their livelihoods by Sir Robert McAlpine and others.

The Consulting Association, a clandestine organisation funded by major names in the construction industry, was run by Ian Kerr for more than 30 years. Its database was seized nearly three years ago, but the extraordinary nature of the information it held only fully emerged following a recent employment tribunal for one of the victims, Dave Smith, 46, an engineer who had a 36-page file against his name and was repeatedly victimised for highlighting safety hazards on sites, including the presence of asbestos.

The Information Commissioner's Office said at Smith's tribunal that it believed some of the information held by the covert organisation and accessible to companies that subscribed to the service "could only have been supplied by the police or the security services".

The Observer understands that, as part of the legal claim against Sir Robert McAlpine, which donated £100,000 to the Conservative party in 2008-09, the victims' solicitors, Guney, Clark & Ryan, have obtained a court order to visit the Information Commissioner's Office over the next few days and take away unredacted files recovered from the offices of the Consulting Association in 2009.

A source said the information could also form the basis of a civil claim against the police for their alleged involvement with the blacklisting. The victims are also compiling a file to accompany a complaint to the Independent Police Complaints Commission about what they claim was collusion with the Consulting Association.

One of the workers involved in the legal action, Mick Abbott, 73, a father of four who lives in Wigan, said the file held on him by the Consulting Association included information on his trade union activities from the 1960s up to 2006, leaving him unable to find a job in the industry since 1985.

"This nearly ruined my marriage and it meant that my children were on free meals at school," he said. "My file goes back to 1964 and the last entry says that I rekindled the campaign for justice for the Shrewsbury picketers in 2006. They have been watching me all these years and passing this information around, blighting my life over four decades. I had to become self-employed and go into work with my sons fitting kitchens."

Smith, whose tribunal formed a key turning point in the victims' campaign, said that his earnings had gone from about £36,000 in 1999 to just £12,000 before tax in 2001 amid an economic boom because he was suddenly blackmarked by the industry for his work as a health and safety officer on sites. He said: "This is about justice. People's lives have been ruined. I had to leave the industry because of this, as did many others."

Sean Curran, of Guney, Clark & Ryan, said: "We have seen evidence that suggests our clients were the subjects of unwarranted blacklisting within the UK construction industry. We can confirm that formal legal proceedings have been issued on behalf of those workers who believe that they suffered as a consequence of their inclusion on the Consulting Association database. It remains our intention to offer all necessary legal support to those who feel that their ability to obtain employment has been affected by what has taken place."

Labour MP John McDonnell, who has been supporting the victims, said the rejection by prime minister David Cameron of his appeal for a public inquiry suggested he was "more interested in protecting employers than getting to the truth for the victims".

A spokesman for Sir Robert McAlpine said: "As legal proceedings have been issued it would be inappropriate for Sir Robert McAlpine Ltd to make any comment at this stage."

Daniel Boffey

The Justice Committee Report

2012-07-26T10:57:49+00:00

The Freedom of Information Act has been a significant enhancement of our democracy

These are the stirring introductory words to the report of the House of Commons’ Justice Committee, produced in their key role in the post-legislative scrutiny of the Freedom of the Information Act 2000. saveFOI – a disparate group of practitioners, experts and activists – was set up because of perceived threats to the effectiveness of the Act from this scrutiny process. Along the way there have been some worrying and some more reassuring rumours. We even felt compelled at one point to write to the Committee because of some concerns we had about the process.

Now the report has been published, and we are – broadly – very pleased with the outcome. The Committee have also lambasted Tony Blair for his failure to co-operate with the process – but we’ll leave it saveFOI co-founder Tim Turner to demolish Mr Blair’s stance.

Here are some of the reasons why we’re pleased:

“Chilling effect”

It is very important to note that, despite strong arguments from loud voices, the Committee was not convinced that the “chilling effect” on government and policy development was supported by much more than bold assertions

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act. On the one hand, the Constitution Unit’s research—the most in-depth available—suggests it has only a marginal effect. On the other hand, a range of distinguished participants who are, or who have been recently, at the heart of the policy-making process attest that it is a problem…Given the uncertainty of the evidence we do not recommend any major diminution of the openness created by the Freedom of Information Act, but, given the clear intention of Parliament in passing the legislation that it should allow a “safe space” for policy formation and Cabinet discussion, we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions.(§200-201)

However, the Committee might have – wittingly – given the green light to further use of the illiberal ministerial veto powers under section 53 of the Act

We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space.(§201)

Prospect of charges

Despite worries that the Committee would bow to pressure to call for FOI requesters to pay a small charge to make a request, there is no such recommendation

fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act. (§85)

“Requestor blindness”

Some witnesses had called for charges for certain classes of requestor (for instance the media, or commercial organisations). This too has been rebuffed

The Act operates on the basis of requester blindness. As a result developing a way to charge requesters who commercially benefit from the information they receive from public authorities is difficult, if not impossible. Any requirement that requestors identify themselves could easily be circumvented by requestors using the name of a friend, family member or other person. Attempts to police such a system, either by public authorities or the Information Commissioner, would be expensive and likely to have a limited effect.(§81)

“Frivolous” requests

There had also been suggestions of a new exemption to cover “frivolous” requests, including from the Information Commissioner. The Committee, while not completely rejecting this idea, was not convinced it was necessary

It is apparent from witnesses that frivolous requests are a very small problem, but can be frustrating. There is a case for adding frivolous requests to the existing category of vexatious requests which can be refused, but such requests can usually be dealt with relatively easily, making it hard to justify a change in the law.(§135)

Fees Limits

The Committee does recommend some changes be considered however. It clearly accorded some weight to arguments that the burden on public authorities in complying with complex and voluminous requests was too great. The report suggests that consideration be given to reducing the amount of time an authority need take in searching for and compiling information

complying with its duties under the Act can be a significant cost to a public body. A standard marginal decrease in the 18 hour limit may be justifiable to alleviate the pressure on hard-pressed authorities, particularly in the context of increasing numbers of requests. We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected (§61)

However, the Committee was not of the view that reading and consideration time should also be taken into account

Such activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.(§60)

Pre-publication of research exemption?

A possibly important change is proposed at §202-214 – Universities argued strongly in written and oral evidence that there was insufficient protection for pre-publication research under the existing Act (and that a provision in the Freedom of Information (Scotland) Act 2002 should be mirrored in the FOI Act). The Committee took this on board

We recommend section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland. While the extension of section 22 will not solve all the difficulties experienced by the universities in this area, we believe it is required to ensure parity with other similar jurisdictions, as well as to protect ongoing research, and therefore constitutes a proportionate response to their concerns.

Although there is an argument that sufficient protection exists under the existing statutory scheme, this is not either a particularly unexpected nor unwelcome proposal provided sufficient safeguards are built in to ensure such an exemption is not abused.

Section 77 prosecutions

It is not surprising that the Committee also recommend a change to the provisions of the Act dealing with the criminal offence of altering/erasing/concealing information. Currently this provision effectively requires the Information Commissioner to bring a prosecution within six months of the offence taking place. As often the Commissioner would not find out about an offence until well after this, the chances of bringing a prosecution have been very low – as he himself has pointed out . The report says

The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.(§121)

Statutory time limits for internal review etc

Under the current scheme when an authority wishes – where appropriate – to extend the time to consider the public interest test, or is asked to undertake an internal review of a refusal to disclose, there is no further statutory time limit. This has been described as an anomaly, and the report rightly calls for it to be corrected

We recommend the 20 day extension be put into statute. A further extension should only be permitted when a third party external to the organisation responding to the request has to be consulted…We recommend that a time limit for internal reviews should be put into statute. The time limit should be 20 days, as at present under the Code of Practice, with a permitted extension of an additional 20 days for exceptionally complex or voluminous requests.(§111-112)

FOI and private contractors

The Committee recognised that the “right to access information must not be undermined by the increased use of private providers in delivering public services” but generally felt that current commercial and contractual arrangements should normally suffice to prevent this

We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.(§240)

Disclosure logs and names of requestors

A slightly surprising recommendation is that

where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it.(§82)

As this falls under a heading in the report of “charging media companies”, it appears to be aimed at addressing concerns about use of the Act for commercial or journalistic purposes. However it is phrased in general terms (and is also in the report summary) and authorities would be well-advised not to implement this in advance of any clear statutory or other guidance – it appears to us to run the risk of unfair disclosure of personal data and a potential breach of the Data Protection Act 1998.

