Epic three year FOI battle to release suppressed Home Office drug strategy evaluation reaches its denouement

Update: 13.30pm 21 January

We are delighted to announce that the Home Office has finally made the report available: Drugs Value for Money Review July 2007 Report . See below (end) for an update commentary    



Update 2: 26 June


New information on this case has been inadvertently revealed by the Home Office: see Home Office internal document reveals bunker mentality of secrecy and suppression

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Introduction

Transform is not unique in being given the runaround during the process of making an application under the Freedom of Information Act. But even we were surprised by the absurdity of what ensued when we requested a seemingly innocuous report in mid 2007.

Danny Kushlick, Head of Policy at Transform, intermittently spent the next two and a half years jumping through a series of FOI hoops to get hold of a document that most who have seen it acknowledge is indeed fairly innocuous, in so far as it is not dissimilar to public domain publications by the same author, and was presumed to consist largely of data publicly available via the Home Office Development and Statistics site, and elsewhere, for anyone with the determination and know-how to hunt it down (see update above - this has proved to be the case). There are no state secrets here, just some fairly straightforward statistics and value for money analysis.

Nor was this the first time Transform has faced this sort of hurdle. In 2003 Tony Blair requested a report on UK and international drug policy from his Number 10 Strategy Unit. Transform's FOI requests for this document were met with a series of rejections, firstly on the basis that it was a 'private piece of work' and later that it contained 'security sensitive' information. When it was finally leaked in full to the Guardian in 2005 it became clear that it did not contain anything remotely security sensitive - indeed the 50 or so redacted pages in the censored version that was belatedly released by the Cabinet Office appeared to be entirely random (background and document summaries here).

What follows is a time line of the process that Danny had to go through in order for Transform to access factual and statistical research material of the kind that democratic governments ought to make available as a matter of course.

We should perhaps not be surprised; punitive responses to drugs are rooted in distinct moral ideologies and political posturing, not evidence of effectiveness. Any juxtaposition of the rhetorical prohibitionist fantasies with empirical reality is untenable for a Government deeply committed to a 'war on drugs'. In the context of a rhetorical and actual war on drugs, especially one that has evidently delivered increasingly counterproductive outcomes, despite ever more resources being poured into it, the Government's only recourse is to propaganda. Anything, certainly anything based on credible academic research, that might contradict the view that the war is being won must be either suppressed, spun or sacked, lest reality be exposed to meaningful public scrutiny, at which point the whole prohibitionist paradigm is threatened.

This sorry FOI tale could not make that political reality more clear.


Freedom of Information Request Time Line

July 2007

The ten-year drug strategy review is announced, and a review consultation process for the next ten-year strategy launched – an event of potentially huge significance for drug policy in the UK.


August 2007

Transform felt that this public review and consultation process, billed by the Home Secretary as the ‘largest ever public consultation on tackling illegal drug use’, would usefully be informed by any research the Government had undertaken or commissioned to evaluate the effectiveness of the different elements of the strategy, on various criteria.

The Government has made repeated commitments to ‘evidence based policy’ – so we asked to see the evidence - not least the evidence they were nominally basing their decisions on.

Transform was aware that various unpublished research existed, although we lacked specifics beyond information that a ‘value for money’ study had been commissioned by the Home Office to inform its strategy review process. This piece of work – undertaken by independent academics (including the highly respected Christine Godfrey from York University) – was precisely the sort of objective evaluation that should be informing the public review and consultation process. As this was publicly funded research, was purely evaluative and did not contain advice to ministers, and did not contain security sensitive information, it seemed to be clearly in the public interest for it to be made available to inform the public strategy review/ consultation process.

As this study was unpublished (our direct requests for it had been summarily rejected), and because we were unclear what other potentially useful research was also languishing unpublished in the Home Office archives, on the August 2nd 2007 we make a broad-scope Freedom of Information request to the Home Office for copies of:

• All unpublished research undertaken or commissioned to inform the strategy review process.
  
  
• All unpublished research undertaken or commissioned by the Home office since 1997, including research that was not completed or is still not completed, into the effectiveness and/or efficiency of the Government's Drug Strategy in preventing drug use and drug harms, or reducing drug-related offending.
  
  
• Any unpublished research undertaken or commissioned by the Home Office since 1997, including research that was not completed or still is to be completed, which examines the value for money of the Government's Drug Strategy.

