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Transport for London breaks the law

Nameandshame Over at Adrian Short's blog, a shocking story from someone who, it seems, has every sympathy for TfL.

Short submitted an easy-to-answer Freedom of Information request to TfL about usage of Boris Bikes (he is a big fan and, having helped to promote them, wanted to plug their success).

But…

if I want to get a response to my FOI request from TfL I am asked to enter into a contract with them whose terms include:

    "2.1.2 [You shall] only use the Transport Data in accordance with these Terms and Conditions and the Syndication Developer Guidelines, and not use such information in any way that causes detriment to TfL or brings TfL into disrepute. The rights granted to You under these Terms and Conditions are limited to accessing and displaying or otherwise making available the Transport Data for the purposes stated by You in Your registration."

So not only is TfL’s contract explicitly asking me to state my motive as a precondition of access, it also constrains me from using the information for any other purpose and arguably prevents me from using that information to criticise TfL, thereby causing it “detriment” or bringing it into “disrepute”. If I don’t agree to this they can deny access altogether and if I subsequently break the agreement in their view they can revoke access. This is a funny kind of free information.

That is absolutely disgraceful. No public authority has the right to withhold data on the basis that it might be used to the detriment of that authority. The data doesn't "belong" to the authority – it belongs to us, the public, who paid both for the services about which it is collated and for the collation. Part of the point of the Freedom of Information Act is that it might reveal something to the detriment of the Authority in question – that's the purpose of facilitating openness and scrutiny in the first place. Without that capacity, if the data can only be used for positive purposes, then those submitting queries are simply unpaid press officers for the Authority concerned.

We at Big Brother Watch are extremely concerned by this development. We use FoI for our research – whether it be into the number of CCTV cameras controlled by councils, the ability of officials to enter private property, monitoring microchips being inserted into millions of dustbins, breaches of privacy in medical records, the retention of DNA samples from innocent people on the state database, covert surveillance by local councils, CCTV cars operating on our streets, or money spent on surveillance cameras by local authorities, all of our reports have depended on the Freedom of Information Act to compel Authorities to disclose information about their activities. Wherever you stand on the issues I've just listed, and the issues which might form the subject of future research we would hope to do using the same legislation, presumably you agree that there should be such discussion, per se. After all, they're spending our money and their behaviour governs the way we live, so we should know about it.

By and large I'm very pleased to say that most authorities comply with their obligations under the Act when responding to us (and we happily name and shame those that don't). But if TfL behaves likes this and can get away with it, then others will follow. Our research will become more difficult to conduct, or simply impossible. So will that of other organisations that hope to hold government to account. That's why this is so serious. We do (he said immodestly) enjoy some success in the media in doing reactive stories based on news emerging elsewhere, but the real purpose of any organisation like ours must be to carry out proper, original research. Behaviour like TfL's makes this very difficult. So – this is a call to arms. Please link to this blog post or to Adrian's original write-up on Facebook, on Twitter, on any blog to which you might have access. If you care about the future of Freedom of Information Act – or about the future of information, or the future of freedom – then it's up to you.

By Alex Deane

Hat tip: Dick Puddlecote

*UPDATE*

Transport for London has contacted BBW. A TfL spokesperson said:

“Transport for London takes its obligations under the Freedom of Information Act (FOI)  extremely seriously and we provided a response to this FOI within 20 working days making clear that we would be publishing the remaining data on our website shortly and have since done so.  TfL is recognised within the developer community to be one of the most forward thinking public sector organisations in relation to making our data available and have set up a developers’ area on our website providing a host of information.  This move was universally welcomed in the developer community.  The terms and conditions on the developers area relate to reuse of our data and does not inhibit right of access.   Access and re-use are two separate things and it is normal practice to monitor re-use of IPR or copyrighted information when providing information in response to an FOI request. The reason this information is provided on the website is to provide value for money to London taxpayers and passengers. Saving information onto hard discs and sending securely through the post for one person is less cost efficient than making the same data available on the web for a large number of people.”

Alex Deane comments: It seems to me that this hardly answers the suggestion that TfL attempt to fetter the uses to which the data might be put, as a condition of releasing it, something they have no right to do. Indeed, if anything, it confirms it.

Posted on by Big Brother Watch Posted in Legal Action

18 Responses to Transport for London breaks the law

  1. Jerome

    This sounds like they are trying to hide something. They don’t want there details and what they have done wrong all over the world. Well they need to wake up and live in the real world. They will provide the data and allow everyone to share it what ever the consequences. They have to live in the real world now.

  2. Taras

    To play devil’s advocate, it does refer to “the Transport Data” and “Syndication Developer Guidelines” in that paragraph, suggesting they are referring to TfL’s (highly commendable) open data policy rather than FoI requests. Looks to me like a case of ‘copy and paste’ T&Cs rather than anything malicious.

