Wendygate and the Staunch Guardians of the public weal – Part 4 of 4: I’ve won but I’ve lost

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by David Ferguson

It is March 2010, and I’m waiting anxiously to receive my copy of the Information Commissioner’s just-released judgment on my first FoI request. Will he rule in my favour? Will he order the Electoral Commission to cough up the statements that the Alexander campaign team provided to explain why they changed the source of the illegal Paul Green donation to Glasgow company Combined Property Services?

Actually I’m not waiting at all, because I’m not even aware that he’s released his ruling. He did send a copy to me by registered post, but unfortunately I’m half-way round the world. Luckily I find all this out only two weeks into the 28-day appeal period, and ask for an electronic copy of the judgment.

In trepidation I begin to pore through it…

“…the Commissioner considers that there is a strong public interest in greater transparency in this case…” Yay!

“…in the circumstances of this case, the Commissioner has given particular weight to the arguments in favour of greater transparency and increasing public understanding of decisions made by public authorities…” Yay!

“…there can only be public trust and confidence in the public authority if its decisions are adequately explained and sufficiently transparent…” Yay!

“…the lack of a clear and definitive explanation for the public authority’s decision not to refer the case to the Procurator Fiscal is the most compelling factor in this case… the Commissioner has decided that on balance the public interest favours further disclosure in this case.” Yay! Yay! 

“The Commissioner has decided that the public interest would be served by disclosure of further information… in view of the public interest in accountability the Commissioner has decided that the notes of interviews conducted with two particular individuals should be disclosed…”

Yay! Hooray! I’ve won!

But wait. There’s more. Something about FOI s.40(2). Stuff about the Data Protection Act. A ’statement’ that was read out to the interviewees…

“This would suggest that those individuals who were interviewed during the course of the investigation would have a reasonable expectation that the content of their interviews would not be disclosed… in the particular circumstances of the case, the Commissioner has decided that information which is not exempt by virtue of section
30(1)(a)(i) is in any event exempt under section 40(2) of the Act…”

Oh. Boo. That all means I’ve lost.

But where did all this stuff about the Data Protection Act come from? Nobody in the Electoral Commission mentioned Data Protection for the first two years of the case.

It’s true. The Data Protection arguments emerged in a letter that was sent by the Electoral Commission as part of its submissions to the Information Commissioner on 17th July 2009. I was never given a copy of the letter. I never knew about the arguments, and I never had a chance to try to counter them.

It’s all here in the decision…

“The public authority also explained that several of the witnesses were informed by
its staff to the following effect : 
‘The [Electoral] Commissioner will treat this interview as confidential and would not voluntarily disclose information obtained in the interview. However, there may be circumstances where there is a statutory requirement to disclose the content of the interview (for instance, court proceedings) where it would be necessary to do so.’…”

So the Electoral Commission started by providing the subjects of its investigation with an assurance that under no circumstances would it disclose any of the information they provided, unless it was forced to do so by the demands of a criminal trial.

But… But… But the Electoral Commission itself had the absolute power to decide whether or not there was ever going to be a criminal trial…

I am beginning to develop a better understanding of why Ms Alexander looked so cocky at the outset of the Electoral Commission’s investigation, and even cockier at its conclusion. That ‘statement’ of theirs could almost have been designed to enable the invocation of the Data Protection Act. Damn those cunning foxes at the Electoral Commission!

But nothing is ever as it seems.

Fast forward eight months, and now I’m reading the decision of the Tribunal in the First Tier Appeal against the Information Commissioner’s judgment. During the Appeal Hearing there was a ‘closed session’ from which I was excluded, where they discussed the specifics of the information that I asked for and that had been withheld. Let’s see what Judge Bartlett has to say about the Electoral Commission’s cunning statement…

“Unfortunately the Commission did not record details of the making of the latter statement, so that its precise wording is not available to us; nor were we told whether it was made before, during or after the interviews; nor is it known for certain to which interviewees it was made…”

Eh? The ‘wording’ of the statement looked pretty ‘precise’ to me. But there’s more…

“The Information Commissioner and the Electoral Commission relied also on the oral statement said to have been made to several interviewees concerning confidentiality. But the evidence that was placed before us did not enable us to conclude that this statement was made to any particular individual, or that it was made before interviews proceeded. We found no trace of such a statement in any of the interview notes or in the correspondence conducted in the same time period as the interviews…”

Well. Indeed. “No trace of such a statement…”

I’ve appealed the First Tier Tribunal’s decision. One of my arguments is that I wasn’t told during the hearing that it had transpired that there was no evidence to support the claim that the Electoral Commission’s cunning ‘Data protection statement’ had ever existed.

I also wrote to the Electoral Commission again under FOI, and I asked them to tell me when the statement first appears in their papers, and in what document. The 20-day response time has just passed, and I’ve received an email assuring me of their best intentions and telling me that I’ll get my answer at some as-yet unspecified time in the future.

My guess is that the statement’s big debut will turn out to be in a certain Appendix (which I’ve still never seen) to a certain letter that was sent by the Electoral Commission to the Information Commissioner on 17th July 2009, eighteen months after the Alexander investigation was concluded and I started my FOI case.

Anybody want to bet a beer against that?

 

Where things stand:
Mr Ferguson did indeed achieved a partial victory and the electoral Commission was forced to disclose quite staggering information.  Earlier this month Newsnet Scotland revealed that one or more members of Wendy Alexander’s campaign team had admitted to the Commisison in the course of its investigation to altering the source of the donation from Paul Green to Combined Property Services.

The reason given to the Commission was that the person did not know if the sum had been a donation or a pledge – quite what this had to do with the altering of the source is not clear.  However the Commission decided not to pass the matter onto the prosecution authorities.  The Commission still refuses to reveal who admitted to altering the document and also refuses to publish the actual statements given in evidence.

Mr Ferguson’s battle to have all information out in the open is continuing and Newsnet Scotland will provide an exclusive update if and when new information emerges.

Wendy Alexander and Charlie Gordon both resigned when the scandal broke, Ms Alexander as leader of the Labour group and Mister Gordon as Labour’s Transport spokesman.  Today Labour’s Transport Spokesman is the salf same Charlie Gordon and Wendy Alexander has been installed in the critical role of chair of the Holyrood Committee that will be tasked with scrutinising the ConDem coalition’s Scotland Bill that will see Scotland’s tax and borrowing powers altered – quite an achievement for someone whose campaign team so disastrously failed to manage a few simple donations.

Related articles:
Electoral Commission Confirm Illegal Donation Name was Altered

The Scottish Media – What is the extent of labour’s influence

Labour and the ‘smear gone wrong’ !!