Examination of witnesses (Questions 1 - 29)
TUESDAY 2 DECEMBER 1997
MR MICHAEL
BUCKLEY and MR
JOHN TATE
Chairman
1. Good morning, Mr Buckley. Would you like to introduce
your colleague?
(Mr Buckley) This is Mr John Tate who is my Deputy
with particular responsibilities for freedom of information and
access to government information work.
2. I should have checked on the issue of whether you
have what you sometimes describe as a speaking note that you are
going to speak to to kick the proceedings off, or whether we should
go straight into the questions, or whether we are reliant on your
previous documents or what?
(Mr Buckley) I have not got a lengthy speaking
note, Chairman. It would be very much in the words of a former
Poet Laureate: "Along the wires the electric message came;
he is no better, he is much the same."
3. Was that the Poet Laureate of South Dakota? Very good.
Are there remarks that you want to put to us?
(Mr Buckley) Not an introduction, Chairman. It
is simply, as you and the Committee will recall, I and my predecessor
both speculated at some length as to what are the reasons for
the relative lack of interest in this area of work. All I can
say is that lack of interest, whatever may be the causes for it,
continues. In this calender year to date we have so far had 25
complaints about access to information under the Government Code.
4. Yes. Let us hope that the Government does not use
this as an excuse for deferring the freedom of information legislation.
Would you think it is fair to say that the reason that the public
have not overwhelmed you with complaints about being blocked from
information under the Code is that they are a bit cynical about
a Code, the very concept of a Code, rather than legislation and
making a complaint to the Ombudsman to use the Code as a way of
cracking open the Government's denial of information but without
legal or statutory enforceability they see as in some way weak
and it makes them cynical and they think "what is the point"?
Do you think that is what is behind it?
(Mr Buckley) That may be one cause. As I said,
Chairman, I find it very hard myself to divine what the reasons
are. There is no doubt that a very large number of requests for
information, things like forecasts of pension benefits, whatever
it may be, are made to Government departments and the great majority
of those get dealt with in a quite straightforward way. In 1996
I understand from the Cabinet Office's statistics that something
over 2,000 requests for information under the Code were made to
departments. I am not sure how they compiled those figures.
5. How would people indicate that they are using the
Code in that respect? Is there a difference between the way you
would write a letter to a government department and you would
say "I am writing this letter under the Code", or would
it just be if you write a letter seeking information from a government
department you would regard that as being under the Code even
though the word "Code" does not appear in the letter?
(Mr Buckley) Any request for information should
be dealt with in accordance with the Code. I think probably the
Cabinet Office score, although it is a matter for them, is whether
the Code is explicitly mentioned.
(Mr Tate) Yes.
6. How much difference would it make in the way that
a government department might respond if you actually mention
"I am writing this letter and I expect this information to
be provided under the Code"? Do you think that would make
a difference?
(Mr Buckley) It should make none. The Code applies
to all government information.
7. Clearly.
(Mr Buckley) Any requests for information should
be considered in accordance with the Code. It just puts the department
on notice.
8. Is that part of the practice which you might say one
might encourage, pending the arrival of freedom of information
legislation, that you write a letter to a department first and
you just expect them to abide by the Code? If you get a block
you then write back a second time saying: "I am demanding
my rights under the Code and I shall go to the Ombudsman to enforce
this if you do not give me the information". Would you regard
that as a reasonable way that we should encourage people to approach
this over the next couple of years before we have legislative
and statutory protection?
(Mr Buckley) I think it will certainly do no harm
and it could do some good. Just to round off the point: of those
2,000 requests over 90 per cent were accepted. Fewer than 200
people actually had their request for information under the Code
turned down under one of the exemptions. Of those 200 fewer than
25 per cent - 44 - came to me. Whether that was because they thought
the department's reply to them was so imbued with wisdom and justice
that there was not any point in taking it further, that they got
tired, or whether they thought there was no point in coming to
my office, I just do not know. The fact of the matter is we only
had 44 complaints in 1996.
