How the Home Office withheld information from Parliament
As Straight Statistics reported on 27 September, the Home Office’s statistical analysis relating to the retention time for DNA profiles was released under the Freedom of Information Act on 23 September to Chris Hughes, who chairs the National DNA Database Ethics Group,
Yet the material released has still not been posted on the Home Office’s FoI web page. What has appeared elsewhere on the site is an updated report, produced after Mr Hughes made his request and which therefore falls outside it. The internal review carried out after the rejection of his request makes this clear: “Outside the scope of Mr Hughes’ request, the Home Office has also released an additional document providing Mr Hughes with further information relevant to his request”.
As things stand today, then, the documents he sought and which, after a review, were released, are still not in the public domain. Instead, another document written after the initial rejection of his request has been published in a way that suggests the Home Office had always intended to publish it. Maybe it did, but we’re entitled to have our doubts. (I wrongly implied in my earlier post that all the documents were available – they’re not.)
To a cynic, this looks like manipulation. Perish the thought. It’s probably just that the Home Office only updates the FoI section of its website when the mood takes it, or once a fortnight, or whatever. I believed, perhaps wrongly, that when documents were released under FoI requests they were made available to all as speedily as possible.
The internal review is an interesting document, with potential implications for the publication of other statistical analyses that underpin policy. Mr Hughes made his request on March 22, when the Protection of Freedoms Bill, which lays out Government policy on DNA retention times, had already had its first and second readings in the House of Commons (11 February and 1 March).
The Home Office delayed, sending him a Public Interest Test letter on 18 April extending the deadline for responding to his request until 23 May. The rejection letter was finally sent on 25 May, so the Home Office failed to meet the 20 working days guideline set by the Information Commissioner’s Office. By this time, the bill had completed its Committee stage, with a long gap until 10 October for the Report stage.
The rejection was on the basis of section 35(1)(a) of the act, which exempts documents produced when a policy is in the process of formulation. This is a reasonable exemption to enable officials and ministers to discuss policy without every document subsequently being disclosed. But there is a second section, 35(2)(a) that says: “Once a decision as to Government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded for the purposed of subsection (1)(a) as relating to the formulation or development of Government policy”.
A Government decision had been taken; the bill was published and on its way through Parliament, so Mr Hughes (rightly, as it turned out) assumed that this subsection would oblige the Home Office to release the documents. The internal review agrees: “At the time of Mr Hughes’ request, the Protection of Freedoms Bill was at Committee Stage in the House of Commons. As such, government policy regarding DNA retention can reasonably be said to have been decided”.
So the information had been incorrectly withheld. Reading the law ought to have made that evident to anybody given the task of making the decision. But the rejection letter simply claimed that the subsection relating to statistical information “does not apply”, without any attempt to justify the claim. The delay meant that MPs debating the bill in 20 sessions in committee between March 22 and 17 May were denied information they might have found useful.
Call me cynical if you like, but this strikes me as quite deliberate. The statistical analyses could have been used to argue that retention times longer than those proposed in the bill were justified, as Labour had previously claimed and had incorporated into its 2010 bill, Ministers defending the new bill in committee would not have welcomed that, so the foot-dragging suited their purpose.
Finally there is the issue of the final report, the only one so far available on the website. The Home Office claims it is updated and improved, and supercedes the other two. But why it was written when policy had already been decided is less clear. For completeness sake, perhaps – or maybe to have something to release without acknowledging it had been forced out of them?
Detailed textual analysis of the three reports might reveal interesting changes. To aid such detective work, I attach them all below. So at least they are published here, if not (so far) on the website of the Home Office.