Conclusion, and what next?

Mostly good! Some concerns remain, and we’ll continue to read the report and possibly blog in more detail in coming weeks.

It’s clear the Committee have applied themselves admirably to the task (and this was evident from an early stage). What the government, and ultimately Parliament, does next remains to be seen. Possible future battle lines were drawn in an exchange between Jack Straw (yes, yes, we know he’s not in this government, but…) and the Campaign for Freedom of Information’s Maurice Frankel on BBC Radio 4 this morning. Straw’s only real concern appeared to be the lack of recognition of the need for a “safe space” for government and policy-making. Of course, such a safe space already exists (see the discussions on the “chilling effect” and consider the broad exemption and veto powers under sections 35, 36 and 53) but the government may pursue this point.

saveFOI will continue to work to defend the Act, and we recognise that the Justice Committee’s report is only one part (albeit a major one) of the struggle.

Further reading

Many pieces and analyses are already emerging. Here’s a selection

Information Commissioner, Christopher Graham

FOIMan – “Justice for FOI”

Tim Turner – “Revenge of the Nincompoop”

UCL’s Constitution Unit – “No Going Back: Committee Protects FOI”

BBC’s Martin Rosenbaum – “Commons Report praises current FOI system”

and finally

“Campaign welcomes Justice Committee FOI report” from the redoubtable Campaign for Freedom of Information, without whom, as they say, perhaps none of us would be here.

MPs disappoint opponents of FOI

2012-07-26T05:07:07+00:00

Supporters of freedom of information will be relieved, but many of its critics will be disappointed.

That is the likely reaction to the new report by the Commons Justice Committee, which has assessed how FOI is working in practice and concludes that the UK's Freedom of Information Act "is serving the nation well".

The two controversial topics it has focused on most are the cost of FOI and its impact on the frankness of internal policy debate. In both areas the MPs on the committee are not convinced by many of the challenges from those who think the FOI system is too expensive or damaging to good government or both.

Thus, on the starkest, most high-profile issues, the committee does not recommend giving cabinet records or other policy documents any increased legal protection from FOI requests; nor does it back the introduction of up-front fees for making freedom of information applications.

But it is clear from the cautious and nuanced report - and from their lines of questioning at the committee hearings - that the MPs do have some significant worries.

The Ministry of Justice will now have to consider how to respond to the committee's review of the workings of the Act and whether to bring forward any changes.

Much of the evidence to the committee from public authorities concerned the administrative burden of FOI. While the report stresses that FOI disclosures can prompt savings as well as costing money, it suggests a number of smaller measures to address the expense issue.

Currently most public authorities can reject FOI requests where it would take them more than 18 hours to retrieve the information. The MPs propose cutting this to 16 hours. But they reject as unfeasible the more drastic option of allowing authorities also to count towards the limit the time spent thinking about whether to release material.

It is interesting to see that the committee strongly maintains that well-run public authorities can cut the cost of FOI considerably.

As to whether FOI has in fact introduced a "chilling effect" on honest records of policy discussion, the MPs are clearly concerned and summarise the evidence on both sides while eventually remaining agnostic. However they argue that if this is the case, the solution is not to curtail FOI. Instead senior government figures should proclaim that FOI does leave a "safe space" for internal debate and use their ministerial right of veto over the Information Commissioner if necessary.

Yet there is one category of critic of the FOI system who will be pleased - university researchers. Many academics had argued that the UK-wide FOI Act should have an exemption for academic research intended for later publication, as is the case in Scotland. This is the only restriction on the scope of FOI that the committee back.

In terms of the main complaints coming from those who want greater openness, the MPs were clearly influenced by the argument that there is too much delay in the current system.

The committee recommends that the law should lay down statutory time limits on how long public authorities can take to assess whether releasing material is in the public interest and to decide on reviews of their previous decisions. Currently the time limits are only advisory.

The report is unanimous and some of the conclusions have a balanced "on the one hand, on the other" tone which hints at compromises and some differences beneath the surface.

The MPs are clearly very cross with Tony Blair because of his failure to give evidence to them in person, despite his well-publicised self-condemnation of himself as a "nincompoop" for introducing FOI.

But for me the most striking feature of his letter to the committee is the fact that it states one purpose of the legislation was "to permit people to access information about themselves held by government".

This is simply wrong, since personal information of this kind is specifically excluded from the FOI Act and is instead covered by the Data Protection Act.

I have also heard this same inaccurate and peculiar claim made by Jonathan Powell, Blair's former chief of staff and fellow FOI critic.

I don't know what to make of this error, but since Mr Blair did not appear in front of the committee, the MPs did not have a chance to ask him about it.

Finally, as a declaration of interest, I should state that I gave evidence to the committee from a journalistic perspective for BBC News.

David Cameron criticised for attacks on Freedom of Information Act

2012-07-16T16:37:44+00:00

Information commissioner says remarks criticising act may be encouraging 'bad behaviour' among civil servants

The information commissioner has accused David Cameron and other members of the political establishment of launching a damaging attack on the Freedom of Information Act which he says is encouraging civil servants to obscure the government from proper scrutiny.

Christopher Graham said public condemnation of the law from the prime minister, Tony Blair and the former cabinet secretary Lord O'Donnell was "driving bad behaviour" and possible illegal activity in Whitehall. He said the coalition may have abandoned its promise to be the most transparent ever because of the pressures of power.

His words are part of a robust defence of the Freedom of Information Act 2000, which allows members of the public to request and examine records of meetings between civil servants and ministers. Critics have claimed it is restricting the way that ministers and civil servants communicate.

In a wide-ranging interview with the Guardian, Graham also claimed that:

• His office had found evidence of the destruction of public documents in government but was powerless to prosecute because of a legal loophole;

• Private providers that are moving into previously public services such as welfare-to-work companies should also be covered by the act;

• He suspects the use of private emails in Whitehall to avoid public scrutiny is widespread.

Speaking days before the publication of a long awaited justice select committee report into freedom of information, he said: "There has been a recent and loud cri de coeur from the establishment about freedom of information, and no doubt the establishment wishes it could go back to its old ways.

"There are some very powerful voices saying it [the act] has all been a horrible mistake. Specifically, Tony Blair, Gus O'Donnell [the former head of the civil service] and the prime minister himself," he said before adding the name of Simon Jenkins, the former Times editor and Guardian columnist.

Graham claimed that their criticisms of the act were encouraging the use of unofficial, private email addresses and verbal briefings, which would in turn make government less accountable.

"So long as senior politicians and mandarins and distinguished former editors of the Times go around saying that freedom of information legislation is all terrible, they are driving bad behaviour because more junior figures in the civil service will assume that you can't write anything down and that government can only be done by word of mouth. It is the enemy of good government," he said.

Blair has said his administration's support for the act in 2000 was his biggest mistake in government, claiming it has stopped honest discussions between ministers and their close aides. O'Donnell has also voiced concerns while Cameron two months ago criticised the "endless discovery process" of responding to freedom of information (FIO) requests.

Two years ago, Cameron promised that the government would be "the most transparent ever".

Graham said that there has been a noticeable and dangerous drift away from FOIs.

"The coalition government is keen on transparency and open data but at the same time I get the sense they are much less enthusiastic about FOI than when they came in. Possibly, it's all a bit hard to live with in government," he said. "Sometimes the full story is in the background papers and minutes of meetings rather than just raw data."

Graham, who moved to the post two years ago from the Advertising Standards Authority, has been engaged in two major clashes with the coalition government – the decision to veto the release of the NHS risk register, which is an assessment of the planned changes to the health service, and the refusal of Department for Education (DfE) to concede that Michael Gove was wrong to use his wife's private email address to communicate with aides, circumventing FOI legislation.

The decision by Andrew Lansley, the health secretary, to use the ministerial veto in May was the second time coalition ministers had overruled information tribunal decision this year.

Graham, a former Liberal councillor in Liverpool, said: "That particular veto has raised a question which is still unresolved, which is what were the exceptional circumstances in this case? We need to know, if only to save the cost of these cases for the public purse."

