UK FOIA requests - Spy Blog

Home Office
Information and Record Management Services
Information Management and Technology Unit

4th Floor Seacole Building, 2 Marsham Street, London SW1P 2BF
Switchboard 0870 0001585 Fax Direct Line 020 7273 1030
E-mail AAAA.BBBB@homeoffice.gsi.gov.uk www.homeoffice.gov.uk

Our Ref: Annnn/n
Your Ref
Date 21 June 2005

[address]

Dear Mr XXX

Freedom of Information Act Request -Internal review request

Thank you for your request for an internal review dated the 23rd February 2005 and received here on the 25th February 2005

Is 4 months the usual, or acceptable time for an Internal Review of an FOIA disclosure ?

Your request for an internal review relates to your original Freedom of Information (FoI) request dated the 1st January 2005 asking for:

The two pre stage Zero and the actual stage zero gateway Reviews of the Identity cards Programme project.

I have now concluded an internal review of the decision to disclose some but not all of the information requested (a decision which was conveyed to you in a letter dated the 22nd February 2005).

Your first query relates to the response exceeding the statutory 20 working days deadline by 15 days. I have now had the opportunity to review all the papers in relation to the case and feel that the Home Office unit responded to the request in accordance with their statutory responsibilities. The final response did exceed the 20 working days specified, but did not contravene our statutory obligation. A letter was emailed on 1st February, the 20th working day of the request. The response confirmed that the Home Office held the information requested but indicated that certain exemptions applied. The exemptions cited were S35 (1) (a) and (3) which relate sto the Formulation of Government Policy and S33 (1) (b) and (2) which relates to Audit Functions.

Which still does not answer the question why it takes 7 working weeks not to disclose any information from what are existing , compact, easily electronically accessible documents of recent vintage, rather than for historical paper documents which needed an expidition to hunt them out of obscure filing cabinets.

The Information Commissioners guidance in "The Freedom of Information Act 2000 an Introduction" indicates:

Where it is possible that one of the qualified exemptions applies and the public authority is considering the Public Interest Test, the public authority need not comply with the request until such time as is reasonable in th ecircumstances (section 10(3)). However the Access Code required that the public authorities should aim to make all decisions within the 20 working day period.

The Identity Cards Section indicated in their letter of 1st February 2005 that Sections 35 and 33 of the FoI Act are qualified exemptions and that they were conducting a Public Interest Test. They included a reasonable date by which they intended to supply a full response, the 22nd of February 2005. A full response was emailed on this date. This response therfore is fully in accordance with the Act and fulfils all Home Office statutory obligations.

It does not fulfil the spirit of openness and freedom of information which the Act is alleged to promote..

In relation to your second query which suggests that the information disclosed, constitutes rather less than the preamble and introduction to the published Home Office consultation document, and less than oral evidence given tot he Home Affairs Committee. I have now had the opportunity to review all of the relevant papers and have satisfied myself that the information provided was extracted from the Gateway reviews and constituted the majority of the background information that could be provided.

Therefore at least one other person in the Home Office has now been let in on the secret of what these Gateway Reviews contain.

If the Gateway Reviews, especially the pre-Stage Zero ones are just "back of the envelope" documents, then perhaps this really is the sum total of the "background information" that exists to be disclosed.

This points up one of the frustrations of the Freedom of Information Act, unless there is a full disclosure, how is the public meant to determine what should have been included in a Review, but which is missing or has been overlooked ?

Upon this internal review however I have identified an additional section of the review, the "Purpose and Conduct of th ereview" section which should have been provided to you. The relevant extract of information is now provided below:

The Purpose and Conduct of the review

The purpose of the Gateway 0 is to:

• Review the business need and identitfy whether it requires a project or a programme of projects.

• Ensure that the project or programme is supported by users and stakeholders and contribute to the organisation's business strategy.

• Review the arrangements for leading and managing the project or programme (and its individual projects).

• Review the arrangements for identifying and managing the main project of progrmme risks (and in case of a programme the individual project risks), including external risk such as changing business priorities.

• Check that financial provision has been made for the project or programme and that plans for work can be done through to business case justification (Gateway review 1) for each procurement project are realistic, properely resourced and authorised. This should include the individual projects within a programme.

This is obviously generic Gateeway Review template stuff, applicable to all Gateway Reviews, not just these particular ones.

What are the risks which have been identified at this stage ? What are the risks which have been ignored, left out or wrongly prioritised ?

I now turn to your last question which relates to the Public Interest Test. You ask whether we are positive that the public interest of transparency does not allow us to disclose the full documents, with any necessary redaction to protect the personal data, for example, consultants and civil servants.

I have now had the opportunity to review the information requested and the public interest arguments put forward by the Policy Unit. I have also reviewed the application of exemptions S35 (1)(a) and (3) and S33 (1)9b) and (2).

Who exactly makes the decisions in this Policy Unit ? Is this the Home Office Policy Unit >? How does this relate to the Department for Constitutional Affairs "clearing house" for FOIA requests ? Is it entirely staffed by Civil Servants, or are there NuLabour political apparatchiki pulling the strings ? Perhaps this should in itself be the subject of a Freedom of Information Act Request ?

Section 35 is included in the FoI Act to ensure that the formulation and development of government policy and government decision making can proceed without detriment to either the policy making process, or the policy itself, whilst ensuring thatthere can be a full and proper public participation in policy discusssions and debate. This exemption is designed to protect the policy making process and ensure that this process remains able to deliver effective government.

It also seems to be the main loophole in the Freedom of Information Act, which allows the "Sir Humphrey Applebys" to continue as before, and to ignore the alleged sea change to openess and transparency.

