Howe’s that? It’s just not cricket, Mr Graham and Mr Smith.

The anatomy of a request

One of the daily challenges of an FOI Officer is gaining the necessary contributions from colleagues that are required to fulfill the primary requirement of FOI – to establish the information held within the scope of the request. A request handler is often heavily reliant on the co-operation of colleagues to locate and understand the information requested.

With that in mind, I refer to the two Decision Notices issued against the ICO in relation to their handling of a requests for legal advice regarding the decision not to prosecute journalists in connection with Operation Motorman.

The history of the various requests for Motorman legal advice is quite complex and I don’t intend to try and break them down in great detail, but I would like to highlight some troubling aspects of the Information Commissioner and his Deputy’s conduct, so a short narrative is necessary.

On September 16th 2011, addressing the non-prosecution of journalists as part of Operation Motorman, Mr Graham submitted the following evidence to the Leveson Inquiry:

“External legal advice at the time suggested that for this reason it would not be in the public interest to pursue possible prosecutions. This was also because of the difficulty in
proving that the journalists involved knew that the information they were seeking could only be obtained by unlawful means”.

On Septemebr 15th 2011, the Deputy Commissioner, David Smith, made a robust public defence of the ICO’s decision not to prosecute journalists, and specifically tackled an accusation from an ex employee that the failure to prosecute journalist was as a result of a fear of the press, with the following rationale given in a guest article in The Independent

“Any suggestion that the decision not to pursue prosecutions against journalists was driven by a fear of the press is entirely false. We exposed the involvement of the press in the first place. Our decision was based on expert legal advice that pursuing prosecutions would not be in the public interest, because of the difficulty in proving beyond all reasonable doubt that the journalists who received information from Mr Whittamore knew it could only be obtained illegally”.

At this time, the ICO received a request from regular requester, frequent blogger and all round thorn(pain) in the (back)side Tim Turner. Mr Turner, presumably on seeing the ICO’s article in the Independent, requested the legal advice in question.

So, the scene at this point is that ICO maintain they were ‘as disappointed as anyone’ with the outcome of Motorman and refer to expert legal advice as the key reason why journalists weren’t prosecuted. As a primary function of FOI is to hold officials (and their accounts) open to scrutiny, one can understand why an interested and inquisitive mind would want to see the legal advice, especially as its contents were seemingly being relied upon as justification for a high profile decision.

Upon receipt of the request, the request handler, as one might expect, contacted David Smith to seek the location of the legal advice. He replied that

“I haven’t got a copy of any written legal advice. I understand that the advice came from our barrister Bernard Thorogood but I am not sure whether it was in writing or just oral. Stephen McCartney and /or Simon Ebbitt might be able to help because they have access to all the Motorman documentation”.

Firstly, it’s not easy to reconcile the above statement with Mr Smith’s later contention in the Internal Review that his reference to legal advice

“was on the basis of his understanding of the totality of internal and external advice and the contents of the What Pricy Privacy report. He has clarified that he was not referring to any one piece of advice or recorded information”.

If the latter statement is true, why didn’t he tell the request handler that, so that a response could be framed explaining this position? Why reference a specific piece of advice, even noting the name of the author? Granted, perhaps Mr Smith genuinely wasn’t sure if there was a record of external legal advice of the type reported and thus wished for the request handler to try and locate it, as part of the requirement of Section 1. If that’s the case then his response might be just about be reasonable from an FOI handling perspective, although it does bring into question the integrity behind his article for the Independent in which he was very unambiguous about the position, quoting expert legal advice and it’s specific contents.

He certainly didn’t tell the Independent that he was writing about his understanding of the position. Aside from anything else, it is troubling such a high profile statement about a high profile topic would be handled with such imprecision.

Back to the request…

Having received Mr Smith’s steer, the Internal Compliance Manager and request handler checked with those named, who also had no recollection of seeing such legal advice. They subsequently carried out a comprehensive search of all the Motorman records and they couldn’t find anything either. They therefore  wrote to the great and the good to inform them that they had not located any information and that it was important for all to be aware of this, given ‘it was likely to attract some attention’. This is standard stuff for a request handler – cast the net for the information and keep an awareness for the potential fallout from the (non) disclosures.

