We’ve previously written about how best to proceed when an FOI request has been refused, but when there isn’t a response at all that’s a slightly different problem. However, up until now, we’ve treated both in the same way. We’ve now made some changes to reflect the difference.
If you do receive a response, but feel it’s inadequate or that your request has been wrongly refused, there are two ways of contesting the outcome. The first is to ask for an internal review, where the request is reassessed inside the same authority (by a different team or person). The second is to appeal to the Information Commissioner’s Office (ICO).
To reflect this, our approach when providing prompts to WhatDoTheyKnow users has been an escalation ladder — suggesting people request an internal review, and then appeal to the ICO if still dissatisfied. However, as we learned when talking to the ICO earlier in the year, that this isn’t always the fastest route to getting a response.
An internal review is useful when disagreeing with a decision, but when the issue is that the statutory deadline for a response has passed, and follow-up messages haven’t been answered — a situation our colleagues at Access Info aptly refer to as ‘administrative silence’ — it can be better to complain directly to the ICO.
According to the statutory code of practice, a public body may take up to 20 working days to undertake a review, and so this route is likely to result in further delay, whereas an intervention by the ICO may have a faster result.
So when a request is overdue, our email prompt will no longer suggest that users might want to seek an internal review, but instead we suggest sending a follow-up message to the authority and note that they can appeal directly to the ICO.
However, if you have an issue with the actual decision of a request (for instance, disputing an exemption applied), internal review is the correct first port of call — and in a surprising amount of cases can be very successful. While we don’t have figures covering all kinds of authorities, for requests made to central government, 22% of internal reviews resulted in some change to the original decision (and 9% were completely overturned) and for local government this figure is between 36-49%.
Both internal reviews and appeals to the ICO can be effective methods at redressing disputes around Freedom of Information requests, but it is important to consider which is the right tool for the situation.
Image: Ümit Bulut
Camilla Graham Wood is a Legal Officer at Privacy International, an organisation advocating and litigating for stronger protections of citizens’ privacy, dignity, and freedom.
At AlaveteliCon, Camilla presented on PI’s ‘Neighbourhood Watched’ campaign against the deployment of new technologies by police forces in the UK, many of which are unknown to the general public — and unrestricted by current regulation.
These include facial recognition, hacking, mobile phone extractions, and predictive policing: all examples of the police harnessing new technology with the aim of becoming more efficient — but where PI see great risks for the loss of liberties and for mistakes to be made. Freedom Of Information has been a crucial tool in their efforts to uncover the facts.
An initial tip-off
We asked Camilla how the organisation had first become aware of these technologies.
“It’s hard to find out about technologies if the state doesn’t want you to know about them.”
“We were contacted by investigative news co-operative Bristol Cable, who had looked into police accounting records and seen reference to Cellebrite, an international company well known for selling mobile phone extraction technology”.
Mobile extraction allows the police to download all content and data from a phone. At AlaveteliCon, Camilla explained, “They fit a device, about the size of an iPad, to your phone and it will copy across everything on there. This was rolled out, without any announcement, around the London Olympics.
“Obviously you might have concerns around police accessing the material that’s on your phone at that time, but there are also ongoing implications — for example if you don’t change your password afterwards, they then have access to all your various accounts on an ongoing basis — they can access your email, social media etc.
“So we decided to take Bristol Cable’s investigation further, and that led to the use of FOI to uncover the extent that this technology was being used, particularly for low level crimes.
“We anticipated this would show whether it was being used on a wide scale by frontline police officers. And it is”.
Neither confirm nor deny
“New surveillance technologies are radically transforming the ability of police and intelligence agencies to monitor our civic spaces.”
That may sound like a simple result: put in some FOI requests, get the information back. In reality, though, it has not been quite so easy. “The state often does not want to say when they’re using specific technologies, so they will use the ‘neither confirm nor deny’ response. It’s hard to find out about technologies if the state doesn’t want you to know about them.
“We sent FOI requests to all 43 police forces in the UK in January 2017 to find out which were using this technology in relation to low level crimes. We then sent follow-up requests later in the year. A large number of the forces responded that this second request was vexatious, largely because we had already asked questions about other forms of surveillance such as predictive policing, facial recognition and social media monitoring. They said that because we had already asked about what new technologies they were using, our FOI request on mobile phone extraction was vexatious.
“This meant that we had to request individually to each force to conduct an internal review, then subsequently a review by the Information Commissioners Office. But we were, at least, successful in this challenge”.
Camilla explains that although PI eventually received these responses, a number of them had had to restrict the amount of information provided due to time and cost limits. That in itself revealed something pretty telling — an inability to audit the use of mobile phone extraction. “It appears that the data is held on individual files, so they could not tell us how many victims, witnesses and suspects had been subject to this technique”.
The work hasn’t all been adversarial though. At AlaveteliCon, Camilla explained how she had attended police conferences as a speaker. Though a little daunted, she found that she was warmly welcomed by officers who wanted to know more about how they could better answer FOI requests.