"Yes, Minister"
Series 1, Episode 1, "Open Government"
First airtime BBC: 25 February 1980

"Bernard Woolley: "Well, yes, Sir...I mean, it [open government] is the Minister's policy after all."
Sir Arnold: "My dear boy, it is a contradiction in terms: you can be open or you can have government."

The Office of Government Commerce (OGC) Gateway 0 reviews are conducted at the start-up of major programmes and repeated at critical points throughout their lifecycle. In this instance the purpose of the Gateway 0 review was to examine the key points of th eformulation of government policy in relation to Identity cards and make recommendations to feed into the ongoing development of Idneity Cards policy.

In applying section 35 it is necessary to take a clear view of the public interest considerations that must be taken into account when considering whether or not theinformation requested should be released. the factors for releasing theinformation requested centre on the wide ranging impact of the ID cards programme and the public interest in being able to assess the quality of advice being given to ministers and the subsequent decision-making. It is also in the public interest for greater transparancey in all areas of policy development which will make the government more accountable to the electorate and increase trust.

The factors which weigh against disclosure revolve around the fact that this specific Gateway ) review provided the Home Office with a significant contribution of ideas and considerations related to the ongoing policy formulation in this area which will improve the smooth running and development of the Identity Cards programme. there is significant public interest in non-disclosure when disclosure would (or would be likely to) inhibit the exchange of views and accordingly adversely affect the formulation and development of Government policy on ID cards programme. The information in the Gateway 0 review contributed towards the still live policy development process and the disclosure of this information would reveal significant detail of the formulation of the Government policy. The extent to which the detriment to the formulation and development of Government policy is caused by undermining the Gateway process utself gives rise to further public interest considerations set out below in relation to section 33 and the arguments apply here with equal weight.

In addition Ministers and officials need to be able to conduct rigorous and candid risk assessments of their policies and programmes including considerations of the pros and cons without there being a premature disclosure which might close off better options, and the Gateway review plays a vital part in this assessment. As part of this process it must be possible to 'think the unthinkable' and use imagination, without the fear that the policy proposals will be held up to ridicule.

This really is "Sir Humphrey Appleby" doublethink.

Is the "formulation and development of Government policy " actually more important than the risks of creating a police surveillance state and the wasting of billions of pounds of public money ?

Why are the public not also allowed to "'think the unthinkable' and use imagination"
or to suggest "better options" ?

Our FOIA request would not have exposed the day to day edevelopment of new ideas and the evaluation of their pros and cons by the civil servants or their outside consultants. We were not hoping to "ridicule" the proposals, only to bring our own experience, knowledge and expertise to bear on what seems to be intended to be a massive National project which will significantly affect every single person in the United Kingdom.

This incessant erring on the side of secrecy, at a stage in the project where there are simply no commercial bid price secrets or systems security secrets to be inadvertantly revelaed, makes it far more likely that the ID Cards programme will fail, and that trust in the Government and the Civil Service will be further reduced.

The policy unit assessed the information they held and documented their public interest arguments. They addressed points in favour of disclosing the information and clearly documented both sides of the argument in their response letter of the 22nd of February. Whilst significant public interest un this particular policy is recognised, given the importance of the policy itself due to its potential impact on a large number of people, there is a stronger public interest in ensuring thereis no prejudice to the development of this policy.

Due to the above points I feel that the Policy unit correctly applied S35 of the Act and public interest arguments clearly fall against disclosure of this information.

We simply do not agree that "public interest arguments clearly fall against disclosure of this information" for exactly the reason that this is such a potentially disasterous policy which will affect everyone in the UK. That is a strong reason for public disclosure and transparancy, not a reason against.

In relation to S33 (1) (b) and (2) the public interest arguments in favour of releasing this information are consistent with those outlined in the S35 arguments above.

In addition, the public interest factors against disclosure are considered as follows. The OGC gateway Reviews are publicly promoted (via the OGC website) as being conducted on a confidential basis. This approach promotes open and honest exchanges between the programme/project teams and the review teams. The reviews are highly dependant on the candour and confidence of the project teams they review. The release of Gateway review reports would hinder this free and frank dialogue, undermining the effectiveness of the Gateway process to the detriment of the public interest.

This assumes that there really is fully candid dialogue, and that there is no bureaucratic "backside covering" or "feel good hand waving" or technobabble and waffle going on.

This assumes that the outside consultants are not simply telling the political customers what they want to hear: "I want to hear about Solutions, not about Problems"

This assumes that the project team is not simply promising the politicians a technological magic fix to the social and political problems and glossing over the real technical, ethical and financial problems - "more consultancy studies required".

The knowledge that this information would be released as a matter of course would be likley tom hinder the OGC's Audit process. There is potential for the OGC to provide less direct and unrestricted responses in Gateway reviews. There is an additional concern that projects likely to attract adverse recommendations may not request a review,

Surely a project of the magnitude of the Identity Cards programme, which would spend billions of pounds of public money, should never have the option of refusing to go through the Gateway Review process ?

or be as frank in provision of information to th ereview team, if there was a prospect of premature disclosure of such information. These projects are arguably those which benefit the most from these reviews. There is also the potential for the responses to be more anodyne with the result that the reviews are less effective. Both the above arguements suggest that the public interest in the effective use of public money is likely to be undermined by releasing this information and hindering the effective use of the gateway review process.

I consider those factors against disclosure outweigh those factors in favour of disclosure and I therefore uphold the Policy Units decision that the exemption should be applied and the public interest arguments fall against disclosure. This exemption applies to the entirety of the documents reviewd and there is no additional backgroundor factual information that can be released.

I must therefore after careful consideration uphold the response provided to you by the Policy Unit on the 22nd February with the addition of the xtract of background information provided above.

Should you remain dissatisfied after this internal review, you have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of information Act.

Information Commisioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
Sk9 5AF
Yours Sincerely

AAAA BBBB
Information Access Consultant