ICO to vet Welsh broadband dispute
A decision by the Welsh Assembly Government (WAG) to not release the test methodology and raw test data for the £425m Superfast Cymru broadband project has been referred to the Information Commissioner’s Office.
The complaint stems from a claim by a junior minister that the project had led to more than 100,000 premises being connected at an “average speed of 61Mbps”. It is part of long-running scepticism that the contract will deliver what the WAG has claimed it will, and now subject to audit.
The claim, by deputy minister for skills & technology Ken Skates, was challenged by broadband consultant Richard Brown. Using the Freedom of Information Act, Brown asked the WAG to supply the methodology and the raw test data on which Skates based the claim.
The WAG refused, saying the information would be published at a later date. Brown asked for a review of the WAG’s decision.
Rob Hunter, director of finance and performance in the department of economy science and transport, again refused Brown’s request. He referred to the earlier reason for non-disclosure and added that the information, together with an explanatory narrative, will be published, “probably in summer”, together with a ministerial announcement.
“I am of the opinion that publicly releasing the raw material at this time, without the explanatory narrative and accompanying explanatory ministerial announcement, would cause disruption to the Welsh government’s pre-set programme and the ministerial process in relation to this work in that the raw information, if released prematurely, may be misconstrued and re-published by some, or extracts of the information re-published, in such an ambiguous way as to cause confusion amongst the public and cause disruption to the effective conduct of public affairs.
“To that end, I do not think it is reasonable in all the circumstances or in the public interest to release this information prematurely. Rather, I believe the public interest would be best served if the information were released alongside the ministerial announcement and consultation participation report so that the public can review the information in context. I am satisfied therefore that the balance of the public interest falls in favour of withholding the information.”
In his complaint to the ICO, Brown said, “It does not serve the public interest that a junior minister can make claims in a press release (that is subsequently printed in the press), [but] that the information for testing those claims is withheld until a later date.
“I have been separately informed that the test data is not formed in the manner that has been described, in so much as that the 100,000 connections are not live connections (as described by the junior minister in his release), but are (in the majority) simply theoretical tests that have taken place to establish the possibility of these connections and their speeds.
“Such theoretical connections belies the claim made by the junior minister that the connections are ‘live’ with an average speed of 61Mbps. As such the public interest is in fact damaged due to the claim likely being both false and misleading. The determination to publish the data at a later date, simply moves the ‘proof’ to a later date in an effort to minimise its relevance in informing the public interest.”
Brown noted that WAG had waited until the last possible day to reply to him. “I am of the opinion that this is contrary to the spirit of the act, and is contrary to the commissioner’s guidance, and furthermore is a deliberate attempt to prevent access to information that would be appropriate to informing the public interest.”
In support of his complaint Brown claimed that Hunter’s statement that premature publication could confuse the public was “simply without merit”.
He said, “If this were indeed the case, then a programmed press release by the junior minister would not be possible for precisely the reasons given for not substantiating the claim made by the same junior minister. Further, had the junior minister not made such a wildly unsubstantiated claim in the press, the public interest would not need ‘early’ access to the data to test the claim made.”
Brown believes that Skates’ claims cannot be upheld using the withheld data. The denial on the grounds of future publishing and the unnecessary use of the total time allowance for responses were an attempt “to obfuscate the correct and appropriate informing of the public interest” rather than trying to preserve such public interest as Hunter claimed.
“The commissioner will be aware that such actions are contrary to the act and the deliberate attempt to prevent the legitimate release of information that informs the public interest remains an offence under the act,” Brown said.