Facial recognition, body cameras and predictive policing
“PI is particularly concerned about technologies that police can, and sometimes do already use to monitor people who have not committed nor are suspected of any crime.”
What are the other devices and methods in use that the public may not be fully aware of? Camilla highlights body cameras which can be switched on or off by the police officer wearing them, and the footage from which can be used in tandem with facial recognition.
Then there are IMSI catchers, which imitate a mobile phone mast and are able to monitor your location and activity. Also of concern are predictive policing methods, which raise all kinds of issues around biases that are baked in to the system — Beryl Lipton from Muckrock in the US is also doing work around this, and we’ll be writing about that in a further post soon.
Should we be worried?
Reading about such technologies, one might dismiss any concerns — after all, police have a job to do, and it’s natural that they should be using the latest advances in tech to do so. Camilla spells out why we should apply a little more judgement:
“FOI is one of many options we’ve used to discover information about what the government is doing, often in secret. It can be one of the few means to find out that information.”
“New surveillance technologies are radically transforming the ability of police and intelligence agencies to monitor our civic spaces and collect, categorise, store, analyse, and share our personal data. These authorities are expanding the depth and breadth of their surveillance of our civic spaces (by that I mean real life spaces like public streets, parks and squares, as well as digital spheres including the internet, messaging apps, and social media platforms), often without sufficient legal basis or democratic input and oversight.
“While new technologies may be deployed under the guise of protecting democratic society, without adequate regulations and safeguards those technologies can threaten democratic participation and dissent — and thereby undermine democracy itself.
“PI is particularly concerned about technologies that police and intelligence agencies can, and sometimes do already use to monitor people who have not committed nor are suspected of any crime”.
Freedom of Information is the key to transparency
“People have a right to transparency around the technologies that are being used; they have a right to question whether there is any justification for the deployment of these tools”
So, time to deploy our right to information, something that every UK citizen enjoys. How useful has FOI been to the campaign?
“FOI is one of many options we’ve used to discover information about what the government is doing, often in secret.
“It can be one of the few means to find out that information. As far as I am aware, there was nothing published on the use of mobile phone extraction by the police. The public were unaware the scale that this was being used.
“As a result of our FOI activity, this has been brought into the open”.
Taking it further
But PI’s activity and the wider repercussions of the campaign don’t stop there. “Based on these findings, we published a report.
“We’ve also written to the Investigatory Powers Commissioner stating that we believe the use of this technology may constitute hacking or interception.
“We have complained to the Information Commissioner that the tech is in breach of the old and new data protection act — that complaint is still under investigation. We’ve also given evidence to the Law Commission in relation to their consultation on the use of search powers; an investigation was commenced by the Scottish Parliament into the use of this technology by Police Scotland; and we’ve trained lawyers to raise awareness about this technology.
“Our work has even informed the debates around the use of this technology against rape survivors and we have raised concerns about the relevant issues to digital forensics”.
You can get involved
Now PI hope to get the general public mobilised in protesting these affronts to our privacy. “We hope to see people challenge their local police force on the use of these technologies. As we approach the local elections next year and in particular the election of Police and Crime Commissioners, we would encourage individuals to use the materials in our Neighbourhood Watched campaign and write to their local representatives to ask what new technologies are being used against local residents.
“People have a right to transparency around the technologies that are being used; they have a right to question whether there is any justification for the deployment of these tools and to ask what safeguards and protections are in place to protect against misuse and abuse”.
PI are now keen to replicate the Neighbourhood Watched campaign in other countries, to help create more transparency and accountability around these technologies.
Finally we asked Camilla whether she had advice for those involved in sometimes difficult investigations such as this. She had just three words: “Persistence is key”.
Image: Phil Hearing
Vouliwatch is a platform for Greece which strives to make democracy more accessible for all. If you’re familiar with mySociety’s projects, it might be easiest to see it as a mixture of TheyWorkForYou (it publishes MPs’ votes); WriteToThem (making it simple for citizens to contact their representatives), and a campaign for more transparency and better oversight in the country’s parliament, often using Freedom of Information toward these aims.
This year, Vouliwatch found themselves in the extraordinary position of issuing a lawsuit to their own parliament. Their Managing Director Stefanos Loukopoulos explained how it all happened, in his presentation at AlaveteliCon.
He left us with quite the cliffhanger — would the case go to court or not? — so we were keen to catch up and find out how it had all resolved. But to begin with, here’s what he told us back in October:
“In Greece, there’s an independent committee known as the “Committee of Control”: it’s made up of judiciary, ombudsmen, and three MPs sit on it as well.
“Its role is to audit and check asset declaration and the finances of MPs, as well as the financial activities of political parties.”
As you’re probably aware, over the last eight years Greece has been in the grips of a massive financial crisis, losing more than 25% of its GDP. Stefanos says, “It’s a situation unknown anywhere else in history.
“The two parties who were in power during the period that led up to the crisis owe, between them, over 350 million Euros to the banks, the majority of which is unserviceable.”
So, that’s the background. And now to the nitty gritty of the case.
