Freedom of Information – request your data from government, as we did
YOU HAVE until 30 September to submit information to Parliament's Public Administration and Constitutional Affairs Committee inquiry on the Government's handling of Freedom of Information Act (FOIA) requests. Here we report the results of joining the NUJ's campaign to gather evidence on this.
The Select Committee will look in particular at the Cabinet Office's "Clearing House" that "advises" central government departments on how to respond to FOIA requests, particularly from journalists.
An NUJ campaign for journalists to get data held on them by government departments as a result of them making FOIA requests to them continues. The Freelance deputy editor has given it a try. The more we can find out about what's going on in the murky world of Government and how they handle our FOIA requests, the more chance we have of forcing changes in behaviour.
Investigations by OpenDemocracy and others have found that the Clearing House and the departments it advises have been obstructing or ignoring FOIA request from journalists. They collect and circulate data on journalists who make such requests. This is contravention of the principle in the Freedom of Information Act that responses to FOIA requests should be "applicant neutral" - that is, it should not matter who the requester is.
A High Court ruling in April demanded the Government release information on the Clearing House, citing its "profound lack of transparency".
Journalists from OpenDemocracy, the Guardian, the Times, the BBC and others found that Government departments had gathered data on them as a a result of their FOIA requests. They discovered this by submitting individual Subject Access Requests using the Data Protection Act (which is separate from the FOIA) asking for personal data about themselves.
Freelance editor is told the Home Office has no data on his FOIA requests
The NUJ is encouraging its members who have made FOIA requests to Government departments to make a Subject Access Request (SAR) to those departments to see whether they gathered data on them as a result of their perfectly legitimate FOIA requests as part of their work. We know the Clearing House has existed since at least 2004.
The Freelance deputy editor, the author of this article, made a number of FOIA requests to the Home Office, specifically its Visas and Immigration section, between 2010 and 2014 for business-to-business magazine EL Gazette.
These centred on student visa refusals by nationality, and on expert advice the Home Office had taken on setting language levels for different types of visa. FOIA disclosures from the Home Office made to me as EL Gazette's news editor revealed that the Home Office hadn’t taken any expert advice on language levels at all. Also, it couldn't fulfil one of my requests because two of its databases, Megastorm and PBS, were at the time incapable of talking to each other.
Inspired by the NUJ's campaign, I put in an SAR to the Home Office asking for any personal data generated by my FOIA requests all those years ago, and on whether they had shared this or passed it on and so on. The letter and subsequent correspondence are here.
These were followed four months of me sending reminders and making a complaint to the Information Commissioner's Office before I eventually got a proper reply. It seems the Home Office's data protection officer saw the words "Visas and Immigration" and decided I wanted a Passenger Record of my entries and exits from the UK, which they sent me. That is not what I asked for at all.
After four months and being passed around at least three different bits of the Home Office, a member of the Home Office Information Rights Team finally "established that the Home Office does not hold any personal data within the scope of your request. The information would have been destroyed in line with the Department’s disposal and retention policies." The Home Office response is here. That's reassuring to know.
What about the Cabinet Office?
While I was at it I put in a request to the Cabinet Office (here), specifically asking about any processes that the Clearing House might have, including sharing any data on me with other parts of government. The Cabinet Office got back to me more quickly. Within just 24 days Richard Hooker of its "FOIA Policy" unit replied to "confirm that the department does not hold any personal information falling within the scope of your request". Again, that's nice to know. The Cabinet Office response is here.
Hooker did mention that the Cabinet Office took over some of the processes I was asking about in 2015, and suggested I make another FOIA request to the Ministry of Justice, which I will do.
I would heartily recommend that journalist who've made FOIA requests to government departments in the past - whether they are NUJ members or not - request from those departments any data that these requests may have generated. Even if you are told, as I was, that they have no such data on us, we will have acquired some very marketable skills in the process.
Subject Access Requests: Be Prepared
A lot of time was wasted between me getting an acknowledgement of my request and me getting an email saying the department wanted to verify my identity. Both departments of which I made FOIA requests - the Home Office and the Cabinet Office - asked for a scan of my passport photo page. Both asked me to write, print out, sign and scan a letter confirming that I gave them permission to share my data. They also wanted proof of address. The utilities at my address weren't at the time in my name, which was a problem. The Cabinet Office wanted to see a scan of my birth certificate instead.
If you can have all this scanned and attached to an email ready to go when you make your initial FOIA request it will save a lot of time.
If the department in question takes more than 28 days to respond, pick up the phone and talk to the very helpful people at the ICO. They quickly directed me to fill out a complaint form for them to forward to the Home Office. That seemed to make the Home Office pay attention.
Finally, if you're requesting data from a particular department, you might as well put in a very similar request to the Cabinet Office and the Ministry of Justice as well, if your original FOIA requests were before 2015. Do remember to tell Sarah Kavanagh how you got on (see above). The Freelance would also like to hear from you if you try this and get any response, including a "we have no data on you" reply.
New Information Commissioner for a ‘healthy data economy’
The UK government recently announced that John Edwards is its preferred nominee for the post of Information Commissioner. Subject to approval by Parliament's Digital, Culture Media and Sport Committee, he will take over the post in October, succeeding the current incumbent Elizabeth Denham. John Edwards is currently New Zealand's privacy commissioner.
Post-Brexit, the UK's freedom of information regime will be - in theory at least - "independent of" the current regulations based on EU law. The current system, based on the EU General Data Protection Regulation (GDPR) is expected to persist for at least a while. For "independent" we may read "worse": according to Civil Service World, UK ministers have recently expressed a desire for an approach to freedom of information and data protection that is "more supportive of innovation and a healthy data economy". Uh-oh! That looks like code for "less regulation"