Lansley's efforts to keep the report hidden had resulted in a bigger row than if it had been released, Graham said.

"Looking on I thought: 'Why take all this incoming [fire] in defence of what is a rather arcane principle?'" he said.

Gove, the education secretary, has admitted using the email address of his wife, the Times journalist Sarah Vine – in correspondence known as the Mrs Blurt emails – to conduct government business. Following the culture secretary Jeremy Hunt's disclosure to the Leveson inquiry that he used his Gmail account to communicate with aides, Graham says the practice was widespread.

"I would be amazed if this kind of behaviour was confined to one or two corners of government. I think that it is standard behaviour of the political class," he said. He criticised the decision of the DfE to challenge his ruling asking for the Gove emails to be disclosed.

"Maddeningly, the [DfE's] appeal won't come on until the autumn. I have absolutely no doubt that the appeal will be rejected.

"There is no case for saying that private emails on government business should not be considered to fall within the FOI Act and trying to get round that is just silly," he said.

Graham said he and staff had found evidence that civil servants had destroyed or hidden information that should or could have been released under FOI, but had not been able to prosecute because the law allowed for six months to build a case, which was not enough.

"We have encountered evidence that material wasn't on the record when it should have been and it had been gotten rid off after the request was made, which is an offence under section 77 of the act.

"But prosecution under the present law is difficult because it must be completed within six months of being brought to the commissioner. I flagged up this problem to the justice committee and will see how they respond," he said.

Private companies that are being introduced into public spheres, such as welfare-to-work companies and police agencies, need to come within the Freedom of Information Act, said Graham, to ensure public scrutiny.

"No one seems to be thinking through what the result of 'big society' initiatives are. The irony is that you may get greater efficiency but you could end up with less accountability," he said.

As the coalition reorganises public services, it is creating new agencies but is failing to leave them exposed to the act, he said.

"The new National Crime Agency will not be a public authority under FOI but it is taking on responsibilities from the Borders Agency and the National Police Improvement Agency which were covered by FOI. Accountability is escaping under the door – and I don't know if this is deliberate or unintended," he said.

Rajeev Syal

Advance News on FOI’s Future?

2012-07-09T06:44:10+00:00

The Guardian yesterday appeared to have advance news on the outcome of the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act. It reported

Pressure from former senior Labour figures, including Tony Blair and Jack Straw, as well as Whitehall mandarins, to “turn back the clock” on freedom of information legislation has been decisively rejected by an all-party group of MPs…The report…[will]…reject the idea of charging for FoI requests, arguing that any blanket charges that would start to cover the costs would be prohibitively high.

If the article is correct, this is fantastic news. As saveFOI have argued before, the cost of running a charging scheme would be a huge problem. But above all, any change which would hinder people from exercising their rights under the Act would be worrying and retrogressive.

It also appears that the Committee has not bowed to pressure to change some exemptions into absolute ones (which once engaged cannot be overridden by public interest in disclosure):

[it] is to come down against creating a sweeping exemption from FoI legislation for information used in Whitehall policy formulation and development. The MPs also reject weakening the FoI law on the release of information that would prejudice collective ministerial responsibility, or inhibit the frank exchange of views within the government.

The article goes on to suggest, however, that there may be one signficant change to the cost limit for responding to a request:

The MPs do, however, back a two-hour cut to the 18-hour time limit after which a public body can impose a one-off charge to cover the cost of the extra work of dealing with a request.

Such a change could potentially make accessing larger or more complex amounts of information more difficult. While it would be regrettable, if it is the only major amendment, it is perhaps one we can live with.

What was also interesting in the article was the suggestion that the report will be critical of Tony Blair’s lack of engagement with the scrutiny, saying it will

strongly criticise a refusal by Blair to give evidence to its inquiry into the operation of the Freedom of Information Act, after the former Labour prime minister described it as one of his greatest mistakes in office. The MPs’ report will “deplore” Blair’s refusal to give evidence in person or in writing, and will publish his letter explaining that he was too busy.

The indefatigable Campaign for Freedom of Information (CFOI) inform us the report will be published on 26 July: when it is, and if it is as described, it may be that it was strongly influenced by the CFOI’s extraordinarily powerful supplementary submission, which demolished some of the prior claims by those arguing for illiberal changes. But all those who submitted evidence in favour of the status quo, and all who have campaigned to save FOI, will feel their efforts have been worth while.

Fingers crossed…

Operation Motorman: 72 people told they were targeted by investigator

2012-07-06T10:21:51+00:00

ICO has received 285 requests from people who may be named in Steve Whittamore's files, the majority since Leveson inquiry

More than 70 people have been told by the Information Commissioner's Office (ICO) they were the target of a private investigator who worked for newspapers.

At least 72 people have been confirmed as appearing in the Operation Motorman files – which list targets of Steve Whittamore, a private investigator who traded in private data about celebrities and other high profile public figures – after they contacted the ICO.

To date, a total of 285 people have asked the ICO whether they are among 4,000 names that appear in the logs. Only 72 have been positively identified, but they have not been named as this would breach their privacy.

The UK's data watchdog has held the Operation Motorman files since 2003, when it retrieved the logs during a raid on Whittamore's private office.

The ICO based two 2006 reports – What Price Privacy? and What Price Privacy Now? – on the data, which it said revealed a widespread undercover trade in private information by newspapers and magazines.

Operation Motorman returned to the spotlight in December last year, when the Leveson inquiry into press standards questioned whether the 2006 reports should have rung alarm bells that might have prevented or exposed the phone-hacking scandal.

It is understood that the vast majority of the 285 people contacted the ICO after December 2011.

In February this year the data watchdog set up an online fast-track system for people who want to know whether they were named in the files. To date, 135 people have used this system and none have been positively identified in the Operation Motorman logs.

The information commissioner, Christopher Graham, launched the scheme after mounting pressure from campaign groups to make the Operation Motorman files public.

Graham withstood pressure from the Hacked Off group to release the files, arguing that doing so would breach the privacy of those named in the report.

Calls to release the data intensified in April after Paul Staines, the political blogger Guido Fawkes, published a section of the Motorman report on his website.

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Josh Halliday

Google UK privacy manager worked for ICO during Street View probe

2012-07-05T16:52:26+00:00

MP to raise matter in parliament after it emerges Stephen McCartney was at watchdog during controversial investigation

Google's UK privacy manager was a senior official at the Information Commissioner's Office (ICO) during its much-criticised investigation into Street View, it has emerged.

Stephen McCartney joined Google as its London-based privacy policy manager in November last year – 18 months after he was in charge of data protection promotion at the watchdog at the same time that it cleared the company over its secret data collection by Street View cars. The ICO reopened its investigation in June following fresh evidence from a US regulator.

Rob Halfon, the Tory MP for Harlow who has been critical of the ICO and Google over the data capture, said he would raise the matter in parliament. He told the Guardian: "This is a pretty shocking revelation. It raises more questions about the information commissioner than it does Google because clearly the ICO has been asleep on their watch on this issue."

McCartney was one of the top officials at the ICO at the time of its 2010 investigation. However, the ICO said McCartney was not involved in its original investigation.

The news came to light following a Freedom of Information request by a member of the public who noticed that McCartney, formerly the head of data protection promotion at the ICO, had more recently been writing to the ICO itself from Google as it responded to the latest investigation.

The 2010 probe faced a barrage of criticism by privacy activists who said it failed to get to the bottom of Google's mistaken capture of emails, passwords and other private data from internet users. The ICO reopened its investigation in June after a detailed probe by the US Federal Communications Commission, which concluded that the data collection was not the action of a single "rogue engineer", and that one senior manager had been told that the system could capture Wi-Fi data.

Google was fined $25,000 by the FCC, which could find no evidence of criminal wrongdoing under US law, but said Google had "wilfully and repeatedly" failing to respond fully to an official letter of inquiry.

The news will also prove uncomfortable for Google, which has been plagued by the data scoop since first admitting it in May 2010.

The ICO confirmed in the Freedom of Information request that McCartney formerly worked there. His LinkedIn page says he was the head of data protection promotion and strategic liaison group manager at the ICO for seven years until November 2011.

