Freedom of Information request

I will approve the appointment of Flemingovia as temporary Justice.

Thank you.

I will respond to this request in 24 hours, that is by 8am British summer time on Sunday 22 July.

I think I have a pretty good handle in the arguments from what has already been posted. If anyone has anything to add that has not already been expressed, then please post it here.

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In ruling on this matter, it is worth noting the scope and the limitations of the Freedom of Information act in TNP, and also to define some of the terminology in it.

Section 6.2, which deals with FOI requests, reads thus:

Section 6.3: Freedom of Information Act
15. The Delegate and appointed government officials will be delegated the task of informing the Assembly of any governmental action not already disclosed by the respective officers of the Executive.
16. All registered citizens residing in The North Pacific may request information from the Government through the Delegate and the designated officers of the Executive.
17. The Delegate and the designated officers of the Executive will endeavour to retrieve information requested from the different departments of the government, who are obligated to release this information provided it will not and/or does not present a threat to regional security or unduly impinge on the privacy of private citizens, and
18. Citizens which do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information in a regional court, where the Delegate and the designated officers of the Executive may present evidence that addresses any claim that release of the information impairs Regional security.
19. Information not disclosed because of issues pertaining to Regional security will be classified by the majority vote of the Court sitting as a three-member panel.
20. Information whose disclosure is deemed a security threat to the Region will be released by the affirmative vote of a majority of a three-member panel of the Court, no sooner than 2 months after the original request, once the threat no longer exists.
21. All activities by the designated regional intelligence services are exempt from this law.

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The act makes clear the scope of posts covered by this act: it covers “government action” (section 15), information … from the different departments of the government (section 17).

I have chosen to define government as widely as possible, to cover the government, Regional Assembly, court, cabinet, security council, military etc etc. This is out of fairness to the request.

The act further makes it clear the reasons for which the government may refuse a FOI request: threat to regional security (sections 17, 18, 19, 20), impinging on the privacy of private citizens (Section 17) or pertaining to the designated regional intelligence service (section 21)

In this case no evidence has been submitted that disclosure of this information would represent a threat to regional security. Nor has it been stated that it would impinge on privacy or a designated regional intel service.

Therefore the only criterion left for this court to consider is whether the information falls within the scope of “government action?” Using my admin access, I have made exhaustive search of all government threads: Cabinet, Regional Assembly, Council of Five, Military etc etc. I CAN FIND NO DISCUSSION OF THE BLUE WOLF/HILEVILLE LOG IN ANY GOVERNMENT THREAD.

There was private discussion before and around the release which, as Blue Wolf has stated, provides the context for the release, but this took place in a private area of the forum to which Eluvatar invited selected, trusted individuals, some of whom were members of the government, others were not. It could, therefore, be argued that this was private discussion between “concerned citizens” and therefore outside of the jurisdiction of the FOI act.

However, I have also considered whether these discussions, taking place outside government offices, were nonetheless government discussions.

It is clear that when Eluvatar published the log, he acted as delegate rather than as a private citizen: in THIS POST he adds his note as “delegate note:”. It is also clear in THIS POST that he considered that the private discussions took place in an “intelligence area” – which would seem to suggest that they took place in a quasi-official, if clandestine, threads. It has also been argued that Eluvatar's very use of the word "declassified" implies that the logs were at one time "classified". However, this I have put down to loose use of the english language rather than an official designation of the material at hand.

On reading the material, it is clear that the release of the BW/Hileville log was a political act, triggered by fear of Blue Wolf’s endocount and the suggestion that he might be exempted the eligibility criteria for membership of the Security Council. But “political” is not legally the same as “governmental”.

Having looked carefully at all the posts and the wording used, I am forced to conclude that the material requested for release by Blue Wolf does not fall under the scope of the Freedom of Information act, and this court is powerless to order the release of said information. There is insufficient evidence that Eluvatar or other officials involved were acting in an official capacity, and the discussions did not take place in government offices.

This is a reluctant ruling, since the selective release of information without context or rationale was deeply prejudicial to Blue Wolf, and represents the sort of backroom manoeuvring which is deeply inimical to democracy, even when done in the name of preserving democracy.

Democracy depends on openness. Repression thrives on secrecy. This case has also highlighted a potential loophole in the Freedom of information Act. there is no evidence that Eluvatar and others deliberately acted to avoid future freedom of information requests, but this is nonetheless the effect when government actions are preceded by secret and non-government discussions.

dated: 22 July 8am (local time)

Flemingovia

flemingovia:

Having looked carefully at all the posts and the wording used, I am forced to conclude that the material requested for release by Blue Wolf does not fall under the scope of the Freedom of Information act, and this court is powerless to order the release of said information. There is insufficient evidence that Eluvatar or other officials involved were acting in an official capacity, and the discussions did not take place in government offices.