We additionally asked for details of any other research (not the research itself):

• undertaken or commissioned by the Home Office since 1997, including research that was not completed or still is to be completed, into the effectiveness and/or efficiency of the Government's drug treatment programme; or into the effectiveness and/or efficiency of the Government's drug education/prevention strategy in reducing drug use and drug related harms amongst young people
  
  
• any unpublished options appraisals undertaken or commissioned by the Home Office since 1997, including any that were not completed or are still to be completed, into the Government's Drug Strategy

September 2007

In an experience that was not to be repeated, we received a rapid response to this initial FOI request. In what would become more a more familiar experience, the request was rejected. The reason given was that:

"We have estimated that the cost of answering your requests would exceed the £600 limit and we are therefore unable to comply with it"

this was made on the grounds that:

....the Home Office is not obliged to comply with any information request where the prescribed costs of supplying you with the information exceed £600. The £600 limit applies to all central government departments and is based on work being carried out at a rate of £25 an hour, which equates to 3 1/2 days work per request.

(more detail/discussion on this first rejection here)

August – December 2007

Instead of publishing an evidence based evaluation and review objectively considering the successes and failures of the previous ten years, the Government produces a consultation document that is a quite shameless piece of political propaganda (critiqued here and here in detail as part of Transform’s consultation submission). It receives widespread condemnation:

• In November it is savaged in the House of Lords
  

• It is then criticized in unusually strong terms by the Advisory Council on the Misuse of Drugs (which remember, also operates within the Home Office) which notes that:

"it is unfortunate that the consultation paper’s ‘key facts and evidence’ section appears to focus on trying to convince the reader of success and progress; rather than providing an objective review and presentation of the current evidence. The ACMD found the consultation paper self-congratulatory and generally disappointing.’

‘It is of concern that the evidence presented, and the interpretation given, are not based on rigorous scrutiny."

• Following a complaint from Transform, the consultation document is also condemned by the Government’s own Statistics Commission which accused the Home Office of spinning the data to make it look more favorable and failing to ‘provide a balanced presentation of the relevant statistical and other evidence’. This is covered by the Guardian newspaper: ‘Whitehall accused of drug cover up’

October 2007

The Government’s public drug strategy consultation process closes, with the various Home Office strategy evaluations requested by Transform resolutely unpublished and unable to inform public debate or any aspect of the review consultation process.

The Observer reports on the obvious failings of the consultation process: Drug strategy debate ‘is a sham’


February 5th 2008

Following a separate FOI request to the Treasury, Transform secures the release of a previously unpublished ‘Stock Take of Anti-Drug Interventions and Cost Effectiveness’.

The overall impression from this document is one of quite staggeringly poor evaluation, based around ill thought out targets, themselves based on meaningless process measures or proxy measures, all built around a rudderless, and politically determined policy. The quality of outcomes, even based on the data available, clearly does not support the strategy as it is presented.

This is most obvious regards supply side interventions which, despite costing between £1 billion and £3 billion a year even in 2001, can demonstrate no evidence of effectiveness whatsoever;

“There is little evidence on cost effectiveness of CJS activities. However, while insufficient to form robust conclusions that little we do have does not offer strong support”.

This received Coverage in the Economist (09.02.08): ‘Hard to Swallow’


February 7th 2008

Despite failing to secure release of the relevant documents in time for the consultation and review process a renewed FOI request is made to the Home Office, this time specifically for the single named document, the 'value for money' study (with which Christine Godfrey was associated) - to avoid any potential for the £600 cost exemption to be re-deployed. A response is promised by March 6th.


February 26th 2008

The new ten year drug strategy is published; aside from some populist window dressing it is the same as the previous strategy. Transform’s press release states that:

“The new drug strategy arrives after ten years of disastrous policy failure, yet during last year’s sham consultation and review process the Home Office utterly failed to acknowledge failure or meaningfully engage in a debate on policy alternatives. Instead, success has been claimed with a shameful parade of cherry picked statistics and Home Office spin.”

May 15th 2008

More than two months late Transform finally receives a response from the Home Office to the February 2008 FOI request (refined from the August 2007 FOI request). It states that:

“We have very carefully considered whether the material should be disclosed but we have decided that this is exempt from disclosure by virtue of section 35 (1) (a) of the Freedom of Information Act.”

The basis for this rejection is given in full as follows:

“This exemption is a qualified exemption and provides that information can be withheld because the material was used for the formulation of Government policy. Our reason for this is because the work informed the policy development work undertaken by the Home Office and Other Government Departments in formulating and publishing the new Drug Strategy. The material is also reflected within the published appendices within the new strategy document pertaining to the most recent evidence review on the strategy and on the resources being invested by Government Departments for delivery of the Drug Strategy.

Section 35 is a qualified exemption under the Freedom of Information Act and therefore requires the public interested balancing test to be considered, I have outlined this below.

Public interest in favour of disclosure:

In favour of the release of this information is the general public interest in openness and transparency in policy making and discussion which may lead to increased trust and engagement between the public and the government. Such openness makes government more accountable to the taxpayer in terms of the quality of decisions taken, and the spending of public money. In addition openness enables individuals to gain a better understanding of decisions which directly affect them, and therefore make informed contributions to public debate.