Halfon said that the ICO "acted after the horse had bolted and have been woefully lacking". He added: "Now it seems they have had a cosy relationship with the company they have been investigating."

The ICO also released correspondence between its office and McCartney over the Street View issue from April to June this year.

In one email on 4 May 2012 to the information commissioner Christopher Graham, McCartney – at Google – complains about "significant errors" in the reporting of a US Federal Communication Commission (FCC) investigation into the so-called "payload" data collection.

"We are aware that there have been significant errors in the reporting of the content of this notice by the media, and that some data protection authorities have made statements to the media on the basis of these errors," McCartney wrote to the ICO.

"We have always recognised that we failed badly here, and we are happy to answer any questions authorities may have. But we do feel that there are factual errors in some of the reporting that needs to be addressed."

He then goes on to highlight four points from the FCC report, but does not give examples of misreporting by the media. In other emails, McCartney alerts the information commissioner to the planned publication of the FCC report, which Google voluntarily published at the end of April.

A spokesman for the ICO said: "Stephen McCartney played no part in the investigation into the Google Street View project while working at ICO. In any event, ICO employees continue to be legally bound by a confidentiality agreement after they leave the organisation, as part of the Data Protection Act.

"The published correspondence between Google and the ICO clearly shows that Stephen McCartney was treated like any other organisation's representative, with his emails receiving nothing more than a polite acknowledgement. "

"Stephen Eckersley, the ICO's head of enforcement, continues to investigate Google's actions with regard to the Street View project."

A Google spokesman said: "We do not comment on individual employees."

Josh Halliday

Historic cases, but not a backlog

2012-07-04T14:16:03+00:00

For years the Nursing and Midwifery Council (NMC) has been failing to cope with the number of complaints it has to handle into whether particular nurses or midwives are fit to practise, leading to long delays.

Yesterday it was the subject of a scathing report from the Council for Healthcare Regulatory Excellence (CHRE), which condemned the NMC for - amongst other failings - its longstanding record of confusion of purpose, lack of clear strategic direction, inconsistent governance, unbalanced working relationships, deficient leadership, weak business planning, internal cultural problems, poor financial stewardship, unreliable management information, risky IT systems, and insufficiently transparent decision-making.

The CHRE report refers seven times to what it describes as the backlog of cases faced by the NMC (if you're inclined to check for yourself, one of these is spelt as "back log").

The NMC accepts that there have been "substantial failings" in its work, and its interim chief executive Jackie Smith apologised yesterday. She says they have started to tackle the organisation's many defects.

But what the NMC will not apparently accept is that its problems amount to having a "backlog" of complaints to adjudicate on.

When one of my colleagues make a freedom of information request three months ago for documents using the term "backlog", she was told that "the information requested is not held" - because "the NMC does not have a backlog of cases."

Today an NMC spokesperson admitted: "We recognise that not all of our cases are being progressed as quickly as we would want or expect."

But she justified the FOI reply: "We absolutely stand by the response that was given in the FOI request. There are a number of cases which are actively being progressed. Backlog is not a word we choose to use. There is no backlog - we have a caseload."

Instead what the NMC does have apparently is a large number of what it prefers to call "historic" cases.

E-Crime Wales

2012-06-29T16:27:32+00:00

E-Crime Wales provides a useful set of resources including a free to download ”Preventing E-Crime for dummies” which in around 112 pages covers a number of topics such as :

Defending your IT Network
A Dozen Best Security Practices
Ten Tips to Prevent Data Loss Today

Loads of fact-sheets too including gems such as :

Security Auditing Planning and Review
Cloud Computing Security Considerations
Managing Risks of Employee Behaviour

Being supported by the Welsh Assembly Government some sections, not surprisingly, have a Welsh flavour, but for the most part the advice and resources are of general application.

ANPR

2012-06-29T10:44:01+00:00

In a recent Information Tribunal decision, Mathieson v Information Commissioner and Chief Constable of Devon & Cornwall, the First Tier Tribunal upheld an Information Commissioner decision and declined to order disclosure of the locations of ANPR (Automatic Number Plate Recognition) cameras. The Tribunal was satisfied that s24 FOIA (purposes of national security) and all limbs of s31(1) (prejudice to detection of crime etc.) were all engaged and determined the public interest against disclosure.

However what is missing from the judgement and earlier decision notice is any consideration of the duty to advise and assist, in particular consideration of whether a more limited disclosure e.g. location by postcode district rather than precise location might have been possible without engaging the exemptions, or with a different public interest conclusion. This is no doubt technically correct, as where the terms of a request are clear, as this was, the s45 FOIA Code of Practice does not require any assistance be provided to the applicant, and accordingly there can be no breach of s16. This illustrates a regrettable limitation of the s45 Code. By contrast, if the request had fallen to be considered under EIR, the equivalent code under Regulation 9, there may well have been a breach as that code requires an authority to “be flexible in offering advice and assistance most appropriate to the circumstances of the applicant” and that can include advice on a more limited disclosure if the actual information requested is exempt. The aim is to help applicants make good use of the Regulations, not as in FOI to ensure accurate but unhelpful refusals.

It was also an interesting example of an FOI refusal being upheld when it was, for the most part accepted that the information was effectively in the public domain, because the cameras were not covert, and the locations could be tracked down easily if sufficient resources were devoted to the exercise.

I wonder if the cameras are sufficiently distinctive to enable a smart programmer to search for them by interrogating google streetview …

Tax evidence that shocked Osborne

2012-06-14T08:54:30+00:00

The Treasury has released a copy of the illustrative examples which left George Osborne "shocked" about wealthy tax avoidance and led him to introduce his since-abandoned plans to cap tax relief on charitable donations.

In April the chancellor told the Daily Telegraph that he was "shocked to see that some of the very wealthiest people in the country have organised their tax affairs... so that they were regularly paying virtually no income tax."

He explained that he was talking about people with multi-million pound annual incomes and added: "I'm not allowed to be shown the names of the individuals but I've sat with the most senior people at the Inland Revenue, the people who run some of the high net worth units there. They have given me examples, anonymised examples, and so we are taking action."

Mr Osborne was justifying his controversial plan in the Budget in March to limit all tax reliefs, including for charitable donations, to an annual maximum of £50,000 or 25% of an individual's income, whichever was greater.

Following a freedom of information request from the BBC for a copy of the "anonymised examples" shown to the chancellor, the Treasury has now disclosed one sheet setting out three "illustrative" cases provided to him.

This shows:

It is not completely clear on what basis these cases were derived. The Treasury describes them as "stylised examples based on an analysis of the tax records of those individuals most affected by the change" and "not actual taxpayers' details". HM Revenue and Customs is legally prohibited from revealing the tax details of an identifiable individual.

Of course Mr Osborne may have been given further evidence in meetings of the tax avoidance problem he was seeking to tackle, but this is the only written documentation that the Treasury was able to provide.

The proposed limit provoked outrage from many charities, and two weeks ago the chancellor announced he was dropping plans to cap tax relief for gifts to charity, although he plans to press ahead with the restriction on other tax reliefs next year.

However, what is clear from this disclosure is that it is indeed charitable donations rather than other allowable reliefs which was the focus of the Treasury's concern to extract more tax from some of the country's richest individuals.

Google claims engineers were unaware of Street View data breach

2012-06-13T14:33:01+00:00

Google releases written testimony from engineers saying they were not aware that Street View had been designed to capture private data, including full emails, medical listings and passwords

Google has published sworn declarations from nine engineers, as the company tries to answer claims it orchestrated a cover-up of its collection of personal data from millions of internet users.

Nine engineers involved in the controversial Street View project said they were unaware it had been designed to capture private data, including full emails, medical listings and passwords.

Google published the written testimony late on Tuesday, hours after the UK information commissioner launched a fresh investigation into the data collection.

It is understood that Google publicly released the documents in response to a Freedom of Information request, not in response to the ICO investigation.

Eight of the nine Google engineers whose evidence has been published said they only became aware of the huge data capture in May 2010, when the search engine firm admitted it for the first time.

Google has been under pressure to explain the saga since April this year, when the US Federal Communications Commission (FCC) said that the technology was designed specifically to retrieve information from public Wi-Fi signals as Street View cars photographed peoples' homes.