“Every year the Committee of Control put out a report. For the last three years it has said exactly the same thing: ‘Some political parties’ have taken public funding which was supposed to be for research, and used it for operational purposes. However, the report doesn’t go into detail of which political party, or how much money.
We were accused of trying to destabilise democracy. We think that actually, democracy is more harmed by hiding this information!
“The Committee has the power to impose sanctions, and the law is quite clear on this point: if funds are not being used for what they should be, or are stated to be used for, then they need to be returned… but year after year, these powers weren’t used and nothing was done about it.
“We believe people have the right to know what’s happened to this public money. We sent letters, but in return we were just accused of trying to destabilise democracy. We think that actually, democracy is more harmed by hiding this information!”
“After two years, we finally submitted a formal FOI request. We didn’t expect an answer (and we didn’t get one) but at least we were covered by FOI law, so we knew exactly what information we should have been entitled to. After consulting with a law specialist we decided to take Parliament to the constitutional court. This is the first time anything like this has ever happened.”
And so that was how Vouliwatch ended up issuing a lawsuit to their own parliament. The day Stefanos was telling this tale at AlaveteliCon, things had started to move. He said:
“The legal team at Parliament have suggested just today that the information we asked for has actually been released, but I haven’t received it yet. I’ll keep you updated. I’d love to take them to court really, it would create a far bigger buzz and perhaps open more people’s eyes to what FOI is and how it can work to expose malpractice.”
So, of course, when catching up with Stefanos a few weeks later, we were keen to know: was the information released, or did they get to go to court?
“In brief, yes, the information was released, so there was no court appearance after all.”
But the effort was still worthwhile on many fronts. The information was, Stefanos says, shocking:
If it wasn’t for our FOI request and our appeal to the Constitutional Court, no-one would have ever heard about it.
“The current ruling party Νέα Δημοκρατία (New Democracy) — which, by the way, owes give or take 142,100,000 Euros to the Greek banks (and it should not be forgotten that the banks have been practically recapitalised by the taxpayer on a number of occasions during the crisis) — has been using the state subsidy intended solely for educational and research purposes to repay its loans, for at least two consecutive years. This amounts to about a million Euros.
“The Committee of Control had actually detected this malpractice, but did not impose any sanctions — and worse, actually tried to conceal the story. If it wasn’t for our FOI request and our appeal to the Constitutional Court, no-one would have ever heard about it.”
There’s more detail on the whole tale on the Athens Live site. But getting the story out to the wider population has been a struggle, says Stefanos:
“Unfortunately the media landscape in Greece is very problematic, to say the least. All the big mainstream media groups belong to a handful of oligarchs (shipping tycoons, mainly) who have historically had close ties to the traditional political parties, New Democracy and PASOK.
“So, unsurprisingly perhaps, our story was covered only by independent media or left leaning newspapers and was totally ignored by all the big media groups.”
Of course it’s daunting to take your own Parliament to court. But the prospect of facing a court case is also exciting at the same time.
But there have been some visible results from Vouliwatch’s hard work.
“The new president of the committee publicly pledged that they would be stricter during the next auditing process.
“So that’s a positive outcome, but I must say that he didn’t mention anything about adding more details in the next report (which should be published by the end of the month so we are really looking forward to seeing what it will look like).
“Meanwhile, we got in touch with the parliamentary groups of various parties (except for New Democracy of course) asking them to table a parliamentary question on the issue. The only one that took it up was Μερα25 (Mera25), which is the Greek branch if you like of the Democracy in Europe Movement Diem25, and is led by Yanis Varoufakis. The (oral) question was posed in Parliament during its plenary session and the shadow minister of the interior tried to justify New Democracy’s actions by using legally unfounded arguments.
“We countered/deconstructed these in a reply and published it out — and Μερα25 is going to use it in their comeback question.”
And as for Vouliwatch’s day in court? It’s not entirely off the table, though now to the Committee of Control rather than Parliament as a whole: “Currently we’re drafting a lawsuit against the committee for breach of duty and will submit it to the relevant attorney general.”
This sort of work matters in Greece, and not only to uncover malpractice. Even if it’s hard to get mainstream media coverage, it all helps to highlight people’s right to information and how FOI can be used. But Stefanos says it’s not easy:
Our case proves that FOI does have a strong role to play in the fight against corruption/lack of transparency
“FOI in Greece is, unfortunately, virtually non existent. Despite the decent legal framework around it, citizens and journalists alike are unaware of their rights and how to exercise them — and the state (as well as public authorities/institutions in general) have failed to communicate it or make it easy for the public to use.
“I think our case proves that FOI does have a strong role to play in the fight against corruption/lack of transparency in Greece; however, one may be easily dissuaded and disappointed because in most cases one needs to resort to litigation in order to get a response.
“In other words, we took the case this far because it’s part of our work as an organisation. I doubt that a citizen or journalist would follow the same strenuous course as we did, bearing in mind the costs of litigation, the time required, the legal research etc, etc.”
Is it daunting issuing a lawsuit to government?
“Yes, of course. But the prospect of facing a court case is also exciting at the same time. If we were ordered to pay out a large amount in reparations it would be close to catastrophic for our organisation. However, our case was legally airtight and the chances of losing it minimal, which is why Parliament decided to back off and release the information in the end.”
