Craig Ball on Ed Balls’ Ofsted Balls-Up

My apologies to those of delicate sensibilities who might take this amiss. It is, I accept, insensitive of me to do this to you at the beginning of an article. There is no choice, I am afraid – I must return to the Ofsted “stuck in the photocopier” story. Did you think I was referring to my apparently uncouth title? If you visit an Anglo-Saxon site you must expect some Anglo-Saxon language.

My heading made itself, anyway. Craig Ball is the well-known US e-discovery consultant and fearsome commentator, a Special Master and a Forensic Examiner. He and I are allies in the battle on both sides of the Atlantic to increase understanding of the rules, and of the technology available to aid compliance with the rules. Ed Balls is the egregious Children’s Minister whose intemperate dismissal of Sharon Shoesmith, Director of Children’s Services at Haringey Council, gave rise to the proceedings in which the “stuck in the photocopier” excuse was raised. Ofsted is the Office for Standards in Education, a party (along with Haringey and Ed Balls) to Shoesmith’s application for judicial review of the decision to dismiss her, and the outfit whose capacious photocopier was the alleged hiding place for 2000 missing pages. Balls-up is a kind way of referring to the daily conduct of entities like Ofsted, as well as to the failure of the long-term mission implicit in its name – educational standards have plummeted in the last decade, and Ofsted’s spineless incompetence is partly to blame.

I have already covered this subject more than once (See Times e-Disclosure article leads with Baby P photocopier excuse and The Baby P case may be the disclosure story of the year. I come back to it because of a comment made by Craig Ball overnight on one of those articles.

There are, in any event, several relevant cross-links here, not all of which had arisen at the time of my last article. The decision in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile)  on the duties of a company (and, necessarily, of a public authority also) to preserve documents which might be needed in litigation is one theme. Professor Peter Hibbert’s letter in The Times about the destruction of ESI is another. I wrote yesterday (see Distinguishing data from information when balancing risk against cost) about the consequences of confusing more data with better information, using as examples the air travel security measures and the government culture which requires the collection of ever more data without thought about its use, still less its preservation and retrieval. A running theme in the e-discovery world on both sides of the Atlantic is competence. It is often helpful to illustrate points like this with a reductio ad absurdum, and nothing is more absurd, to say nothing of incompetent, than organisations like Ofsted and Haringey. Ofsted’s failures speak for themselves, and Haringey’s Children’s Department has hit the headlines again with the news that a sensitive file about child care has been found on a train. If this represents the personal incompetence of a particular local authority zombie, it also illustrates a data security failing of a kind which government in its various forms excelled at in 2009.

With all that by way of introduction, let us turn to Craig Ball’s observations on the Ofsted story. Here is his comment:

As you aptly note, there are far fewer decisions of moment respecting e-disclosure from the UK compared to the mounting totals in the US; consequently, there’s little justification for those in our narrow specialty to ignore your most important cases.

To that end, I’ve tried to play catch up with the Baby P case coming off holiday. So, having reviewed the Times reports and letters you reference, I’m no longer ignorant, but I’m a tad confused about the mechanics of the claimed omission.

Referring to OfStEd, the Times reports that, “It also apologised for omissions in the 2,000 pages of new documents. “It was an administrative error, not the result of lawyerly judgment,” Tim Ward, representing Ofsted, told the court. “As the papers were being copied not all of the pages went through. They got stuck in the photocopier.”

If we indulge Mr. Ward with the presumption of integrity for the moment and work from the proposition (arguendo) that he is telling the truth or something like it, I’m wondering what sort of feeder/hopper/queuing device can embody the notion of 2,000 pages being stuck?  I’m not being sarcastic here.  Surely the fellow didn’t just pull from the air so odd and implausible a notion as 2,000 pages being “stuck in the photocopier.”  There must be some germ of truth at bottom here, i.e., some genuine event with a time and place and cast of characters.  Maybe even a trouble ticket for the machine.  That’s five reams of paper, for heaven’s sake!  It seems a “stuck in the photocopier” for the Guinness Records book and so warrants elucidation of its particulars.

As I can’t see 2,000 pages becoming stuck at one fell swoop, I wonder if he’s referring to 2,000 pages pulled from the collection and set aside (then overlooked) because they, e.g., were stapled, folded or oddly sized?  Were the stuck pages just parts of documents otherwise produced in full?  Were documents pulled for special handling every time one jammed the copier, then these negligently forgotten?

Or was “stuck in the photocopier” merely metaphorical or a euphemistic proxy for “We recognize someone tried to hide these documents before we stepped in, but I can’t come right out and say that about a client and still keep my position, can I?”

I hope you will please stay on this as I, for one, would like to know if the excuse has a factual basis- flimsy or no – or is truly the craven conduct you  posit.  Thanks.

Although I believe that Ofsted will by now have given its explanation to the court, we are all, like Craig Ball, forced to fall back on guesswork as to what actually happened. There is more than one version out there already of the saga of the missing documents. Like Craig Ball, I am willing to assume that Mr Ward, representing Ofsted, is a man of integrity who is merely a mouthpiece for his clients. If they told him that the documents were “stuck in the photocopier” then he is bound to pass on that explanation. After all, lawyers are trained to persuade the court that their allegedly burglarious client is innocent, notwithstanding the jemmy, the bag of swag, the stripy pullover, the evidence of footprint and fingerprint and the way he said “it’s a fair cop, Guv” when questioned about the burglary. Anyone who can do that with a straight face is well able to run the “stuck in the photocopier” argument past a court.

We do not know if the documents had been copied and stapled as Craig Ball suggests, or if they had not reached that stage. It is not clear either whether the “stuck in the photocopier” excuse is a free-standing ploy or is related to Ofsted’s first pass at self-justification, which referred to a discovery made by a newly-employed lawyer researching something else. We had assumed that he had found the documents in the files; perhaps he was in fact investigating the substantial photocopier jam which must have resulted when 2000 pages got stuck in it.

Overlaying all this is the whistleblower’s story that documents went missing because of a memo circulated within Ofsted which, in Enron style, urged everyone to destroy documents relating to the Baby P investigation. It would be fairly typical of governmental incompetence if that memo was the only document which in fact survived.

Craig Ball wonders whether “stuck in the photocopier” is merely a “metaphorical or a euphemistic proxy” for something else. I have already suggested (in my predictions for 2010 for SCL) that the expression will pass into popular use as a sarcastic rejoinder to any purported explanation for missing documents with ‘I suppose you will expect His Lordship to believe that your clients lost these documents in the photocopier’ becoming a standard expression of polite disbelief.

I will of course stay on the case as Craig Ball requests. I am not optimistic that we will trace the “destroy everything” memo back to Ed Balls but one can only hope.

A more realistic hope is that mockery will succeed where other initiatives have failed, and that organisations will now begin to take seriously their obligations of preservation and collection in relation to their documents which may be required for litigation.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, Discovery, Document Retention, eDisclosure, eDiscovery, Electronic disclosure, Litigation Support, Local Government. Bookmark the permalink.

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