Internal ICO correspondence reveals that the Information Commissioner was asked by the Ministry of Justice to justify Graham Smith’s (the Deputy Information Commissioner) pay rise. The ICO’s response was that Mr Smith had additional responsibilities, in particular it was claimed that:

“Graham Smith is increasingly consulted by the Cabinet Office and others on specific FOI cases”

Mr Smith is the Deputy Commissioner and Director of Freedom of Information for the ICO and “has lead responsibility for promoting and enforcing Freedom of Information.” In simple terms, he is the top boss of FOI regulation. If Mr Smith is giving advice to the public authorities on specific FOI cases which later come before the ICO as the regulator then it isn’t difficult to see that a potential conflict of interest could arise. Of course if Mr Smith kept detailed records of the cases he had advised upon and the advice he had given then conceivably it would be possible to put in place adequate safeguards to ensure he was not involved in signing off the relevant Decision Notices. In view of his wider responsibilities for FOI enforcement the situation would remain problematic.

No records were kept
We now know that Graham Smith keeps no records at all of the advice he gives:

ICO: “We have conducted searches of the ICO’s records and no information is held.

Graham Smith: “My meetings and discussions with the Cabinet Office occur only on an “as and when” basis. We do not have regular scheduled meetings. We never have a formal written agenda or minutes. When we do meet or talk on the phone the discussions are not always about specific cases. When they are, it could be one or any number of cases. Those cases may or may not be with the ICO. They might be Tribunal appeals or requests which have not and may never reach the ICO.” [Insert your own sarcasm here]

As no records at all are kept we can conclude that there are no adequate safeguards in place to manage the conflict of interest that arises from Graham Smith’s acting as both adviser and regulator to the Cabinet Office on specific FOI cases. Mr Smith should not be giving secret advice on live cases whilst working for the regulator.

Principles of public life
As a public official Graham Smith is subject to the 7 principles of public life. In particular, he is required to “… declare and resolve any interests and relationships” and to act “in an open and transparent manner.” He has done neither with respect to his advice. He is also subject to the following requirement:

“Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.”

By not keeping any records whatsoever of his actions in advising the Cabinet Office Graham Smith has made it impossible for the public to scrutinise his actions or to hold him accountable for his advice.

Duty of Candour

The ICO is a party in all FOI Tribunal cases and Mr Smith has acknowledged that the cases on which he he gives advice “might be Tribunal appeals”. The Hearing Bundles – Good Practice Guide 2014 for FOI/EIR cases (not available online!) states that:

“The ICO is of course aware of their duty to put before the Tribunal all relevant evidence regardless of whether it is favourable to their own case or not – CIS/0473/2007 paras 36-37, a decision of Judge Jacobs, when a Social Security Commissioner”

If Graham Smith is discussing Tribunal appeals with the Cabinet Office and the Cabinet Office happen to reveal facts unfavourable to the Cabinet Office’s case then Christopher Graham would appear to have a duty to ensure the Tribunal is made aware of those facts. Keeping no records when discussing active Tribunal cases whatsoever does not sit at all well with the ICO’s duty of candour.

Independence from Government

The ICO used to have a “.gov.uk” domain name but moved to a “.org.uk” domain to ensure it is perceived by the public as being independent of government. The ICO indeed works in mysterious ways. On the one hand the ICO is spending our money to create a public veneer of independence online whilst at the same time spending more of our money on Mr Smith’s pay rise for giving secret advice to the Cabinet Office.

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