Public interest against disclosure:

Reasons in favour of withholding the information under section 35(1)(a) are that advice should be broadly based, there may be a deterrent effect on experts or stakeholders who might become reluctant to provide advice because it might be disclosed. Further reasons are that the impartiality of the civil service should be protected; it might be undermined if advice was routinely made public as there is a risk that officials could come under political or public pressure not to challenge ideas in the formulation of policy, thus leading to poorer decision making. The analysis work helped inform the development work on the new Drug Strategy and is reflected within the evidence review and resources appendices within the new strategy document.

On the basis of the factors outlined above, I am of the opinion that the balance of the public interest currently favours withholding this information under section 35.”

It is important to be clear that the requested document was an independent academic evaluation of the drug strategy's effectiveness as related to its costs. It was factual/statistical analysis, not advice to ministers, and it had absolutely no bearing on the impartiality of the civil service - who were not responsible for it.

The reasons given for withholding it were clearly spurious. On May 19th Transform therefore took the only available course and requested that the decision be subject to an internal review.


June 26th 2008

The Home Office informs Transform, in response to a follow up inquiry, that the original request for an internal review has been ‘lost’. August 21st is given as the date by which a full response will be provided.


August 21st 2008

The Home Office informs Transform that the review process is taking longer than anticipated and ‘with regret’ the date for a full response is moved back to October the 2nd.


October 6th 2008

The Home Office informs Transform that the review process is taking longer than anticipated and ‘with regret’ the date for a full response is moved back to November 2nd.


November 14th 2008

The Home Office informs Transform that the internal review report is complete but ‘still in the process of being approved’


December 3rd 2008

The internal review finally reports back with a detailed and highly technical 9 page letter concluding that whilst the non disclosure of document under section 35 (1) (a) of the Freedom of Information Act, at the time (May 2008) was applied correctly, it is now considered that these stipulations no longer apply. Although this shift would only apply to a ‘redacted’ version (some content still not deemed in the public interest for security reasons), seemingly, progress at last :

“In summary, I consider that the exemption provisions of s35(1)(a) were correctly applied to the information held at the time your original request was being handled. Now that the 2008 Drugs Strategy has been approved and published, and given that this information in the analysis is both statistical and factual in nature – i.e. not solely opinions or thoughts, but based on hard-facts and calculations – the provisions of this exemption, the supporting harm, prejudice and Public Interest Test arguments no longer favour withholding this information under this exemption"

However, the review also concludes that non-disclosure of the document can and indeed will be maintained for the entire document on the basis of (the previously unmentioned) section 36 of the FOI act which covers ‘Prejudice to the effective conduct of public affairs’. Transform also learn that invoking section 36 of the FOI requires ministerial approval, and that such approval has been sought and granted.

The letter informs Transform, after a lengthy (and in the context rather unnecessary) discourse about why drug policy data is of such interest and importance to the public, that:

“It is of little or no doubt that the information contained in the analysis would be of great interest to a large number of people. What is of interest however, even to a majority percentage of the population, is not necessarily in their best interests to disclose.”

The specific reasons given for why non-disclosure is in the public’s best interest (requiring a ministerial level invoking of section 36) are that firstly:

“given that this strategy is still in the early stages of being implemented, it is felt that the likelihood of prejudicing the delivery of all areas of this strategy is fairly significant at this time.

One of the key considerations here is that the premature disclosure of the preliminary thinking behind this strategy may end up closing off better or alternative options that might become available because of adverse public reaction.”

And secondly that:

“appropriate expert advice might not be sought in the future because of a possible reluctance of those who might supply it to engage in a debate where their contribution might not be disclosable. This would ultimately be likely to lead to poorer decision making as the relevant contributions to support that process may not be forthcoming.”

December 4th 2008

Transform entirely rejects both of these arguments as both unfounded and mis-applied, and immediately appeals the Home Office decision to the Information Commissioner’s Office.


August 27th 2009

The Information Commissioner makes a full review of the case including a number of discussions with the relevant Home Office officials, finding against the Home Office, ordering them (and legally obliging them under the FOI act) to revisit the decision to withhold release of the document, the presumption being that release will be forthcoming on the basis that the public interest arguments made were inadequate to justify non-release.


November 20th 2009

The Home Office finally concedes, and agrees to release (a redacted version of) the report.

But........not until after March 2010

Still maintaining that the Section 36 exemption was valid at the time it was invoked (no mention is made of the section 35 exemption deployed previously) the Home Office state that:

“In light of the passage of time since the development of the 2008 drug strategy, which was informed in part by the Christine Godfrey report, we now consider that the majority of the report may be disclosed.”

But that:

“After careful consideration we have decided that some of the information contained within the report is exempt from disclosure by virtue of section 23(1) of the Freedom of Information Act. This provides that information supplied by, or relating to, the bodies dealing with security matters, is exempt from release. Section 23 is an absolute exemption, and as such no further consideration is required.”

