17.04.07 Look out for updates on this subject
By Bill Goodwin
Government officials planned a secret strategy to frustrate any request for the disclosure of the findings of an investigation into a troubled information-technology project.
  Confidential memos expose how officials at the housing corporation, the government quango based at Maple House (pictured left) that distributes more than £2 billion a year to housing associations, devised a strategy to block any such request filed under the freedom of information act (FOIA).
  And, we can reveal, the  discussions  began months before the results of the 10-month investigation into the IT project were even known.
   The memos also reveal that officials sought tips from government lawyers on the tactics that they could use to block disclosure.
   They suggest that the corporation started from the presumption that the results of the investigation should not be disclosed under FOIA. This is despite the implication of FOIA being that public bodies should start from the presumption of disclosure.
  The corporation’s £17 million IT modernization programme, which began in 2003, had been beset by technical problems and delays. In May 2005, following what the corporation said were “legitimate concerns” over the project’s “commissioning and implementation”, it brought in a firm of IT consultants, Methods Consulting, to review the programme.
  The review, aimed at identifying what lessons could be learnt from the project, was based on interviews with current and former corporation staff, and an analysis of project records.
  But the corporation sought advice from treasury solicitors on how to refuse possible FOIA requests for the results of the investigation and other related material within weeks of commissioning the review.
  Its chief executive, Jon Rouse, who inherited the project when he joined the corporation in 2004, asked officials – shortly after commissioning the review – to explore the legal position that could be used to defend FOIA requests.
  Two months after the review was commissioned, the corporation’s freedom of information officer, Matthew Sabourin, sent a memo to executives detailing the legal exemptions and public-interest arguments that could be deployed in the event of a FOIA request.
  He raises the possible use of the exemption in FOIA for material where disclosure would “prejudice the effective conduct of public affairs.” He writes: “The use of this exemption is usually as a last resort.”
  He said that the exemption only covered in-formation “of similar importance to prejudicing the maintenance and convention of ministers or would be likely to inhibit the free and frank provision of advice of exchange of views for the purposes of deliberation.”
  He adds: “The section of the act is unlikely to apply to the final report produced by Methods.”
  He considers the possible relevance of the ex-emption for personal information, saying: “If individuals are specifically named in the report, then such information will constitute personal data for the purposes of the data protection act, and possibly even sensitive personal data, if it clearly links individuals to the alleged commission of an offence.
  “However, [this exemption] is unlikely to be of assistance to the withholding of the report in its entirety since, even if it does cover the personal information, the report can always be disclosed in redacted form.”
  On commercial confidentiality, he writes that the application of this exemption depends in part “on whether any express agreement was made by the corporation to keep information supplied during the course of the review confidential or whether this could be implied.”
   He says that the corporation would have to decide whether “it is actually in the public interest to disclose the information and that this overrides the use of the exemption.” He sets out a series of reasons that could be deployed in a “defendable argument” against disclosure. None in favour of disclosure are mentioned.
  Under the heading, “Handling issues”, he says: “The corporation, whilst bearing in mind the exemptions in the act, needs also to consider that there is a presumption on disclosure. Where we are able, we should try to release information.
   “It might be helpful, if as a result of any review, the corporation is able to place a summary of the information, or the executive summary, into the public domain. (Although it should be borne in mind that such a disclosure might lead to requests for the full report.)”
  The memo continues: “It will be important to determine what exemptions against full disclosure is (sic) to be used, and that the summary is such that it can still be argued that the balance of public interest favours non-disclosure notwithstanding that some details of the report are now (sic) in the public domain.”
  “The corporation might want to consider at this stage, making a decision, about whether it intends to publish the report in its entirety, as this opens up the possibility of using section 22 of the act.” This section provides an exemption from disclosure for information intended for future publication.
  Sabourin distributed another memo in February 2006 to executives and the corporation’s chairman, Peter Dixon, saying: “The chief executive has asked me to look into possible exemptions in the act to disclosing the report that the corporation might be able to use.”
  “I have identified a number of possible exemp-tions. It is very difficult to give specific advice at this stage because the complete finding (sic) of the report are not known.”
  The memos contrast with a letter sent by the corporation’s chief executive to the information commissioner, Richard Thomas, who regulates FOIA in the UK, highlighting its “proactive approach in trying to be as open and transparent as possible.”
  In response to a request from the FOIA Centre, acting on behalf of Computer Weekly, for the report of the review, the corporation deployed similar arguments to those considered in its internal correspondence.
  It claimed that the report’s contents were so commercially sensitive that it was unable to publish even a redacted version of the findings. It said that the contents of the report would prejudice its commercial interests and those of its former supplier, Elonex, if made public while it is still engaged in legal and contractual negotiations over the project.
  However, despite Sabourin’s advice, it provided no evidence of any undertaking to Elonex to keep the review findings confidential.
  Elonex went into administration last June. Its assets and name were sold to a printer ribbon manufacturer that subsequently went into administration last September.
  The corporation argued that parts of the report were also exempt from disclosure because they contain details of the government’s “gateway” reviews into the IT project.
  Publication of information relating to gateway reviews, it said, would “prejudice the effective conduct of public affairs” by inhibiting the ability of civil servants to produce full and frank reports into government IT projects. This was despite Sabourin saying in his memo that using this exemption would be “a last resort” and “unlikely to apply”.
  A public body can claim this exemption if, “in the reasonable opinion of a qualified person”, there would be such prejudice. The corporation said that the qualified person in this case was its chairman.
  The issue of publication of gateway reviews under FOIA is the subject of a case due to be decided by the information tribunal shortly.
  The tribunal is considering an appeal by the government against a ruling from the information commissioner that it should publish the gateway reviews into the business case of the government’s identity-card programme.
   The corporation’s chairman, Peter Dixon, is one of two lay members of the tribunal in that case.
   The corporation has even refused to release a redacted version of the Methods report containing the parts that, by its own account, are not covered by any exemption because it “would contain very little content which would be of no real value.”
   We have submitted a complaint to the inform-ation commissioner over the corporation’s refusal to disclose the report and partial refusal to release other related material.
   The corporation refused to make any comment to Computer Weekly about its handling of the FOIA request.
Another version of this article first appeared in Computer Weekly.

FOIA Centre commentary
The corporation’s officials discussed, without, no doubt, the expectation of being found out, how to frustrate any FOIA request for this report.
  We have discovered that, while it recognised that a public body must work from the presumption of disclosing material requested under FOIA, the corporation did the exact opposite.
  It used much the same devices to block our FOIA request that had been considered privately. It did so despite the corporation's own concerns about the shortcomings in deploying those devices.
  The corporation argues, inter alia, that this report should not be disclosed because it contains details about the gateway review into its troubled IT project, and, it claims, publication would prejudice the effective conduct of public affairs.
  The information commissioner has already ruled upon this last issue, in the context of the gateway reviews of the ID-cards project. And he has ruled in favour of the requestor.
  That issue is currently on appeal before the information tribunal.
  One might therefore share our surprise to dis-cover that the corporation’s chairman is sitting on that very tribunal.

Comment on this article
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