At this stage, bearing in mind the ICO had publically referenced expert/external legal advice and that Mr Graham had specifically quoted it in his submission to a high profile Inquiry, one may have thought this would have caused something of a reaction, but Mr Graham still offered no comment.

For the avoidance of any doubt, we should note that both Mr Smith and Mr Graham (and the wider distribution list) were asked for a copy of the legal advice. They weren’t asked for the legal advice referred to by Mr Smith, Mr Thomas or indeed Mr Graham. Any legal advice held should surely have been volunteered.

To put that in context, the ICO were happy to run a dual approach to telling the public and Leveson that External Legal advice told them not to proceed, whilst simply telling an FOI requestor who requested the legal advice that no information was held, without any additional explanation.

A subsequent request saw the ICO acknowledge “there was no evidence the document ever existed”, but no amendments were made to the Inquiry evidence, or the public position. Oddly, they didn’t want to confirm this, as they didn’t want to pre-empt Richard Thomas’ evidence to the Inquiry. Surely by referencing the legal advice in the first instance they had already committed to their position?

If the ICO had previously genuinely believed they had external legal advice, it was now being flagged that they did not. The Internal Review into Mr Turner’s request from the (other) Deputy Commissioner even noted that None of those who were involved in Operation Motorman and its immediate consequences are still at the ICO, so we are largely working on the documents retained”, yet conversely he still defended the “accuracy of David Smith’s statement”. How can one say you are relying on documents, find no documents, yet still believe it’s correct to quote and rely upon legal advice when you also accept that it never existed?

A further request went in for the legal advice Mr Graham was referring to and 2 specific pieces of legal advice were produced, despite these being 2 pieces of advice that had explicitly been ruled outside of the scope of the initial request on the back of David Smith’s statement. As an aside, the provided advice certainly didn’t compare to the description Mr Graham had given to Leveson. The Decision Notice in that case noted the ICO had since changed their position and that Mr Graham’s evidence was referring to the full body of legal advice.

Whether Mr Graham was referring to two particular documents or the wider body of legal advice, surely he should have explained this to his staff when he was first asked about the existence of legal advice?  It was even flagged to him that the likely response, which did not appear at all helpful, ‘would likely get a reaction’ but he was quite happy for his own staff to send a reply that was at best disengenous and at worst downright wrong. 

If Mr Graham and Mr Smith had explained the basis for their clear statements was infact based around their understandings and/or the complete body of evidence, then it would have saved all concerned an awful lot of time. Some may feel it perhaps would have exposed their public line as not credible. Personally I feel they thought they had some legal advice on the basis that’s what Mr Thomas told them, and as such just blindly followed his statements. Hardly a robust way to deal with an accusation from a previous employee but these are incredibly busy people and we all make mistakes. Refusing to correct or acknowledge these oversights is perhaps less understandable. The simple fact remains that the ICO has no such legal advice and those high profile statements to the contrary were baseless – the requests should have led to a rethink. FOI can sometimes lead to embarassing disclosures, but so long as lessons are learnt, isn’t that the whole point?

Anyway, returning to the central thrust of my blog, if the Information Commissioner and his Deputy cannot find the time to show sufficient respect to his FOI request handlers, then what kind of example does that set for public authority employees of all grades?

The situation reminds of the withering quote Geoffrey Howe served up about Margaret Thatcher in his resignation speech to the House:

“It is rather like sending your opening batsmen to the crease only for them to find, the moment the first balls are bowled, that their bats have been broken before the game by the team captain”.

The requests here were doomed – how can a request handler properly comply with the spirit and wording of the legislation if the skipper doesn’t provide them with the context that they require – and indeed lets them spend hours searching for information that never existed.

I like and respect both David Smith and Chris Graham, but that doesn’t make them immune from criticism – or, again borrowing from the Howe themed vernacular, a savaging from a dead sheep.

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