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Didn't Eluvatar himself claim he was acting in an official government capacity when he authorized the release? Wouldn't this ruling mean that he was, in fact, not acting in such capacity and thus not afforded the protection the government position grants him when releasing "official" classified information?

On reading the material, it is clear that the release of the BW/Hileville log was a political act, triggered by fear of Blue Wolf’s endocount and the suggestion that he might be exempted the eligibility criteria for membership of the Security Council.

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Ah, thank you, this shed quite a lot of light on true motivation of the event. Apparently, in the eyes of today's government "slander" is the same as "public interest".

BW: on your first point Elu made it clear that he released the log in his capacity as delegate. However, regarding the information you requested I could not prove conclusively that the threads in question were in any way government threads.

On your second point, I have no comment to make. Your conclusion would not be far from my own.

You got screwed, but there is bugger all the court can do about it.

flemingovia:

There was private discussion before and around the release which, as Blue Wolf has stated, provides the context for the release, but this took place in a private area of the forum to which Eluvatar invited selected, trusted individuals, some of whom were members of the government, others were not. It could, therefore, be argued that this was private discussion between “concerned citizens” and therefore outside of the jurisdiction of the FOI act.

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I'm curious, really, how that works? How/why/when, on what basis was such an area created?

As it wasn't a government area, and wasn't created for Eluvatar for the government or because he was a government official, presumably then I could ask the admins to make a private area on the forum for me to use and invite select "trusted" people to if I wanted...?

Even if it remains undisclosed, it is at least something to have it officially confirmed by the Courts that the TNP "star chamber" exists. I know it will suprise very few, but in revealing its existance (if not its contents) the Court has at least done a little good here.

Haor Chall:

flemingovia:

There was private discussion before and around the release which, as Blue Wolf has stated, provides the context for the release, but this took place in a private area of the forum to which Eluvatar invited selected, trusted individuals, some of whom were members of the government, others were not. It could, therefore, be argued that this was private discussion between “concerned citizens” and therefore outside of the jurisdiction of the FOI act.

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I'm curious, really, how that works? How/why/when, on what basis was such an area created?

As it wasn't a government area, and wasn't created for Eluvatar for the government or because he was a government official, presumably then I could ask the admins to make a private area on the forum for me to use and invite select "trusted" people to if I wanted...?

Even if it remains undisclosed, it is at least something to have it officially confirmed by the Courts that the TNP "star chamber" exists. I know it will suprise very few, but in revealing its existance (if not its contents) the Court has at least done a little good here.

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Your How, why where when question would best be addressed to Eluvatar. I do not know for sure when the area was created, or on what basis. as far as I am aware the forum and the mask that allowed access to it was created by eluvatar, but I am not certain of that.

If you wanted a private area of your own, presumably all you would need would be to get a friendly admin to create one and the permission of the root admin for one to be set up. I am not sure that it would be well received if a number of requests were received.

I am grateful for your compliment regarding the judgement.

Your How, why where when question would best be addressed to Eluvatar. I do not know for sure when the area was created, or on what basis. as far as I am aware the forum and the mask that allowed access to it was created by eluvatar, but I am not certain of that.

If you wanted a private area of your own, presumably all you would need would be to get a friendly admin to create one and the permission of the root admin for one to be set up. I am not sure that it would be well received if a number of requests were received.

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Elu created it as an admin, and he was not Delegate at the time. There's a list there of who was given permission to view, read and post, and I will raise a conflict of interest claim to anyone on that list insofar as Court proceedings are concerned. And those on the list can all see the area.

Such private areas are not new, they've been used before both here and at other forums the TNP Community have used in the past.

But never has it been claimed that such areas are "not part of the government" until now.

Blue Wolf II:

But never has it been claimed that such areas are "not part of the government" until now.

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Well, since you were the one doing the plotting, it hardly makes sense for it to be part of your government, does it?

So what you're essentially saying is that the Security Council is useless and we shouldn't have it, eh?

I would have to agree with Gross on this matter and yes they have been private areas but to wait one year to disclose private posts is too long I am for transparency in all TNP govt offices

Elu certainly didn't wait a year to "declassify" that log that "doesn't belong to the government".

Let's be clear some of these areas were never part of the government of the day, others were part of the intelligence services of the time (to which I never had access even as admin) and those no longer had content, or were previously published by Tresville before his last retirement from Nationstates.