The FCC said the collection did not breach US privacy laws, but that other Google engineers – including a senior manager – knew of its data-capture technology. Google has maintained that the data was mistakenly harvested and was never intended to be used.

A Google spokeswoman in the US admitted to the New York Times on Tuesday that there was a process breakdown in the project. She said the failure of multiple engineers to review the project was a mistake.

Google had not responded to the Guardian's request for comment at the time of publication.

The nine Google engineers produced their testimony in August last year as part of the FCC investigation into the company. But, crucially, the engineer who designed the software invoked US legal protection against self-incrimination and refused to talk to the FCC.

According to the sworn declarations published by Google, one of the unnamed engineers said he had no recollection of reviewing the Wi-Fi project design document and that it was not part of his duties to do so.

Another engineer said: "I only became aware that payload data had in fact been collected when various news outlets reported that the Street View vehicles were collecting Wi-Fi communications sent over unencrypted networks, and I frankly thought the reports were wrong."

The testimony will now be reviewed by the information commissioner's office (ICO) in the UK. The ICO sent Google a list of seven detailed questions on Monday as it seeks to get to the bottom of who knew what and when.

Google told the ICO in April 2010 that the data capture was a mistake. However, the ICO said in its letter to the internet firm this week: "During the course of our investigation we were specifically told by Google that it was a simple mistake and if the data was collected deliberately then it is clear that this is a different situation than was reported to us in April 2010."

The UK data watchdog said it appeared likely that some private information – including visits to dating or pornographic websites, medical listings and "legal infractions" – was scooped up by Google as it photographed homes across the UK.

Google has been cleared of breaching privacy laws with the Street View project in each of the countries that have concluded investigations into the affair.

The privacy regulator in Germany, which generally takes a strict view on such matters, has yet to report its findings.

Josh Halliday

Google to be investigated over data cover-up claims

2012-06-12T17:06:23+00:00

Information commissioner says it is likely highly private details were deliberately captured from internet users

Google is facing increasing pressure after the information commissioner launched an investigation into claims that it orchestrated a cover-up of its capture of emails, passwords and medical records of people in the UK.

The UK data watchdog has written to Google demanding answers after it emerged that the search engine firm knew its Street View cars could harvest personal information as they photographed homes across the globe.

The information commissioner's office said it was likely that highly private data – including email messages and browsing history – was secretly and deliberately captured from internet users in the UK. Google will now have to explain whether it misled regulators over the saga, which has hounded the company for more than two years.

The US technology giant told the ICO in April 2010 that the huge data capture was a mistake. However, a detailed investigation by a US regulator revealed earlier this year that a Google engineer told colleagues he had specifically designed the technology to capture the personal information.

On Tuesday the ICO formally opened a fresh investigation into the company. In a letter to Google, the ICO said: "During the course of our investigation we were specifically told by Google that it was a simple mistake and if the data was collected deliberately then it is clear that this is a different situation than was reported to us in April 2010."

Steve Eckersley, the ICO's head of enforcement, sent Google's senior vice president, Alan Eustace, a list of seven questions asking when it knew that the so-called "payload data" could be harvested from UK internet users. The letter also demands a "substantial explanation" of why Google did not indicate that this private data was collected in the UK when officials audited the company in July 2010.

A spokeswoman for Google said: "We're happy to answer the ICO's questions. We have always said that the project leaders did not want and did not use this payload data. Indeed, they never even looked at it."

Google faces a £500,000 fine if the ICO believes that its Street View cars breached data protection laws. The company could also face a police investigation if it is proved that it intentionally orchestrated unauthorised electronic eavesdropping.

The company sent its fleet of Street View cars to photograph homes in the UK in March 2009, three years after the engineer developed the technology that could capture private data.

It emerged only in April this year that the Google engineer behind the technology advised colleagues that internal privacy lawyers should specifically authorise its use. A report by the US Federal Communications Commission, which fined Google £15,000 over the affair, said that legal advice was never taken. The FCC said the collection did not breach US privacy laws.

The ICO launched its inquiry into Street View in 2010 after it admitted that it mistakenly collected some information. The watchdog concluded no personal data was collected, before later admitting it had.

Josh Halliday

Making money from FOI requests

2012-06-11T09:58:03+00:00

Recently I discussed freedom of information in Ireland and how the level of FOI applications there has been much lower since those requesting information had to pay an up-front fee for doing so.

While in this case there is something in common with the UK - in that some British public authorities would like the same policy to be adopted - often the most striking aspect of international comparison is the very wide discrepancies between the laws and attitudes that are accepted in different countries.

In the Netherlands, for example, people making FOI applications can sometimes end up being financially better off rather than worse off.

If a public authority fails to reply to an FOI request by the legal time limit, then it may be penalised by having to pay a fine for every day it is late, with the money involved going to the requester, at a rate of 30 euros a day up to a maximum of 1260 euros. I know one Dutch journalist who has received such a payment more than once.

The idea is that it should deter public authorities from excessive delays in dealing with FOI applications. If such a law existed in the UK then there are some public authorities who would have found it very expensive - and some frequent FOI requesters who would have found it a highly lucrative activity.

I'm not aware of anyone who is suggesting the introduction of such a scheme in the UK, even if the notion might be tempting to those of us who have had to put up with long delays. However, as with the Irish and British FOI laws, Dutch FOI legislation is also currently under review, and this provision may not stay in place.

While in some respects the UK's freedom of information system is far-reaching and transparent compared to many countries - for example, in the wide range of public bodies covered - there are other aspects where it is comparatively limited.

In Norway the process of applying for copies of documents under FOI is greatly facilitated by a government internet portal which lists state records. You don't have to be Norwegian to use it, and there is even a version in English.

You can easily browse and search for documents, select the ones you want for your order basket, and submit an application for them. It helps requesters who might otherwise not know what records are actually held by the public authority.

Earlier this year the Chancellor, George Osborne, said in an interview with the Daily Telegraph that he was happy to consider making the personal tax returns of senior ministers publicly available.

There's a big gap between considering something and implementing it. But there are countries in which summary tax data of all citizens, whether politicians or not, is publicly available.

And in Sweden there was a website at the large general election which included such data in its profiles of candidates, making it easy for electors to see the income of those they might vote for.

Could such information be found useful by the electorate in the UK?

A YouGov poll in the wake of Mr Osborne's remarks suggested that in fact there are many voters whose preference between candidates would be affected by knowing how rich they are - wealth and easy popularity do not always go together.

FOI request shows that minister told the truth!

2012-06-08T14:45:58+00:00

The saveFOI campaign has occasionally been critical of some of comments on Freedom of Information Act 2000 by ministers, past and present.

Never let it be said that we’re unfair though. A very interesting post on the excellent fullfact.org site follows up reports from the Morning Star last month which suggested – on the basis of emails disclosed in response to an FOI request – that Iain Duncan Smith had lied to the UK Statistics Authority. Fullfact have looked closer, however, and say that, in fact

…what Mr Duncan Smith had said was in fact accurate…While the emails unearthed by the FoI request do show that there was considerable discussion between DWP Ministers and statisticians on what was and wasn’t an acceptable method of releasing this information, the eventual arrangements conformed with the final advice from the DWP’s Head of Profession for Statistics.

Fullfact point out that this shows that there is ambiguity about statistical practice in government and the hard job that departmental statisticians have. As a result

…in future, Full Fact plans to use more Freedom of Information requests to help scrutinise the important “behind the scenes” role of the government statisticians.

FOI can hold ministers to account. It can expose their wrongdoing. It can also, it seems, exonerate them when they are accused of lying.

It’s in everyone’s interests to save FOI from being weakened following post-legislative scrutiny.

FOI fees under review in Ireland

2012-05-31T16:31:00+00:00

The House of Commons Justice Committee has been reviewing the Freedom of Information Act, and during this process it seems to have some taken some interest in what's been happening in Ireland, which a few years ago introduced an up-front fee for making FOI requests.

But while some UK politicians may be thinking of following suit, the Irish government could soon be heading back in the opposite direction.

The idea is favoured by those who think it would inhibit time-wasters posing trivial questions, but opposed by others who fear it would deter legitimate requesters, especially of course those with more limited resources.