Bravo Vouliwatch — and we’ll be watching future happenings with great interest.
Stefanos Loukopoulos is the managing director of Vouliwatch and spoke at AlaveteliCon in October 2019.
FragDenStaat (“Ask The State”) is Germany’s FOI site, running since 2011.
Having always provided a platform for the general public to submit FOI requests, the organisation recently made the decision to focus more on the campaigning side of their activities. By using pre-filled FOI requests and encouraging their supporters to send them, FragDenStaat can harness the power of numbers.
As Project Leader Arne Semsrott explains: “We are trying to show the possibilities of FOI, using it together as a group or movement with a shared goal, not just as separate individuals”.
It’s an approach they used in a campaign to uncover the hygiene ratings of restaurants (which, unlike the UK, are not routinely published in Germany) — users were invited to file a pre-written request to the relevant authorities, and over 20,000 such requests were made, then the responses published. It’s hoped that doing so will bring about change — FragDenStaat say, “The platform will provide transparency until the authorities do it themselves”.
More recently, a similar campaign sought to reveal the facts behind the herbicide glyphosate (aka Roundup). It began when FragDenStaat requested a study from the German Federal Institute that stated that the weedkiller “probably” isn’t linked to cancer.
“We were told not to publish it”, said Arne. “So we published it”.
This mischievous approach is one of FragDenStaat’s defining qualities, but there’s always a serious point behind it. In this case: “We were told that we weren’t allowed to publish this report, but through FOI, we – and therefore anyone – is allowed to have it. It’s ridiculous.”
This is also an issue which we sometimes come across at WhatDoTheyKnow, where responses come complete with a generic footer prohibiting the publication of the information. Like FragDenStaat we think there’s a good argument against this. Freedom of Information law in the UK as well as in Germany is “applicant blind”, so anyone can request the same document and get a copy of it. That being so, it is more efficient to publish it online, and it saves taxpayers’ money since the authorities aren’t having to respond to multiple requests for the same information.
The German Federal Institute thought differently, however, and FragDenStaat were taken to court for copyright violation.
Officially, the report couldn’t be shared: what now? Arne continues the story: “So we built a one-click mechanism where anyone could make the same FOI request. Within two weeks, 45,000 people had requested it. The Institute had never had so many emails and didn’t know how to cope.
“We know this because we then requested the internal communications around how they were handling it. They developed an online solution with a log-in code to prevent people spreading the report further. We then developed some code to automatically log you in and download it.
“The legal proceedings are still pending but we would like to see a judgment by the Court of Justice on copyright vs FOI.
“If we lose the case it might mean that copyright gets used as a reason for denial in lots more requests. And if this happens, we need to make so much of a fuss that it becomes an unattractive proposition to do so. What we have achieved so far, though, is that we are pretty certain that most public authorities don’t want to confront us that way anymore.”
Since turning into more of a campaigning organisation, FragDenStaat are involved in more than 45 lawsuits. That might seem daunting to some small organisations, but Arne thinks differently:
“Over time we have learnt that one of the biggest tools we have to change the practice of FOI is strategic litigation. We have won most of our cases and are always keen to tackle legal questions that have not been addressed in German courts before. We have the feeling that the FragDenStaat community likes our approach and there are enough people who are willing to donate for our legal costs”.
FragDenStaat consistently bring an inventive angle to their campaigns, which sometimes borders on cheekiness. Asked about this, Arne replies: “To most people, files and documents appear to be the most boring thing on earth (which of course they aren’t!), so we feel that we need a bit of fun to attract people to the topic. And actually it’s way more fun for us that way.
“I do believe that our actions have forced authorities to take us seriously. There are of course people who are not fans of our work, but there are quite a few FragDenStaat supporters among authorities – even if they don’t show that publicly”.
Another campaign focuses on migration politics across Europe, and specifically Frontex, the border force. FragDenStaat have been working in collaboration with Luisa Izuzquiza at AccessInfo to file requests and build up a picture of human rights violations towards migrants: “You can file FOI requests for Frontex documents anywhere in Europe, so we’re asking in different countries for ‘serious incident’ reports: these will tell you of human rights violations”.
This campaign, too, has involved FragDenStaat filing a lawsuit, this time in the European Court of Justice in Luxembourg. The hope is that it will clarify the degree to which Frontex is open to public scrutiny. Again, the costs of litigation are borne by supporters who are encouraged to chip in with a small donation of a few Euros, ideally on an ongoing monthly basis.
Arne says, “EU migration politics is a topic that I have worked on for a long time now. I think that it’s heavily underreported, especially since Frontex has gained a lot of power and budget increase over the last few years. By talking to activists in the field, we learned what kind of documents might be produced by the agency on a regular basis and we began systematically requesting them”.
Shockingly, the reports released show that Frontex are well aware of such abuse but close their eyes to it.
“A report about Libyan refugee camp said it had ‘concentration camp-like conditions’ – and you can be sure that if a German person says that, it is serious. It proves they are aware of the conditions, even though they are doing nothing about them”.