9. It is quite staggering. Do you think that over the
next two years the biggest impact on the Government's willingness
to respond to information and to cease to block information from
the public is going to be the anticipation of freedom of information
legislation? Namely, the supposition I am putting to you is that
departments will realise in 1999 or whatever that they will have
to abide by freedom of information legislation in some shape or
form and, therefore, they might as well anticipate it by actually
starting to release more information and starting to take a freedom
of information attitude of mind even in advance? Do you see the
possibility of that or do you see the alternative possibility,
if you are really cynical about these things, that they will anticipate
the legislation by not committing so much to paper so that there
is less information in that formal sense to disclose to the public
anyway when we eventually get to legislation?
(Mr Buckley) I suppose that might happen. I think
on the whole departments are not going to deal with pure information
in that way because they need it, it needs to be recorded, it
needs to be accessible. Remember, the Code does make it clear
that departments should approach requests for the release of information
in the spirit of making it available if possible, not finding
excuses for not making it available. I think that it may be, and
it has been speculated after all by successive Governments explaining
why they need an exemption for internal advice, that people might
become more circumspect in putting things on paper, their advice,
their comments on individuals or issues, I just do not know. In
that respect it seems a matter of speculation.
10. This is completely off the wall and this is my final
question. Have you ever thought as to whether Ministers in an
incoming Government might actually find themselves in the position
of wanting to come to you because of the problem that arises when
you have a change of government, as we had in May, whereby Ministers
are desperately seeking information as to how Ministers of the
previous Government, their own predecessors, actually took a decision,
whether it is on BSE or the Cardiff Bay Barrage, which has been
one of my main areas of interest, but the incoming Secretary of
State cannot find out anything about how a major contract was
let which he is then still responsible for paying for but was
let by the previous Government so they cannot get information
about whether there was anything dodgy about a decision that was
made previously? They want to find out but all the files are closed,
the outgoing Prime Minister has them all locked up for 50 years
or whatever. I am not talking about the civil servants being locked
up for 50 years, but the files being locked up for 50 years. Have
you ever thought that it might be an incoming Secretary of State
who might come to you and say "But why can I not see these
files? I am desperate to put this matter right but I cannot put
it right until I know what went wrong and I cannot find out because
it was done under the previous government"?
(Mr Buckley) It is not a matter on which I have
speculated, Chairman. In the first place, of course, the Minister
would have to refer his or her request through a Member of Parliament
because that is what the Act says.
11. Another Member of Parliament, not themselves.
(Mr Buckley) Exactly. Secondly is the question
of whether or not for these purposes he or she would count as
a member of the public. Sorry to make these difficulties but they
are there. Third, I have no access to Cabinet papers or Cabinet
Committee records. As you are well aware, there is a constitutional
convention. However, I would have thought that officials would
tell Ministers as part of their normal course of duties about
the factual background to any contract. They would not divulge
details of their advice to previous Ministers, and that advice
anyway would be caught by one of the exemptions under the Code,
but they should certainly reveal the factual background.
Chairman: I will bear that in mind. Thank you very
much for your advice.
Miss Johnson: Can I go to the 1996 Report and first
of all just make sure that I understand how this works in Appendix
1. The numbers of items of correspondence refused, for example
- - - They do not have pages on this but it is actually page 24
in effect.
Chairman: I am not sure that you are looking at the
same document.
Miss Johnson: The 1996 Report. It is Appendix 1 at
the end of it.
Chairman
12. The Cabinet Office document.
(Mr Buckley) I do not think we have that with
us. We have got the latest one.
Chairman: You have got the 1997 one.
Miss Johnson
13. I am on page 24 which is the first page of Appendix
1 in effect, the table. If we look about two-thirds of the way
down, the Inland Revenue, for example, had 65 million items of
correspondence of which 28 were refused under the Code. Then going
across to the internal reviews column, does that relate to the
number of people who then took their refusal to internal review?
Is that how it works?
(Mr Buckley) Yes.
14. It is the "upheld for". So although the
numbers are very small in that column of internal reviews it is
because most people did not decide to move on to that second stage?
(Mr Buckley) Yes.
15. Are they told at the stage at which their information
is refused about the process in detail?
(Mr Buckley) Yes, they should be told about internal
review and they should be told of their rights to apply to my
office.