However the Committee was given some confusing evidence on the longer-term impact of this measure in Ireland. It was told that the number of FOI requests, which dropped dramatically when this charge was introduced in 2003, has now risen back to the previous level.

But this is not correct. Its impact was clearly to deter many FOI requesters, and this deterrent effect has persisted, halving the number of applications from about 8,000 annually to about 4,000. The fee is 15 euros, with a lower rate for benefit claimants.

The recent position is clear from the latest annual report of Office of the Information Commissioner (OIC) in Ireland, which was released this week with the statistics for 2011.

The data are complicated by the fact that Ireland's FOI law - and the country's Information Commissioner - covers requests both for personal and non-personal information. However the up-front fee is only charged for applications for non-personal information and for mixed requests which involve both kinds - a point which is sometimes forgotten by those who simply examine the total number of requests.

I have extracted the figures for non-personal and mixed requests from the OIC annual reports, and this shows the following pattern:

1999

6,505

2000

7,347

2001

8,285

2002

8,346

2003

7,601

2004

3,460

2005

3,454

2006

3,583

2007

3,146

2008

4,443

2009

4,905

2010

4,561

2011

3,936

1999 was the first full year of freedom of information in Ireland. Up-front fees were introduced in July 2003. There are some caveats needed. This doesn't take account of changes in the range of public authorities covered by FOI, nor in the nature of the documents which can be sought. It's also possible that requesters might have responded to fees by grouping several requests into one - this behaviour was reported by some public authorities.

Ireland's FOI law is under review currently, just as the UK's one is. In its programme for government, the Fine Gael / Labour coalition formed last year promised to extend FOI and stated: "We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government."

It was the outgoing government led by Fianna Fail which brought in the up-front fee amongst other changes. The current Irish government is now considering internally how to put its pledge into practice.

In other words, if this promise is implemented, it seems possible that the Irish government may reverse the introduction of FOI fees just at the same time that some UK politicians are thinking of bringing them in.

What now for FOI (and saveFOI)?

2012-05-28T17:30:06+00:00

The Justice Committee has now heard its final evidence in the post-legislative scrutiny of the Freedom of Information Act 2000. Links to the uncorrected oral evidence can be found on our Resources page.

So what now?

It is understood that the Committee will prepare a report based on the written and oral evidence it has received. It will then be for Parliament to consider what proposed changes – if any – should be made to the FOI Act. Clearly, before the Committee’s report is published, it would be premature to speculate too much, but that does not mean that saveFOI’s work is done, and we will continue to update the blog, and tweet, for as long as necessary.

In that spirit, we were hugely impressed last week with a further submission to the Committee, made by the Campaign for Freedom of Information, which corrects (in fact, effectively demolishes) some of the evidence previously given – particularly by Lord O’Donnell and Jack Straw.

It also lists forty-odd examples “of excessive or wasteful spending revealed by FOI which is generally not taken into account when assessing the Act’s ‘costs’”.

The Campaign for Freedom of Information, and its tireless director Maurice Frankel, were key promoters and cheerleaders for FOI in the years before enactment, and have continued to perform this role in the years since. It’s fitting, therefore, that this final piece of evidence (which we understand the Committee agreed to accept) comes from them, and is so very compelling.

saveFOI hope that – with the help of the Campaign for Freedom of Information’s submission, and many other submissions by supporters of FOI – the Committee’s report will not contain recommendations such as charging people to make an FOI request, or for changes that would mean that qualified exemptions become absolute ones. We recognise, however, that even if it does, the game is far from over: a select committee does not make or change the law – that is a matter for Parliament.

Lobbying and campaigning will continue until we are satisfied that FOI has been saved.

saveFOI’s letter to the Justice Committee

2012-05-15T17:49:58+00:00

On April 23 2012 the saveFOI campaign wrote to the Justice Committee, because of our concerns that the Committee had not received oral evidence from all relevant witnesses during its post-legislative scrutiny of the Freedom of Information Act 2000. While we acknowledge the thoroughness of the Committee’s work so far, it is to our regret – and, we feel, arguably to the detriment of the post-legislative process – that the Committee do not appear to have accepted our suggestions: we understand that tomorrow’s session will be the last, and the response we received was limited to informing us of the types of witness at that session, and at the penultimate one.

This was our letter

Sir Alan Beith MP
Chairman, Justice Select Committee
House of Commons
London SW1A 0AA
23 April 2012

Dear Sir Alan

Post-legislative scrutiny of the Freedom of Information Act

We are writing to congratulate you and your committee on the thoroughness of your review of the Freedom of Information Act to date. However, we are concerned that the committee has not yet heard from a number of groups and individuals who we feel have an invaluable insight into the operation of the Act.

We hope that the committee will give consideration to inviting some or all of the following to give oral evidence. This would ensure that the committee benefits from the experience of those with direct and practical experience of the Act’s implementation, and is able to reach its conclusions in the light of a well-balanced body of evidence.

Most public authorities employ officers with responsibility for compliance with the Freedom of Information Act. These individuals have a unique insight into how the Act works in practice. We would suggest inviting 2-3 officers, perhaps from different parts of the public sector, to give evidence. One of our co-founders, Mr Paul Gibbons, who provided written evidence to the committee and has worked as an FOI practitioner in three public sector organisations, would be willing to answer questions at an oral hearing if invited.

We were concerned at the negative picture of the Freedom of Information Act presented by Mr Jack Straw MP at the last oral hearing of the committee. There are other former ministers who have a more positive view of Freedom of Information than Mr Straw, and who could provide essential balance to his comments. We would suggest that the committee invite Lords Wills and Falconer, who have both exercised responsibility in government for FOI, to give their valuable insight into how FOI has affected the running of Government.

We thank you for considering our suggestions above, and would be pleased to answer any questions that the committee may have based on our combined experience as FOI Officers, public officials and experts in this area of the law. We wish the committee well in reaching its conclusions on the state of freedom of information in 2012.

Yours sincerely
Jonathan Baines, Paul Gibbons, Ibrahim Hasan, and Tim Turner of the Save FOI Campaign

Last Two Evidence Sessions of Justice Committee Announced

2012-05-13T17:11:22+00:00

The sixth and seventh (and last) evidence sessions of the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000 have been announced. They will take place on Tuesday 15th and Wednesday 16th May, and evidence will be heard from the following (with hyperlinks to their written evidence submissions where available):

15th May

At 10.30:

Roger Gough, Cabinet Member for Business Strategy and Support, Kent County Council;
Edward Hammond, Research and Information Manager, Centre for Public Scrutiny;
Tracy Phillips, Information Compliance Advisor (Solicitor), Lambeth Council; and
James Rogers, Assistant Chief Executive, Leeds City Council

At 11.30:

Glenn Preston, Deputy Director of Information and Devolution and
Pam Teare, Director of Communication and Information, Ministry of Justice;
Marion Furr, Director of Ministerial Business and Parliamentary Accountability, Department of Health;
Brendan Walsh, Head, Information Rights Team, Department for Environment, Food and Rural Affairs; and
Roger Smethurst, Deputy Director of Knowledge, Cabinet Office

16th May

At 9.30am:

Rt Hon Dominic Grieve QC MP, Attorney General

At 10.00am:

Rt Hon Lord McNally, Ministry of Justice; and
Rt Hon Frances Maude MP, Cabinet Office

The saveFOI campaign wrote to the Committee some weeks ago, suggesting that it should hear from serving FOI officers, and suggested our own Paul “FOI Man” Gibbons. This offer was not taken up, to our regret and – we think – to the detriment of the post-legislative scrutiny process.

Vodafone breaks contract secrecy

2012-03-26T09:19:23+00:00

The telecommunications company Vodafone is the only major government supplier which has agreed to the release of data about how much Whitehall has saved through renegotiation of contracts.

For the last financial year, the government and Vodafone agreed that the state could save £5.3m on its payments to the mobile phone company.

This was one of a number of renegotiations with large suppliers pursued by the coalition after it came to power.

In October 2010 the Cabinet Office Minister Francis Maude told the Conservative party conference that the new government had saved "several hundred million pounds" in one year by modifying contracts with its biggest suppliers.