There have been results to this campaign: the European Commission has now issued a statement saying that they would investigate the claims.
Arne Semsrott spoke at AlaveteliCon, mySociety’s conference on FOI and technology, in September 2019.
Arne is one of the folk behind FragDenStaat, which is the German equivalent of our own WhatDoTheyKnow. Unlike many of the FOI sites around the world, FragDenStaat is not run on the Alaveteli platform, but on bespoke software that was inspired by WhatDoTheyKnow in the days before our codebase was made easier to install.
Incidentally, if you are running a campaign, you can also use pre-written requests in tandem with Alaveteli sites, including WhatDoTheyKnow. Instructions are here.
Image: Jen Bramley
We’ve just come back from a heady couple of days in Oslo, where our AlaveteliCon event brought together those with a shared interest in the technology around Freedom of Information — in all, around 50 journalists, researchers, technologists and activists from 18 different countries.
As our Head of Development Louise announced in her opening words, AlaveteliCon has always been a slight misnomer, given that we’re keen to share knowledge not just with those who use Alaveteli, but with all the FOI platforms in our small but growing community — including MuckRock in the US and Frag Den Staat in Germany, both of whom were in attendance.
It was a timely event for us, as we embark on work to introduce our Alaveteli Pro functionality to newsrooms, researchers and campaigners across Europe, with an emphasis on encouraging cross-border collaboration in campaigns, research and journalistic investigations.
As well as picking up practical tips, we heard a variety of inspiring and instructive stories from FOI practitioners around the world; brainstormed ways forward in increasingly difficult political times; and shared knowledge on funding, publicity, site maintenance, and how to keep good relations with FOI officers.
Some of the most inspiring sessions came when delegates shared how they had used FOI in campaigns and investigations, from Vouliwatch’s Stefanos Loukopoulos explaining how they had taken their own government to court, to Beryl Lipton of MuckRock explaining why the government use of algorithms can have effects that are unforeseen, and indeed petrifying.
There was an affecting story from freelance journalist Mago Torres, who told us about a long campaign to map clandestine graves of those caught up in the war against drugs in Mexico; and from Camilla Graham Wood of Privacy International, on that organisation’s work to uncover some of the rather sinister but not widely known technologies being put into use by police services in the UK.
So much knowledge came out of these two days. We don’t want to lose it, so we’ll be making sure to update the conference page with photos, videos and the speakers’ slides as soon as they’re available. Meanwhile, you can follow the links from the agenda on that page to find the collaborative documents where we took notes for each session.
At the time of writing, a No Deal Brexit seems ever more likely. What exactly will that mean for the UK?
Attempts to answer this question have filled many column inches, hours of broadcast and endless tweets. There is certainly no lack of opinions.
But opinions are best based on facts, and it was in this spirit that WhatDoTheyKnow user Jon Rush set out to request vital information about the key Brexit sticking point, and the main reason that a deal is so hard to agree — the Irish border.
Brexit and the border
As Jon explains, “Brexit creates serious problems for the current arrangements between Northern Ireland and the Republic of Ireland under the Good Friday Agreement because they depend heavily on both the UK and RoI being in the EU”.
He wanted to gain access to the results of a mapping exercise, referred to in a joint report from the EU and UK negotiators but not available to the public at that time, which assessed the level to which co-operation between the North and the South depends on the EU frameworks currently in place.
Crucial information, you might think, for the general public who will be so affected at every level by whatever type of Brexit we enter into. Jon certainly thought so — but getting hold of it would set him on a long journey.
A hard-won result
Jon’s initial request, to the department for Exiting the EU (DEXEU) was in December 2017. You can follow its long and complicated journey on that page, thanks to Jon’s detailed annotations.
FOI is one of the few tools that individuals can use to hold government to account and it’s important to use it — otherwise government will never take transparency seriously.
Simultaneously he was requesting the same information via our partner AccessInfo’s site, AskTheEU.com, which covers EU authorities — and meanwhile, MPs in the UK’s Exiting the EU Select Committee requested the same information on numerous occasions throughout 2018, but were repeatedly rebuffed by government.
Pursuing his right to information would take Jon via the ICO, the European Ombudsman and to the brink of a tribunal, but in the end, the report was indeed released into the public domain.
What was revealed
What did it tell us?
“It contains a description of each area relevant to North-South cooperation under the Good Friday Agreement together with an assessment of how far it is underpinned by EU legal and policy frameworks.
“The focus in the media has tended to be on trade/customs arrangements, but if you go through the mapping exercise, you find that many other areas of cooperation are underpinned by the EU membership, including transport links, water, waste management, energy, Irish language broadcasting, mobile roaming, invasive species, disease control and cross-border police cooperation.
“Overall, 96 out of 142 different areas covered by the mapping exercise were found to be supported by EU legal or policy frameworks (with well over a third being “directly underpinned or linked”, ie EU membership is particularly significant).
“This shows that any workable solution is likely to involve the UK committing to quite a close relationship with the EU, at least in the areas identified as crucial to North-South cooperation”.
