Following my earlier post about the tenuous argument put forward for the recent PACE Trial Freedom of Information Act refusal, I’ve been digging a bit deeper and I think it is now absolutely clear that the ‘evidence’ cited in the refusal notice totally fails to support QMUL’s case. It also appears that it has been deliberately quoted out of context by QMUL to create a misleading impression.
Just to remind you, here is my summary of the argument used for refusing the request:
“The argument seems to go like this: in spite of the fact that this specific request is not onerous and in spite of the fact that the complainant has not previously made an FOI request, he has been adjudged to be part of a coordinated campaign to discredit PACE (because he has talked to other people about PACE on the internet). Therefore the issue has been judged not on this specific request but on the overall burden of PACE-related FOI requests on QMUL, which are accepted not to be overwhelming but have nevertheless caused ‘disproportionate irritation and stress’ to Prof White and his team and are therefore vexatious. Therefore the request for this important piece of information is refused.”
What got me looking at things more closely was this comment by Chrisb on the Phoenix Rising forum in response to my post:
“Mr Spoonseeker has referred to and dealt with the point about the sheer weight of requests but I think there is another point.
“The Guidance apparently states that “if a public authority has reason to believe that several different requesters are acting in concert as part of a campaign to disrupt the organisation by virtue of the sheer weight of FOIA requests being submitted……”
“This guidance appears to be primarily, and quite reasonably, directed at and applicable to an entirely different type of campaign where the object is to bring about the disruption of the organisation, rather than a bona fide attempt to obtain information. Has any evidence been presented with the purpose of demonstrating that the requesters intent was disruption of the organisation of QMUL rather than obtaining the information which we believe to be the real object of the request?
“Given the Commissioner’s acceptance that this particular request on its own would not impose a significant burden, the onus of proof to establish whether the person was acting in concert with others, whose intent was disruption, ought to be significantly higher.
“In order to show that the request constituted part of a campaign one might expect it to be necessary to adduce evidence of a campaign predating the request. It seems to me that the examples quoted by QMUL probably were made after the request and in response to the initial refusal. Alternatively one might attempt to show a link to subsequent requests, but as I recall it there was no such attempt.”
In actual fact I had attempted to deal with most of this issue in my earlier post as follows:
“This seems to me to be a tenuous line of reasoning and is open to question at numerous stages but there is one particular point at which it seems to me to be fatally flawed. The Commissioner’s guidance on the ‘vexatious’ clause refers not to just any coordinated campaign but to ‘a campaign to disrupt the organisation by virtue of the sheer weight of FOIA requests being submitted‘. (My bold.) I do not believe that adequate evidence has been produced to prove that there is any such campaign. The argument seems to rest on a single quote from someone on the Phoenix Rising forum: “Let’s have some more FOI requests please… I always thought FOI requests were our best weapon and we need to play that card much more strongly in all areas”. The most likely intention behind this statement is to encourage the use of FOI requests to obtain information. Patients are at a great disadvantage in trying to do this – especially in a climate where even sending letters to medical journals and talking to fellow patients on the internet are apparently seen as suspicious – and FOI requests are indeed a potentially powerful tool in this respect – except of course when they are blunted, as they presently are, by those in positions of power. An alternative interpretation might be that this person on the forum is encouraging FOI requests simply to place a heavy administrative burden on QMUL but that is an interpretation only and as this quote appears to be the only evidence of such a supposed plot – and especially as it has not been specifically linked to the complainant – it does not seem to me that a case has been made.”
So the case is already shaky to say the least. However what had not occurred to me was Chrisb’s point about timing. Was this quote encouraging additional FOI requests subsequent to this particular request? I decided to test this out by tracking down the quote.
I’m pleased to report that this was easy. The PR Forum has an excellent search engine. The quote is here. It was made by Mark on 1st Nov 2012, which presumably predates the FOI request with which we are dealing. Yet when you read the quote, you will see that the date is irrelevant. The wording is sufficient in itself to blow the QMUL case out of the water:
“Big up to the forum member who achieved this. Let’s have some more FOI requests please, informed by the same factors that achieved success here – I’m sure there’s lots more data which would be…interesting…to have on public view, and indeed the entire dataset should be released in a timely fashion according the MRC guidelines, so there’s plenty of potential here. I always thought that FOI requests are our best weapon and we need to play that card much more strongly in all areas, so I look forward to seeing the secrets that disclosure may reveal.”
Notice that QMUL only quoted part of this: “Let’s have some more FOI requests please… I always thought FOI requests were our best weapon and we need to play that card much more strongly in all areas”
The part they quote is open to the possible interpretation that the intention is to overburden QMUL with FOI requests, but when you read the whole paragraph it couldn’t be clearer that that is not the case. More FOI requests are being encouraged with the specific intention of releasing more data, exactly as the Act intended. This was previously in doubt only because QMUL cherry-picked part of the paragraph with – one can only assume – the deliberate intention of misleading the Commissioner.