Miss Johnson: Can I move on to Appendices 5 and 6 in
it. Appendix 5 details the table of departmental charging schemes
and Appendix 6 gives the internal review procedures as well. What
strikes one looking at these is how hugely varied the departments
are in their approaches. For example, in the charging scheme the
Ministry of Defence gives the first four hours of time free and
thereafter £15 per hour. In some departments, the Home Office
gives one hour free and then £20 per hour, requests costing
under £100 free in the Scottish Office and so forth. There
is a huge variation on that. There is likewise a huge variation
in the way in which the internal review procedures are carried
out too, moving on to Appendix 6. Some have a target response
of 15 working days, some have six weeks, some have 20 days. If
you are the Department of Social Security it appears that you
do not have to give any target response time whatever because
there is nothing down there on the bottom column for the DSS.
I am wondering two things. One, whether you feel it would be highly
desirable to have a much more standardised approach? Secondly,
out of your experience of it are some departments much more co-operative
than others and who would be at the most co-operative end of the
league table, as it were, and who would be at the least co-operative
end of the league table?
Chairman
16. This is the time for naming and shaming.
(Mr Buckley) I think one has to make the point
first, Chairman, that these are matters which are left to departmental
discretion. It is a matter for the Cabinet Office and Government
to decide the extent to which, if at all, they want to impose
some sort of uniformity or common approach. Of course, people
can come to me if they think that the standard of the level of
charges is unreasonable in a particular case or if a department
has failed to live up to the target times for response which are
provided for under the Code. I think it would be unfair to name
departments with whom we have had particular difficulties because
the numbers are so small. There is more of a spread, I think it
is fair to say, in requests for information than there are the
orthodox complaints. As the Committee will know things are dominated
by the Department of Social Security in general and the Child
Support Agency in particular. We have a wider spread and therefore
relatively few cases from each department. What I can say is that
the Health and Safety Executive is a pretty good performer. They
get a lot of requests for information under the Code. Those that
we have seen they have dealt with quite properly. That is not
to say we would always endorse the judgments that they have made
but they do address the issues raised by the Code and they do
try and live up to the standards in the Code.
17. I asked you another question as well which is what
your view is professionally about whether it would be desirable
to have a greater uniformity of approach? This is not provided
for currently under the Code but it seems to me it is wrong. I
would be interested to hear what you have to say about it. We
have such wide variations.
(Mr Buckley) It is a matter for which I am not
responsible but in general I do think that it is a pity that there
is such a wide variation within the public services, not just
in this matter but in all matters to do with complaints. It seems
to me it makes it very confusing for people trying to use the
complaints service, if I can put it in that way. It is not directly
a matter for me but, yes, I share the views that Miss Johnson
has expressed.
18. If I put in a complaint in some departments I apparently
get probably most of the work done for absolutely nothing and
the information may pop out at the other end at no cost whereas
in some departments clearly it would cost you an arm and a leg
to get information out if you are an ordinary member of the public
wanting it.
(Mr Buckley) I think one has to recognise that
some requests for information do involve departments in a substantial
amount of work and it does not seem to me unreasonable that they
should charge for it. Why there should be this very wide variation
between departments is not clear to me I must say. However, I
do have to say all I can do is look at an individual case and
say whether in that particular case the level of charge does or
does not seem to me to be reasonable.
19. Just on the shaming matter, perhaps I can conclude
on that. You are obviously not happy to name anybody on that front
as it were but can I ask you have you gone back to departments,
albeit on your scattered connections on this score, limited as
the numbers are, and said to anybody in the right place in the
department "We do seem to be having less co-operation from
this particular department than we are finding from others. Could
this issue be addressed?" Have you had cause to do that or
have you done it?
(Mr Buckley) We would do so if we found a sufficiently
large number of cases. Because of the way the Act is structured,
many of our exchanges with departments will be at very senior
levels. Initially by law I have to approach the principal officer
of the department. Certainly I think there are one or two Permanent
Secretaries who are in no doubt that we think they and their departments
are really just looking for reasons, clutching at straws one might
almost say, to avoid the release of information. We make our views
known in those cases in no uncertain terms.
20. Has that led to a more responsive attitude?
(Mr Buckley) It has led to our getting what we
regard as a reasonable outcome in the case under discussion.
Chairman
21. Thank you, Melanie. Before I pass the questioning
on to Richard Shepherd can I just ask one question which is in
a way supplementary to the line of questioning from Melanie Johnson.