A lack of transparency
The release of this information was a positive result — but Jon believes that the government has been far from open during the whole Brexit process.
“To be properly informed about Brexit, we need access to information which is often available only from government. It would be very difficult for an organisation outside government to produce something like the mapping exercise because it requires input from numerous experts across different areas and in some cases, access to information that only government is likely to have.
“Government is therefore uniquely well placed to provide this information – but if government refuses to share it, it’s impossible to get the full picture.
“In my view, the government’s approach to its own documents concerning Brexit has been to release as little as humanly possible, arguing that disclosure would undermine its negotiating position with the EU.
“I accept that occasionally, information may need to be withheld for this reason. But it is equally if not more important that people can understand what Brexit will mean for them — and I don’t think the government has paid anywhere near enough attention to that issue”.
This was not Jon’s first experience using FOI: in fact, he had recently exercised his rights to information on another Brexit matter.
“I asked DEXEU for details of the scope and timetable of their consultation on leaving the EU. This was after David Davis (who was then Secretary of State for Exiting the EU) had told Parliament in September 2016 that the government would be consulting widely on the options for leaving the EU.
WhatDoTheyKnow.com has made the process quite easy to initiate and it also means that others who might be interested in the same information can find your request.
“By late October, nothing had been published, so I made an FOI request through WhatDoTheyKnow.
“Initially, DEXEU told me it had this information but refused my request, saying that it planned to publish the information at a later date. I didn’t see why the information couldn’t be published sooner and complained to the ICO.
“Their investigation showed that DEXEU did not have a formal plan or any formal process for the consultation — which explained their somewhat evasive response.
“DEXEU should probably have told me that it didn’t hold the information I had requested – but to do so would have involved effectively admitting that it didn’t have a plan or any formal process for consultation. You can make up your own mind by reading what the ICO had to say here”.
Pursuing a refused response
But back to the Irish border request. When Jon didn’t receive a response from DEXEU, and after requesting a similarly fruitless internal review, he took the next step and referred the matter to the ICO. They ruled against disclosure in a decision that Jon believes was ill-founded:
“The ICO decision was based on section 35 of the FOI Act, which relates to information produced for the purposes of policy formulation.
To be properly informed about Brexit, we need access to information which is often available only from government.
“It is certainly true that the mapping exercise was produced to inform the government’s thinking about Brexit and Northern Ireland. However, it was a summary of the current arrangements, not a discussion of what the future policy options should be; as such, it was essentially background information, which is usually regarded as less sensitive. Section 35(4) makes it clear that there is a particular public interest in the disclosure of background of information – and case law makes it clear that such disclosure can take place before the final policy has been formulated, as I was requesting here.
“The ICO also argued that disclosure of the mapping exercise would have a “negative effect on discussions” with the EU and “create a distraction to discussions” — but its decision did not explain how this would occur, especially given that the mapping exercise had been shared with the EU.
“When I put these points to the ICO as part of my appeal to the tribunal, it accepted that the mapping exercise was background information but argued that it should be treated in the same way as discussion of policy options. It was unable or unwilling to provide any further explanation of the supposed negative effects of disclosure and suggested that this was a matter for DEXEU to explain. I was (and remain) very concerned by this because the ICO is supposed to be an independent regulator; it should not simply be taking what government says at face value but should be questioning it and satisfying itself that what government says is actually correct”.
And so Jon referred the matter to tribunal.
But in June of this year, two of the key documents he was requesting were finally released by the government, and he decided to drop his appeal to tribunal, for reasons which you can read in his annotation of the time.
While many WhatDoTheyKnow users are determined and driven, it’s also true that others would be easily defeated by an initial refusal, not to mention the further rulings. So what gave Jon the will and tenacity to carry on?
I would encourage people to use FOI … if you are prepared to persevere and be patient, you can get what you want.
“I knew that appealing to the tribunal would involve quite a lot of time and effort on my part, but I wasn’t prepared to just let this go for two reasons. Firstly, FOI depends on having an effective regulator which is prepared to question government robustly — and if people like me just shrug our shoulders when that doesn’t seem to have happened, then nothing will ever improve.
“Secondly, Brexit is going to take many years to sort out and there will be many more occasions where people want to use FOI to get information out of government; unless challenged, government will just continue to refuse to disclose information whenever it suits it to do so.
“Appealing to the tribunal was a new experience for me. I am a lawyer by profession, which probably helped, but I am not an expert in FOI, nor am I a litigator — and I did feel at times that my lack of familiarity with those areas was a handicap. So I have a lot of respect for people who are not lawyers and take cases to the tribunal on their own.
“I would encourage people to use FOI and I think that what happened with this request shows that, if you are prepared to persevere and be patient, you can get what you want — even in a situation like this where MPs had asked repeatedly for exactly the same information and hadn’t received it.
“FOI is one of the few tools that individuals can use to hold government to account and it’s important to use it — otherwise government will never take transparency seriously. WhatDoTheyKnow.com has made the process quite easy to initiate and it also means that others who might be interested in the same information can find your request.”