I have to admit that in spite of everything I know about the way the PACE Trial has been misconducted and then spun misleadingly in the media, I am flabbergasted by the sheer brazen cheek of this deliberate misquotation. There is no evidence of a campaign “to disrupt the organisation by virtue of the sheer weight of FOIA requests being submitted”. When you read the quote in context, it is clear that the intention was simply to get access to the data: to get to the truth about the trial.
This quote, which had not in any case been linked t0 the complainant (i.e. the guy who made the information request) is the only evidence produced to support the idea of this supposed campaign of disruption. It appears in paragraph 27 of the refusal notice.
For the sake of completeness, I should mention that there is one additional quote from the Phoenix Rising forum which is apparently cited to suggest a hostile attitude to the PACE authors. This appears in paragraph 46 of the notice. But paragraph 47 accepts that this quote has nothing to do with FOI, let alone any campaign of disruption through the use of FOI requests, so it has no bearing on the supposed existence of such a campaign. Having looked up the original quote it simply refers to how the careers of the PACE authors will suffer once biomedical research – the Rituximab trial is specifically cited – further reveals the true nature of ME. The full quote can be found here.
According to paragraph 11 of the refusal notice, “QMUL provided numerous links to information available on the internet which are not included in this notice”. Is it possible that some of these provided evidence of the supposed campaign of disruption? There is no reason to think so. In view of the inadequacy of the quote in paragraph 27, a couple of phrases taken blatantly out of context, it is reasonable to suppose that any more credible quotes would have appeared in the notice.
So it seems to me that the tenuous thread of argument used for this refusal does not hold together. At its weakest point, it hinges on the existence of not just any campaign but “a campaign to disrupt the organisation by virtue of the sheer weight of FOIA requests being submitted”. Yet no evidence has been produced of any such campaign. The only quote supplied in support was taken blatantly out of context in what appears to be a deliberate intention to mislead.
I really hope the complainant appeals against this ruling. If there is any justice at all in the process, he will be successful. And if the Commissioner is shown how that quote was deliberately cherry-picked to mislead, might he start to understand why patients are so sceptical about the conduct of the trial and are so keen to see the data for ourselves?
6 thoughts on “Door to Freedom Revisited”
Ridiculous how easily these people ran rings around the supposed public champion of freedom of information! He should be ashamed. 😦
I think it comes down to the Emperor’s New Clothes syndrome. There is disbelief among the establishment that other establishment figures could possibly have done what we say they’ve done i.e. deliberately manipulated and misrepresented the results of the study. They don’t see because they don’t believe it’s necessary to look. As they say in the Refusal Notice itself: “There had been debates in the House of Lords mentioning PACE; there had been complaints to The Lancet, where the main trial results were first published, and to the Medical Research Council (one of the funders of the trial). These had all been dismissed.” The implication is that our concerns were dismissed because there was no substance in them. The truth is they were dismissed because no one thought they required proper consideration. This FOI refusal is just another example of the same mindset.
It is worth reading the ICOs own guidance on campaigns and vexatiousness.
Click to access dealing-with-vexatious-requests.pdf
Particularly look at
Authorities must be careful to differentiate between cases where the requesters are abusing their information rights to engage in a campaign of disruption, and those instances where the requesters are using the Act as a channel to obtain information that will assist their campaign on an underlying issue.
61. Some examples of this might be where:
The public authority’s response to a previous request was unclear and the requester has had to submit a follow up request to obtain clarification.
Responses to previous requests contained contradictory or inconsistent information which itself raised further questions, and the requester is now following up these lines of enquiry.
The requester is pursuing a legitimate grievance against the authority and reasonably needs the requested information to do so.
Serious failings at the authority have been widely publicised by the media, giving the requester genuine grounds for concern about the organisation’s actions.
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Thanks for your continued blogging on this. I agree that QMUL’s submissions are very weak, and I believe that the ICO should have challenged the submissions. I think it’s a shame that this FOI request won’t be taken to tribunal because I think QMUL’s claims would have easily been shown to be weak and misguided.
For your interest, this is the ICO’s guidance and policies on using the ‘vexatious’ clause…
Click to access dealing-with-vexatious-requests.pdf
Posted on their website here: https://ico.org.uk/for-organisations/guide-to-freedom-of-information/refusing-a-request/
The document clearly explains what ‘vexatious’ means in terms of the FOI legislation and when the clause should/shouldn’t be used. I believe it is clear that the clause was used inappropriately here. I could quote so much from the document, but I won’t because I’d end up quoting most of it.
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Thanks to Adrian and Jag for your comments and info. It’s been brought to my attention that the deadline for the appeal has passed so that’s not going to happen. A shame, as there would have been strong grounds on which to overturn the judgement, I think. As Jag says, the clause was used inappropriately here. However I can hardly blame the complainant if he’s had enough of the whole business. I keep coming back to what I said to Steve (above) about the Emperor’s New Clothes – and this lies at the root of our difficulties in getting acknowledgement of the failure of PACE – those in authority start from the assumption that such eminent people as the PACE authors cannot be wrong so they don’t take an objective look at the evidence.
It would be so helpful and supportive if the signatories of the open letter to the Lancet, all eminent clinicians and academics, were able to contact the ICO about this.
Thank you for another excellent blog, Mr Spoonseeker.
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