He said this was based on "dealing with them as a single customer instead of letting them play one part of government off against another".

But the Cabinet Office refused to provide a breakdown of this figure by supplier, in response to a freedom of information request from the BBC.

It did provide a departmental breakdown, which showed that the Ministry of Defence and the Department for Work and Pensions accounted for over half the total of the overall government savings target of £671m.

The Cabinet Office argued that releasing company-by-company details of savings would damage relationships with suppliers and jeopardise negotiations with them.

The BBC appealed to the Information Commissioner, who last month upheld the government's refusal, except where suppliers themselves consented to the release of the figures.

The only company to agree was Vodafone.

"We believe in being as transparent as possible in our dealings with the Government," said a Vodafone UK spokesperson.

The company denies that the savings agreed indicate that government departments were previously being overcharged.

"Our dealings with central government are now far more about helping government find a better way of working," the spokesperson said.

"We strongly believe that using our technology and expertise will save many hundreds of millions of pounds in areas such as property, energy and fixed-line communications. We are prepared to make an investment in providing services to the public sector to help the government secure the much bigger gains that can be made by working smarter."

Vodafone's financial relations with government have recently been highly controversial because of the company's tax affairs - and the sums involved in this dispute are much greater than the £5m savings - but in the context of these contract renegotiations, Vodafone has been more willing to be transparent than any other large Whitehall supplier.

It illustrates how private companies that do business with the state will increasingly have to face up to questions of openness and freedom of information.

The willingness of public sector suppliers to accept greater scrutiny of their contracts is going to grow in importance as an issue, in line with the pressure for transparency in value for money in public spending.

The Cabinet Office has got in touch to say that since the Information Commissioner's decision, another government supplier has agreed to the release of details of savings - the IT services group Capgemini. In its case, the savings agreed through contract renegotiation total more than £200m, although this figure is over several years until 2017.

The savings agreed with another supplier are expected to be announced later this week. This new policy of disclosing such savings represents a change in approach from the Cabinet Office since the commissioner's ruling.

The Cabinet Office argued that the BBC's FOI request should be rejected even when the companies themselves were happy for the information to be released, because by a process of elimination it could lead to other companies who were not so willing being identified. Now the government does seem keen to publicise some of the company-by-company savings it has agreed.

Hillsborough: The Thatcher papers

2012-03-15T13:01:38+00:00

Cabinet Office papers from 1989 seen by the BBC show how Margaret Thatcher's government was misinformed about the cause of the Hillsborough disaster - and illustrate why the Information Commissioner demanded the disclosure of these secret documents.

Last July the commissioner ruled that it was in the public interest for documents about the Hillsborough tragedy to be released, since it would "add to the public knowledge and understanding about the reaction of various parties to that event, including the government of the day".

This followed a freedom of information request from the BBC that had been rejected by the Cabinet Office. That FOI case was dropped after a government pledge to publish its files on Hillsborough via an independent panel later this year.

The BBC has seen now some of this material and on Thursday is reporting details from these documents.

Due to these disclosures, we now know that a few days after the tragedy in April 1989 Margaret Thatcher was informed about the views of senior officers from Merseyside Police. She was told that one of them blamed drunken Liverpool supporters for the terrible incident which led to the deaths of 96 of the club's fans as a result of horrific overcrowding.

The briefing she received also reported the assessment of the then Merseyside Chief Constable Sir Kenneth Oxford. He thought that a key factor was the presence of Liverpool fans without tickets and this was being ignored while the authorities were being blamed.

Sir Kenneth was a controversial chief constable who had often clashed with local politicians over his tough policing strategy, and was at this point close to retirement.

We already knew that private briefings accusing the Liverpool fans had been coming from South Yorkshire Police - this was the force responsible for the Hillsborough ground in Sheffield. It was later criticised for the poor crowd control that had actually been the main factor in causing the loss of life.

What the papers show

Lady Thatcher's then press secretary Sir Bernard Ingham has already revealed that when he accompanied her on a visit to the stadium the day after the tragedy, they were told the incident was the fault of a "tanked-up mob" of Liverpool supporters.

What we now know is that a similar message was coming to her, not only from the force which had made catastrophic errors in policing the FA Cup semi-final, but also from the top ranks of the police force covering the locality of most of the victims - the bereaved families and the anguished survivors.

Of course this document only reveals what was said in the period soon afterwards, and those involved may have changed their minds as further evidence came to light.

But it is interesting to note that the position of the senior Merseyside officers conflicted with that taken at the same time by some junior ranks in the same force.

In newspaper reports at the time, the Merseyside Police Federation was quoted as saying that the accusations against Liverpool fans were "ill-informed comments" which were "based on hearsay rather than evidence". The local federation secretary said that his phone had been "red hot" with calls from Merseyside officers demanding he speak out to "redress the balance".

In due course it was the view of the federation, rather than the chief constable, which was found to be correct by the official inquiry into the disaster by Lord Justice Taylor. He attributed the main cause of the incident to police failures in crowd control that led to a fatal crush in the Liverpool fans' section of the ground.

The BBC's report today also contains another interesting revelation: that there was unease within the government about what a senior Downing Street official considered to be Lord Taylor's "distinctly unhelpful" response to an approach to align his inquiry schedule with the government's political timetable.

In the wake of Hillsborough, Margaret Thatcher's policy priority was to press ahead with introducing a compulsory identity card scheme for football supporters. The government had already been planning this to tackle the hooliganism that badly affected the game in the 1980s (although the idea was never eventually implemented).

The Home Secretary Douglas Hurd met Lord Justice Taylor soon after the judge was appointed to carry out the inquiry. Lord Hurd tried to persuade him to consider the membership scheme in time to fit in with the government's schedule for pushing forward with it. The judge couldn't guarantee this, insisting his timings would be determined by the process of establishing the facts of what happened.

The current government has promised that official records relating to the disaster will be released through the Hillsborough Independent Panel. This was set up in December 2009 by Labour to work towards publishing these files, although cabinet papers were initially excluded from its terms of reference.

The panel has said it will complete its work by the end of June, although there are reports today that this deadline will be postponed. It is expected to release a very large quantity of documentation. The papers being covered today by the BBC are only a small proportion of the undisclosed material.

Today's revelations do not constitute a "smoking gun" or lend support to any kind of conspiracy theory, but they have added valuably to the state of public knowledge about the political reaction to the terrible events at Hillsborough in April 1989.

In brief, we have learnt that the top ranks of Merseyside Police helped to misinform Margaret Thatcher by wrongly blaming Liverpool fans. And we have learnt that there was dissatisfaction within the government at Lord Justice Taylor's refusal to adapt his inquiry to their political timetable for pressing ahead with an identity card scheme for football fans.

Cameron gives FOI dividing line

2012-03-07T14:25:48+00:00

Real freedom of information is about "the money that goes in, the results that come out", as opposed to "FOI requests that are all about processes".

That's the view of David Cameron, which he expressed yesterday at the end of his evidence session in front of a House of Commons committee.

He distinguished between the increased transparency that derives from the publication of data (such as crime maps, local government spending and public sector contracts), which he is enthusiastic about, and what he called "the endless discovery process" of responding to FOI requests, which clearly doesn't appeal to him quite so much.

Perhaps this opinion is not surprising, given that the government has this week been fighting a tribunal case to avoid being forced to release its risk register for the current NHS legislation. The top civil servant at the Department of Health told the tribunal that publishing the register could lead to similar documents being toned down in future.

It's not the first indication that Prime Minister Cameron is becoming "the heir to Blair" in his attitude to freedom of information. We've already had reports of remarks in which he's said that due to FOI, "officials and ministers are increasingly reluctant to put on paper what they actually think".

Some advocates of openness will undoubtedly see Mr Cameron's distinction as really a dividing line between what the government wants to tell you and what you want to know, but it does raise a fundamental question about the purpose of greater state transparency. Is it about greater accountability in the delivery of public services, or it is about opening up the decision-making process?

I was one of a number of journalists who gave oral evidence last week to the Commons Justice Committee, which is currently conducting an inquiry into the workings of FOI (so far only the uncorrected transcript is available). We were asked why the law had not had more impact on the quality of public debate.