Jon is also planning to submit a complaint to the ICO about its handling of this case, including the time taken to deal with it:
“Although it was expedited, it still took over six months, whereas my complaint to the European Ombudsman (which concerned essentially the same material) was dealt with in about half that time.”
He intends to post a link to the complaint in a further annotation on the FOI request page on WhatDoTheyKnow – so watch this space!
Many thanks to Jon for taking the time to talk to us about his long and involved pursuit of information, which despite the delays will still help to inform the UK public at this critical time in our country’s history.
In 2016, Theresa May described modern slavery as “the great human rights issue of our time”. “These crimes must be stopped,” she said, “and the victims of modern slavery must go free”.
But words alone do not ensure results, it seems. The data mapping project After Exploitation has discovered that a sizable number of vulnerable victims of human trafficking and modern slavery are — far from ‘going free’ — actually being held in UK detention centres with a view to deportation.
Our Freedom of Information site WhatDoTheyKnow played a vital part in the project’s research, both in helping identify what data was available, and in bringing about its release.
One result of his many recommendations was the employment of ‘Detention Gatekeepers’ — independent overseers who check the status of detainees, and that they are legitimately held. If they are found to be in this country as a result of human trafficking or modern slavery, they should be offered help via the National Referral Mechanism.
We spoke to Maya Esslemont, founder of After Exploitation, to learn how the use of WhatDoTheyKnow has helped uncover the true numbers of those who have been let down by this system, information which the government had previously denied that they held.
She told us:
“Through FOI requests, we uncovered the number of potential and recognised victims of human trafficking who have been deported since 2016 or detained in 2018.
“This completely needless and unjustifiable use of detention on vulnerable people, for whom there was never any realistic chance of removal, demonstrated huge failures in Detention Gatekeeping, the process meant to prevent vulnerable people from being detained.”
Maya explained that, prior to these findings, a gap in the publicly-available data impeded any understanding of the number of vulnerable detainees:
“Although the Government releases quarterly statistics outlining the number of ‘potential’ victims of trafficking, very little is known about the number of recognised victims who are later deported, detained, or left at risk of re-trafficking due to a lack of safehousing. Our project hoped to demonstrate the scale of these issues”.
FOI seemed like the obvious route to uncovering these figures, says Maya, in part because it was clear where the information must be held, if it existed:
“The Home Office oversees both immigration enforcement and victim support and recognition. This is a clear conflict of interest, but it did mean that we knew all the outcome information must be held in the same place.”
The group found that by checking the archive of previous FOI requests published on WhatDoTheyKnow, they could discern exactly what data existed, and more importantly, could cite prior responses as proof of its existence.
“As suspected, but denied until now, the Home Office holds highly specific, readily available information on immigration, detention and deportation outcomes of trafficking victims.
“We knew from Parliamentary correspondence that some trafficking victims’ asylum outcome data was held as far back as 2015, but nobody had any idea that such readily available data on the actual detention existed.
“When we trawled through Home Office FOI requests submitted by others on WhatDoTheyKnow, it was clear that information on detainees’ vulnerability was held — and it was after we referenced these previous request outcomes, dated since 2016, that the Home Office started providing data on trafficking specifically.”
We were most interested to hear this, as it further justifies one of WhatDoTheyKnow’s key features – that all requests and responses are published online. We talk a lot about how this can make the information accessible to wider numbers of people, but here is an example of that archive going on to inform a further set of requests, bringing about important results.
And visibility wasn’t just useful in helping the campaign discover the existence of the vital data, but also, Maya believes, provided an extra incentive for the Home Office to release the information in accordance with the FOI Act:
“I submitted a fair few FOI requests privately, but most received a rejection. However, since moving the same requests to a public platform, we’ve found that a majority have been fulfilled.
“Many charities and journalists may be tempted to submit FOI requests privately so that the responses can be ‘saved’ for exclusive research or stories, but this exercise seemed to prove that it can be more effective to ask for information as publicly as possible.”
(We should mention that our WhatDoTheyKnow Pro service does allow for the private submission of requests which are then published at a later date — although there’s no requirement to submit privately. Pro users can enjoy the best of both worlds, using the organisational features and the batch request functionality, and making requests in private or in public according to which strategy they find most effective.)
Having uncovered this crucial data, After Exploitation has worked with other organisations to get their findings more widely known:
“The charity Women for Refugee Women managed to secure a debate in Westminster Hall on the detention of trafficking victims. As part of this debate, MPs discussed research by their organisation and by After Exploitation.
“Political interest in this issue should be commended, but the Immigration Ministers’ response was very concerning. Caroline Nokes MP claimed that the use of detention on 507 potential trafficking victims was justified, as many were recognised during the time they were in detention.
“However, we believe the fact that hundreds of vulnerable people were deemed suitable for detention in the first place is deeply worrying.”
The research gained wider attention, too:
“MPs and journalists at the Guardian, Sky News, Independent Online and Thompson Reuters picked up our research paper Supported or Deported?.