The area currently under discussion is a private non-governmental area, and was set up as such.

In other words, a Star Chamber.

When I made ruling on July 22nd concerning Blue Wolf’s Freedom of information request I ruled that the FOI could not apply in this case because the information in question was non governmental.

I based this ruling on the best information available to me, including statements by Eluvatar which I took at face value which stated that the information was not governmental.

It is too late to revisit that ruling now, but the crux of the matter for me was whether the secret group Elu gathered, and their discussions, were part of the government or not. I concluded:

There is insufficient evidence that Eluvatar or other officials involved were acting in an official capacity, and the discussions did not take place in government offices.

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Elu said nothing at the time, either in private or in public to contradict the opinion I had formed. But as the person who formed this group, it is obviously central to the argument whether, when he formed the group, he understood himself to be doing so as a part of the Security Council, or as a private citizen.

Eluvatar has subsequently stated that:

Eluvatar:

Personally I had not understood it to be extra-governmental

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This is crucial evidence. Had this been stated at the time of my judgement, my decision would have been that the information requested by Blue Wolf did come under the scope of the Freedom of Information Act, and should have been released.

Although I doubt that Hileville or Grosseschnauser (both confirmed members of the group) will wish to re-open this case, I would be grateful if everyone would consider the legal opinion I gave on 22nd July to be a legally unsound ruling. Had I the power it is a ruling I would reverse.

Hmm, an interesting turn of events indeed.

Can't appeal based on new evidence?

I don't think so. You know very well Flem you were one of the people who said it wasn't governmental which is the way you voted on the matter. Nice try.

Didn't Flem just say that he only thought that based on what Eluvatar originally told him only for Elu to later renege on his original statements?

I'd like to request another FOI release of the same scope and bounds of BWII's request.


EDIT: this is not an appeal; simply a request for the same information.

As far as I am concerned it was nongovernmental as some of those given access were non-governmental at the time. All admin at the time were given access, including the ones who are still admin now.

I think Flem needs to reconsider his role in this matter. Just saying.

My "role in the matter" was as a legally and constitutionally appointed temporary justice. There is nothing much there to reconsider.

Blue Wolf has it spot on. My opnion can only ever be based on the information I have at the time - and I am not unable to change my mind if new information comes to light.

This situation is really bothersome.

An observer can understand Flem's ruling that it was a non-governmental body getting together and while said non-governmental body seemed to receive preferential treatment from the admins in that they were given space on these boards beyond the site of certain government officials and the RA, one can see the legality behind Flem's ruling.

However, this changed with Elu's remarks that he actually believed it to not be an "extra-government" convening, which means his purpose was for it to be a governmental meeting which excluded some government types AND, more importantly, included some non-governmental persons.

The questions raised by this FOI request should not be taken lightly because of what they may portend in future situations. In my opinion, Elu's concerns could have been brought to the fore in a different manner and the admin team, in my opinion, holds as much culpability in the veil of secrecy as anyone involved.

Again, from Elu's comments it appears that he believed the meeting was governmental and he acted accordingly. If he believed it was, then the information contained therein should fall under the purview of the FOI. Indeed, Flem's entire argument falls to crap if the meeting was a governmental meeting and why he's seeking to 'reverse' his earlier ruling.

Grosse's point that because some non-governmental types were given access actually makes the meeting even more dangerous. Let's put it this way, Elu was concerned that an elected delegate was about to go rogue and he decided to have a conversation about it and included non-government persons in his conversation. So does that mean that if the cabinet holds a meeting and invites me to the meeting it becomes a non-government meeting if I hold no position of rank? Or if a non-TNPer is in attendace, is it therefore not a government meeting? What Grosse argues leaves open a loophole for future governments to use to circumvent the FOI law.

I'd actually like for any adherent to Grosse's position argue a counterpoint to this. Elu believed it was a governmental meeting by his own admission. Thus, it was and should be covered by the FOI law unless there is some regional security reason as to why the information should not be released.

Blue Wolf II:

Didn't Flem just say that he only thought that based on what Eluvatar originally told him only for Elu to later renege on his original statements?

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I didn't call it nongovernmental until flemingovia and Grosseschnauzer told me to call it nongovernmental.

Wait, so why did The Dog tell you to call it nongovernmental, why did you believe him if you didn't agree, why did you say it anyway if you though that wasn't the case, and why are you blinding following what The Dog tells you to do?



That does not make sense!

We all do as we are told where Grosse is concerned.

Hear hear.