The reason given for this delay until an unspecified date after March 2010 is that the National Audit Office (NAO), is due to publish a report of its own on local efforts to combat drugs in March 2010 and the Home Office says that to have two reports about drugs out at the same time “risks misinterpretation of the findings of the [NAO] report”

As the Economist coverage of this latest development notes (‘Inconvenient Truths’ Dec 3rd 09):

‘This is believed to be the first time that a public body has openly refused to release information in order to manage the news better’.

Richard Thomas (who stepped down as information commissioner in June 09), speaking to the Economist, questioned the novel defence:

“Certainly my office was always quite sceptical of anything which said publishing information is going to confuse the public. If that’s the case, normally you need to put out some extra material alongside it to provide adequate explanation. It’s not a reason for withholding something.”

Also speaking to the Economist Sir Alan Beith, the chairman of the parliamentary Justice Committee, which oversees the FOI act, said of the Home Office’s excuse:

“That’s really scraping the barrel. On those grounds you would have to ban the various hospital reports that are coming out at the moment [see article] because the public are confused about that too. It’s not an argument for censorship, it’s an argument for an even more open and clear debate.” The Home Office was making “a quite ridiculous attempt to hide from freedom of information,”

The Economist also notes that ‘the legality of the decision is also in doubt, after the department admitted that its refusal to release the document had not been approved by a minister, as is required by law. A Home Office spokeswoman called it an “administrative error”. Retrospective ministerial authorization was being sought as The Economist went to press.’


December 14th 2009

Following the Economist coverage, the Information Commission informs Transform that the Home Office has now agreed to release the document before the NAO document is published. It has requested that it is released before Christmas.


January 2010

Home Office informs Transform that the document will be released on 21 January 2010 – two and half years after the initial request, and two years after the public consultation on the drugs strategy it could usefully have informed has closed.

• Check the Transform blog in the next few days for updates on this story - and a full report on the (un-redacted portions of) the report when we have finally read it.
  
  
• And finally, if anyone reading this far has an unredacted version of the report - please send it (anonymously if you prefer) to Transform (info@tdpf.org.uk). Seriously, we are all grown ups here and this has gone on for far to long.

Update: 13.30pm 21 January:  It's worth a look to discover what the Home Office thinks is too sensitive for public viewing.

What it shows is a basic lack of meaningful evaluation, and that what little evidence they do collect is clearly unable to demonstrate effectiveness or value for money, especially on the enforcement side where most of the resources are expended. It provides a stark contrast to the absurd rose-tinted picture painted by the 2007 consultation document produced by the Government (see below). That we were presented with that piece of shameless propaganda and not this (only now released) academic research is scandalous and should rightly be a source of anger and concern to all in the drugs field involved in the review consultation process, regardless of their policy views.

Nor were the problems of poor evaluation/data and poor outcomes that the report demonstrates previously unidentified. The CSR Treasury stock take from 2001, released under a separate Transform FOI request (see Feb 5th 2008 entry in the Time line below), tells an almost identical story. They had 6 years to address these obvious failings (in data collection and evaluation - let alone outcomes) and utterly failed. There can be no excuses.

The report also demonstrates that the various justifications (see below) given for its suppression during the strategy consultation, and for the following 2 years, were entirely spurious. The Home Office have behaved pathetically, like children in a playground with a secret, and treated the public with contempt in the process. They still are; note the ridiculous redaction of 'SOCA' throughout, except in a footnote referring to one of the redactions (they can't even do censorship properly).

This saga was an attempt to conceal a piece of research that showed the policy in an unflattering light, and its censorship was purely political; a disgrace for the Government and particularly for the Home Office and ministers directly involved.

We will provide a more detailed analysis later, but worthy of note is the item in table 3 on page showing expenditure by police in 05/06 - £2 billion out of £3 billion total expenditure, £1.7 billion of which is 'indirect costs of dealing with drug-related crime'. It looks suspiciously as if it fits with Transform's analysis that enforcement creates the very costs that prohibition is supposed to reduce.

Danny Kushlick said:

"The withholding of this report demonstrates yet again how the Government is committed to the rhetoric and fantasy of success of the current strategy, whilst doing its damnedest to keep the truth out of sight of the public. The edifice of prohibition comes crashing down as soon as evidence is pitched up against it. Ultimately we are being duped into supporting a policy that is demonstrably failing to deliver anything even approximating to value for money"

Previously on the Transform Blog:

• CCJS report: Home Office suppresses research that contradicts ministers
  

• Home Office refuses to release strategy evaluation research - September 2007
  
  
• New UK Drug Strategy publication: background press briefing - February 22 2008
  
  
• Transform FOI requests; old reviews released, latest ones withheld (also in the Economist) February 07 2008