  3. Andrew Ampers Taylor

    Find a bankrupt, ask him to get your information, and then you publish it. They can then sue the bankrupt who will not suffer, and you can use the publicity this generates against the TFL if they are daft enough to sue.
    Simples.

  4. Alex Deane

    Taras, you *may* be right. But (1) whilst I *hope* that you are, I *fear* that you’re not, and (2) you will appreciate the chilling effect on freedom that such inaccuracies produce even if you are!
    I have complained to the ICO. We’ll see what happens next.

  5. Adrian Short

    Taras,
    The data available in TfL’s developers’ area is not open data in the commonly accepted sense of that term. The terms and conditions explicitly prohibit all of the accepted open data freedoms:
    - to use for any purpose
    - to modify
    - to redistribute
    But the legal issue here isn’t whether this data release is open data — clearly it’s not. The issue is whether TfL making a response to a FOI request available solely through their developers’ area is compliant with the FOIA. They insist that it is, but my argument about applicant and motive blindness suggests that it’s not.

  6. Donna Edmunds

    Have you also raised the issue with TfL themselves? Taras may be right, after all…

  7. Alex Deane

    Donna – I have. Awaiting response.

  8. Mike Cunningham

    I have e-mailed a clarification request to an Assembly Member, to see if he can excavate some sense from the otherwise impenetrable TfL laddies.
    Can’t wait; but probably will!

  9. Richard Craven

    @Taras
    I do hope your cock-up-not-conspiracy theory is right. I find frankly disturbing the thought that TfL might have done this deliberately. Alex is quite right to investigate this.

  10. Rory Meakin

    Sounds like it might be a s21 exemption. Even if it is, to make disclosure of public information dependent on an agreement not to use it to criticise a public authority goes against the spirit of the act (at least) and, indeed, the requirements in the Code of Practice.

  11. Adrian Short

    Rory,
    There is no exemption claimed. TfL’s view is that they have answered the request in full.
    The correspondence is here:
    http://www.whatdotheyknow.com/request/one_million_barclays_cycle_hire

  12. Mike Rouse

    I agree with the cock-up-not-conspiracy theory. Looks like they think AS is a Developer.

  13. startledcod

    I am increasingly of the opinion that TfL is an Aegean Stables waiting for for the flush of the River Larissos to clean it.
    This FoI response is indicative of an all pervasive institional arrogance. Self-serving with huge numbers of staff on £100k plus.
    Good post from Andrew Gilligan on use of the river http://blogs.telegraph.co.uk/news/andrewgilligan/100070841/boris-johnsons-broken-promises-on-the-river/

  14. Adrian Short

    Mike Rouse,
    Are you trying to be funny? :)

  15. startledcod

    WTF is “the developer community” TfL refer to? Developers of what?

  16. Alex Skene

    I’ve commented on the TfL spokesman’s remarks about posting CDs here: http://www.whatdotheyknow.com/request/one_million_barclays_cycle_hire#comment-15497
    Regards
    Alex – WhatDoTheyKnow volunteer

  17. Bimbles

    Whilst they’ve dragged their heels a little with actually making the data available, have you considered the likely communications within TfL?
    FoI team: “We’ve got this 150Mb file of bike journeys we need to make available to this guy Adrian somewhere on our website”
    IT team: “Ok, we’ve got an area set-up for transmitting data to the public, we can put it on there”
    FoI team “Fantastic, can you send us the URL details?”
    IT team “Sure, we’ve put it in our ‘Developers Area’, just get the guy to fill out this form and will give him the password to get to his file”
    FoI team: “Ok, thanks”
    2 problems are likely:
    - IT team doesn’t appreciate that it has just caused a problem
    - FoI team doesn’t read the sign-up form
    My money is on this simply being a cock-up rather than anything malicious.

  18. Adrian Short

    Bimbles,
    The method physical used to deliver the data to me isn’t really that important. TfL is just using it as a smokescreen to cover for the fact that they’re insistent that I sign a restrictive contract before I’m allowed to access the data.
    If you read the correspondence you can see that I tried to persuade TfL to send me the data directly rather than put it in the developers’ area and subsequently TfL’s legal and press officers have been defending their decision as FOIA-compliant.
    http://www.whatdotheyknow.com/request/one_million_barclays_cycle_hire#outgoing-101197
    But on the data delivery issue alone, it’s not hard. The file is 25MB. It’s actually small enough to email as an attachment and What Do They Know say they can handle that. The file is also available at an unauthenticated URL and TfL simply has to say that I can access it without accepting the developers’ terms and I’ll be happy.
    http://www.whatdotheyknow.com/request/one_million_barclays_cycle_hire#comment-15497
    I really have been very patient about this, quite clear about what I require and have only asked to be treated the same way as any other FOI applicant.

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