Where we have different territorial departments covering the same
areas of responsibility, for instance on education we have got
the Scottish Office, the Welsh Office and the Department for Education
and Employment, it is very difficult to see a justification for
depending on where you live what your rights of access would be
in terms of the charging, in that if you happen to live in Wales
or Scotland you would have no charge up to £100, whereas
if you live in England and you were approaching the Department
for Education and Employment you get the first four hours free.
I am not sure which of those is the better bargain because I am
not sure what is the approximate hourly rate that is deemed to
be behind the £100. What do you get for £100 from the
Welsh Office and the Scottish Office? Is that five hours worth
of work, as it were, or is it four hours worth of work? Do we
have any idea of on what the equivalence is based? Some of them
express it in money, the first £100 free, and some of them
express it in terms of so many hours free. What does it mean?
What is government time deemed to be worth in responding to requests
for information? Do we know the hourly rate? Is there an hourly
rate?
(Mr Buckley) I do not think there is. It varies
between departments. Our ballpark figure from the cases we have
seen would probably be about £20 an hour.
22. I see. So people in Wales and Scotland are better
off, they get five hours worth free or four hours worth free?
(Mr Buckley) Not necessarily, but that is a sort
of broad indicator.
Miss Johnson: But the people in England are worse off?
Chairman
23. People in England are worse off so Members of this
Committee from England will be deeply aggrieved about this. Can
I just ask you to comment on the Foreign Office method of responding?
They say that straightforward requests are free but complicated
ones are charged at cost. Who decides what is a straightforward
request?
(Mr Buckley) In the first instance the Foreign
Office. If the complainant does not like the Foreign Office decision
it is then a matter for them to take it up ultimately with me.
It is a judgment that the Foreign Office makes.
24. Then you also have to make counter judgments if you
do not agree with them and you would say "no, that is a straightforward
request, now answer it free"?
(Mr Buckley) Yes, or that the particular level
of cost deemed to be leviable by the Foreign Office was excessive.
25. But do you approve of the Foreign Office doing it
in that way, of claiming that they can make a judgment of Solomon
about which requests are straightforward and which are not?
(Mr Buckley) I think I can do no more than repeat
what I said in previous answers, Chairman. It is not a matter
for me but I do think it is unnecessarily confusing for people
that they face this extraordinary variety of practice and approach.
Chairman: It is certainly not straightforward.
Mr Shepherd
26. Mr Buckley, may I continue on the line that has been
opened up, the time this takes in particular. I want to refer
to a case that has troubled me. I will just do the outline, if
I may, because it has some implications for your own office. You
probably are aware of the one that is at the back of my mind but
I will nevertheless summarise it. This goes back to a request
by Maurice Frankel for information from the Minister for Energy
and the Secretary of State for the Environment. He wrote as long
ago as 6 and 9 June 1994 as to "whether any persons within
their department had at any time had access to a report - the
report - prepared by Touche Ross for British Nuclear Fuels PLC
- BNFL - on the economic viability of the thermal oxide reprocessing
plant - THORP - at Sellafield, and if so who those persons were
and on what date the report was made available and the circumstances
under which access was given. Secondly, what conditions, if any,
were imposed or undertakings given regarding disclosure of information
contained in or relating to the report? Thirdly, whether the report
had been supplied or otherwise made available by the departments
or by BNFL?" I respect that this would be one of the sorts
of complex inquiries that you would receive. He fulfilled the
conditions under the Code of Practice of writing to the departments
concerned. By January the following year he has not had satisfaction
on this and he wishes it to be referred to the Ombudsman. I do
that for him and on 15 August 1995 we get to the position whereby
I think it is Mr Avery, writes to me, this is all this time afterwards,
saying: "The Parliamentary Commissioner is prepared to investigate
the complaints against DTI and DoE." We then go to 18 October
when Mrs Boulton draws to my attention, quite properly, the received
papers and that these may take a little while to investigate due
to the complexity of them. Nothing is then heard from the Ombudsman
for two years. I write again on 25 September of this year saying
are you in a position or anything to progress this? I get back
a postcard on 26 September which says: "Your reference",
my reference that is, "The Parliamentary Commissioner's office
acknowledges receipt of your letter dated 25.9.97." I received
that on 1 October. Do you not think that that process actually
discourages people from making an application under the Code?