“In response to the findings, 23 NGOs signed our open letter asking for greater data transparency on human trafficking support outcomes, and for an end to Home Office involvement in vulnerability screening and trafficking decision-making. A week later, Diane Abbott MP tabled an urgent question in Parliament asking the government about the detention of exploited people.
“However, the Government response showed how much work is left to do. The Immigration Minister dismissed the Government’s own data as not robust enough to provoke change, whilst also using this same data to clear its reputation on the length of detention.
“This response shows how much harder we have to work before the Government will commit to data transparency, and the way victims are treated.”
We asked Maya what she hoped others would take from the experience of After Exploitation.
“I hope journalists, activists and academics will submit their own FOI requests to contribute to public understanding of human trafficking, modern slavery, and other forms of exploitation such as forced marriage.
“When it comes to human trafficking victim support, there are still so many gaps in our understanding — such as health, wellbeing and legal outcomes. We’re already taking another request to the Information Commissioner’s Office after a rejection on cost grounds, but we hope the ongoing struggle to secure information on trafficking will encourage others to do the same.”
We congratulate the project on what they’ve achieved to date and hope it will act as inspiration to others who seek to uncover injustice or malpractice within our systems.
GCloud 11 is live: it’s the latest iteration of GOV.UK’s Digital Marketplace, making it easier for those in the public sector to find and procure cloud-based software services — including ours.
Regular followers will be well aware that FixMyStreet Pro is a street fault reporting service which can integrate with any existing council system, offering great opportunities to cut costs and increase efficiency.
Meanwhile our FOI for Councils service streamlines authorities’ FOI workflows and reduces unnecessary requests, relieving the burden in what is often an overstretched resource.
The great benefit of GCloud from the public sector point of view is that suppliers come ready-verified, saving the time and inconvenience of going through the regular procurement process. All the information you need about the service is readily accessible, and then when you’ve made your decision it’s very simple to get things moving.
We’re pleased to offer these two services via GCloud — and will be equally happy to answer any questions you may have.
Every quarter the Cabinet Office releases Freedom of Information statistics for a collection of central government ministries, departments and agencies. This provides a benchmark for understanding how requests made from WhatDoTheyKnow relate to FOI requests made through other methods. From 2017, mySociety started retrospectively tracking the proportion of FOI requests sent via WhatDoTheyKnow to central government using a minisite — https://research.mysociety.org/sites/foi/ — that explores the data.
This report explores what had and hadn’t changed in the last few years, as well as the number of requests made through WhatDoTheyKnow Pro — a new service being piloted that allows embargos of the results of FOI requests for a period — with the goal of bringing more people making FOI requests professionally (such as journalists) into the system and leading to more raw results being made available after the conclusion of a project.
We found that:
- WhatDoTheyKnow accounted for between 15-17% of audited bodies and between 18-21% of ministerial departament FOI requests.
- While the proportion of requests have grown most years since 2010, there was no real change from 2017 to 2018.
- Requests made to central government via WhatDoTheyKnow only make-up around 9-10% of all requests sent via WhatDoTheyKnow in 2018.
- WhatDoTheyKnow Pro requests made up 1% of FOI requests to central government — but most requests using this service went to other areas of the public sector.
In a strike for transparency, journalist Jenna Corderoy has secured the release of documents from the European Research Group (ERG), the pro Brexit lobby of which Jacob Rees-Mogg is a prominent member.
For more than a year, Jenna has been striving to ensure that the facts around Brexit — and the funding that drives it — reach the public domain: she also broke the now-infamous revelations about Vote Leave’s campaign overspending.
The release of material such as this into the public domain is beneficial to all, as it means that public debate is based on facts rather than conjecture. FOI can be a vital tool in ensuring that the documents shaping our society’s future direction are available for scrutiny.
On this latest release, a piece by Jenna and Peter Geoghegan reports:
“The ERG is part-funded by subscriptions paid out of MPs’ parliamentary expenses. As a consequence the group has to supply samples of its research for scrutiny to the Independent Parliamentary Standards Authority [IPSA] to ensure public money is being properly spent and not used for party political campaigning.”
Using WhatDoTheyKnow Pro — our service for professional users of FOI, which among other features, allows users to hold off from putting request correspondence in public until a story has been published — in January 2018 a request was made to IPSA to see these materials.
The request’s WhatDoTheyKnow page is now public. IPSA initially argued that the release of these materials was exempted under section 43 of the FOI Act as it would prejudice the commercial interests of the ERG, whose research is ordinarily available only to those paying a £2,000 annual subscription.
Subsequently Jenna referred this refusal to the Information Commissioner, who upheld the decision. Determined that the public has the right to see the research, Jenna and Peter did not leave the matter there, taking it to an information tribunal.
The tribunal made the final decision that the material must indeed be released, vindicating the effort and determination Jenna put into pursuing this request and stating that to make the documents available would:
“further transparency, accountability and public trust with respect to the working of Parliament”.
As a result, the documents will be made available on 11 July — keep an eye on OpenDemocracy for news of their release — and we’ll make sure we update the annotations on the original request as further details unfold. Meanwhile, you can see the full tribunal decision here.
Image: Udur Akdemir