My answer was that while FOI has made it much easier to obtain facts and figures about the performance of public services, it has had nothing like the same reach into the policy-making process and internal discussions. This is the area where ministers and officials have much deeper concerns about the impact of disclosure and requests have met greater resistance.

Mr Cameron's stance can be seen as an illustration of what one international academic authority on FOI, Professor Al Roberts, has called "executive pushback" - attempts by political leaders to counter or undermine FOI laws.

The starkest example of this has been in Ireland, where the government introduced up-front fees for making freedom of information requests. In the US successive presidents have fought battles over the scope of FOI. And in India currently there are efforts to constrain the extent of the right to information law which has featured in numerous controversial disputes between citizens and officials.

On the other hand, another expert David Banisar argues that many countries with FOI laws have not experienced the same kind of political backlash.

The Commons Justice Committee is continuing with its inquiry, and the outcome should influence where the future of FOI in the UK will lie.

Delay for answer on private email

2012-02-09T11:04:52+00:00

The Department for Education is more than three months late in responding to a BBC freedom of information request about internal government guidance on the use of personal email accounts.

This is a controversial topic given recent allegations about ministers and political advisers using private email to seek to avoid FOI. These claims are currently under investigation by the Information Commissioner.

The department has apologised for missing the legal deadline by so long, stating that the delay is because the DfE "is experiencing a higher than usual volume of FOI requests".

Under the Freedom of Information Act, this is not a valid reason for failing to meet the law's time limits, and it is unusual for a government department well aware of this to respond in this way.

The DfE's information rights adviser Andrew Partridge has told the BBC in an email:

"I very much regret the delay that you are experiencing in relation to your FOI request which we received on 3 October and which should have been answered by 31 October.

"At the moment the Department is experiencing a higher than usual volume of FOI requests, and this is leading to delay in some cases. But I fully accept that the Department has failed to meet the statutory deadline in this case. I can only apologise for the delay, and assure you, as the officer responsible for preparing the reply to your request that I am working to take it forward as quickly as possible."

In October the BBC asked the department for any guidance it held about the use of personal email accounts in relation to freedom of information.

This followed reports that the Education Secretary Michael Gove and his advisers had used their private email rather than departmental systems for some sensitive messages on the basis that this would fall outside the FOI Act.

Last week Mr Gove insisted to the House of Commons Education Select Committee that he has followed Cabinet Office advice that "anything that was held on private email accounts was not subject to freedom of information requests".

However this stance conflicts with the policy of the information commissioner Chris Graham, who in December made clear his view that personal email accounts are not excluded from freedom of information searches when they have been used for official business.

The Information Commissioner's Office is still considering a number of complaints, including from the Financial Times, about the Education Department's apparent failure when responding to FOI requests to supply relevant emails sent from personal accounts.

The position adopted by Mr Gove and the Cabinet Office also contrasts starkly with an earlier assessment made by the DfE's own information rights adviser, Mr Partridge (the author of the recent reply to the BBC).

It has been reported that last year Mr Partridge told the department's permanent secretary that the requesters' right of access to material under FOI was not limited to the contents of the departmental email system if "information held in personal accounts may relate to the business of the department".

Mr Gove made it clear to the MPs on the education select committee that he preferred to abide by the advice the DfE had then obtained from the Cabinet Office rather than that from his own departmental FOI official.

The BBC also asked the Cabinet Office in October for a copy of any guidance it held on the subject of personal email accounts and FOI. The Cabinet Office replied last month stating that it does not hold any such information.

Is this compatible with the fact that it has clearly offered advice on this topic to the Department for Education? Possibly, if for some reason the advice was kept purely oral and not committed to writing. The BBC is asking the Cabinet Office to review its FOI response.

When the Labour MP and education select committee member Lisa Nandy put down a parliamentary question a few days ago asking for a copy of the advice, she got the reply that "information relating to internal discussion and advice is not normally disclosed".

Mr Gove says he is now waiting for the Cabinet Office to provide updated guidance. The Financial Times is waiting for the information commissioner to rule on its complaints. The BBC is waiting for the Department for Education to answer our FOI request.

When all this happens, the development of the government's policy on whether ministers and officials can use private email to protect messages they want to keep secret may become clearer. Meanwhile, the wait continues.

Information

Egypt clamps down on well-known opposition figures

Bassem Youssef’s supporters protest as Egyptian satirist is detained - video

Egypt's top prosecutor orders arrest of hit TV satirist

Counterfeit electrical goods seized increases sixfold, FOI reveals

Edinburgh Council ruled to have breached freedom of information

Obama welcomes African leaders’ OGP plans

Kraftwerk denied China visa over 1999 Free Tibet concert

Banned bands

Court upholds newspapers' right to name councillor drunk with infant

South-South Initiative to establish Access to Justice and Green Tribunal in Madagascar

FOI round-up week ending 29th March

Confidential discussions continue

Government and private firm to run shared services together

Webinar on Citizen Engagement on Law Making

Section 12 and Records Management

Food stamps and the database state…

Shelved redevelopment plan for Fleet town centre cost £100,000 FOI reveals

Press freedom: a tug of war, not the end of 300 years of liberty | Michael White

You wait ages for an official report about the ICO’s data protection audit powers

'NHS 111 causes chaos for desperate patients'

Index calls on Bahrain government to free Nabeel Rajab

FOI reveals effect of independent sector on Kent grammar schools

Government is warned not to exclude offline people

Health regulator says NHS services should be subject to ‘freedom of information requirements’ on a ‘consistent basis’.

'Paedophile watch' Facebook group harmful, warn police

Rachel Robinson: ORGCon North

Private NHS Providers and FOI

Lords mistaken in their calls for Ofcom Internet regulation

'Police need social media intelligence hub'

British spooks team up with private firms to fight 'industrial scale' cyber threats

The social media shaped hole in surveillance law

11KBW Information Law Conference, 18th April 2013

Local Government likely to follow NHS down the mandatory data protection audit road

Drop the Dangerous Blogs Bill: leave blogs out of the Crime and Courts Bill

Don’t blame Leveson…

Belarus: Media literacy vs propaganda

Police to get cyber-bullying expertise

Scots hand in more than £150,000 of lost cash to police, FOI reveals

FOI reveals Richmond Council’s £286k mobile phone bill

BBC suspends Sri Lankan broadcasts

A FOI practitioner's view of DPA/privacy

FOI reveals Welsh council spends £640k on one school’s asbestos ‘crisis’

Will bloggers be protected? Maybe – if your blog is “small”

EU wants to cut 60bn off broadband costs

FOI reveals police called to Doncaster hospital 16 times a week

Doing BCS (ISEB) Courses? Top Tips from a Successful Candidate

Can the Lords salvage something from the Justice and Security Bill?

NHS 111 'putting patient safety at risk'

Global view

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

Press regulation rules may exclude small-scale bloggers

Around the world in 80 links: News from the parliamentary monitoring community

A small scale catastrophe?

Should religious or cultural sensibilities ever limit free expression?

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

UK police want Skype users' data

Jamie Bartlett: ORGCon North 2013

The Justice Committee and the Information Commissioner

Washington Post accused of censorship

Privacy groups urge Baroness Ludford to support stronger data rights

GCHQ launches multi-million pound cyber institute

Free speech takes a beating in Greece

Censoring the news

Ignoring the truth

Muzzling grassroots dissent

Online censorship

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

The Snoopers’ Charter: we need a new consultation

Omani sultan pardons jailed bloggers

Abbas government denied Palestinian journalists access to Obama visit

Yes, hacking was a disgrace - so why did most newspapers ignore it?

Police Scotland and Freedom of Information

DH Lawrence's poetry 'ruined by censorship'

This pizza-box press regulation is a sticky mess

Regulating the UK media sends the wrong signal to Africa | Erick Kabendera and Haruna Kanaabi

Press regulation: instead of sensible reform, we now have a sloppy mess

Brian Cathcart: a traitor to journalism – or voice of reason?

The beast of fanaticism

The latest issue of Index’s magazine is Fallout: free speech and the economic crisis. Click here for subscription options and more.

EU wants to cut 60bn off broadband costs

Thursday 21 March, 6.30pm
Inner Temple, London EC4Y 7HL