Do you not think that the Ombudsman's own role in this would be
helped by providing some form of interim explanation as to the
two years, well beyond the average 45 weeks in 1996 and 32 weeks
in the preceding year? There has been no explanation as to this
and no substantive reply.
(Mr Buckley) I think, if I may say so, Chairman,
those are very fair points. It is a matter that concerns me greatly
both in the context of freedom of information and generally, that
the office has taken such a long time to deal with requests and
complaints. As I told the Committee at an earlier session, I am
devoting a lot of effort, and my staff are, to reducing those
times. The particular complaint is a complicated one. We are at
the stage of having produced a draft report which we are discussing
with departments. I think that in turn illustrates one of the
problems that we have. Because the freedom of information system
is built on top of the 1967 Act with all that brings with it we
are not, as is usually the case with freedom of information legislation,
able to say "that is it, we have heard the argument and that
is our decision", we have to discuss with departments and
those discussions often take a long time. We are getting our times
down. In 1996 it was 45 weeks. Currently the average is the same
because we have old cases but we are bringing it down and we have
set a good deal more stringent target times for average cases.
I have to agree with Mr Shepherd, these times are too long and
we need to bring them down. It would be a great deal easier to
do so if we were not operating within the constraints of the 1967
Act. I hope the particular complaint we have heard -
Chairman
27. Which constraints in particular?
(Mr Buckley) Perhaps I could just finish. On the
particular complaint we have heard I hope we will be producing
a report shortly. The constraints are these, Chairman. In the
first place, of course, the complaint has to be referred through
an MP. If we propose to investigate it is then necessary to write
to the principal officer of the department concerned for his or
her comments and that may take a matter of some weeks. The target
is three weeks, in some cases it is six. We then have to investigate,
and as I say there is a process of one might almost say negotiation
with the department concerned on the Code and that takes time.
In the last analysis, if I were dissatisfied I could put a special
report to Parliament under Section 10(3) of the Act saying that
I thought there had been maladministration and there was an injustice
which had not been remedied but that is a pretty heavy-handed
thing to do and one cannot do it in every case. The whole procedure
is governed by statute. There are various requirements we have
to satisfy. The basic structure of the Act pushes one into lengthy
investigations, discussions with departments and so on, rather
than what I think most people are looking for in a freedom of
information Code which is to put their complaint and to have it
despatched reasonably swiftly. There is the Code, it should be
a matter of deciding whether or not the Code applies.
Mr Shepherd
28. I just wanted to clarify in my own mind do you have
other cases outstanding for two years, for instance?
(Mr Buckley) Not two years. I will ask Mr Tate
to give further details. We have a number of cases, for example
with the Department of Trade and Industry, which have proved particularly
difficult and which have therefore taken longer than we would
wish.
(Mr Tate) We have very few cases now in our backlog,
thankfully. I think there are two or three on which the delay
is not far off the level that you suggested in the case you have
just described. However, we are optimistic that those cases will
be cleared away before the end of this calender year, certainly
not much into the beginning of next year. We have been working
quite hard to reduce that backlog. We have a number of full-time
staff working on the cases. Certainly so far as the cases which
we took on from about June of last year, the throughput time for
those has dropped quite considerably. I think the average for
those is about 32 weeks now which is very much nearer a more sensible
target, if you like.
29. Because we will be discussing a White Paper with
green edges and some legislation on this I am wondering what lessons
one is learning from this. Your judgment is that whilst there
are difficult issues concerned in them, is it the departments
themselves that are playing this into the long grass?
(Mr Tate) There is a certain amount of wrangling
with departments, it has to be said, and that does take time inevitably
because we have had to correspond with the Permanent Secretaries
and they have, I would imagine, a limited amount of time which
they can devote to these issues and therefore there must be a
pile of papers on their desk and it takes time to clear their
desks. Certainly the requests for information at a low level are
often not met and go on up because often they are dealing with
issues which are very sensitive and more junior officials are
reluctant to deal with them and address them, so far as our requests
are concerned, without clearing them at a high level. All of that
adds to the time. Therefore, we can write to them asking for information
and it can take many weeks to get a proper response. In some instances
it may be several months.
(Mr Buckley) By definition, if I can supplement
that, we are dealing with the difficult cases, the ones that have
not been resolved at a lower level. I think there is probably
a fear that they are setting a precedent that they do not want
to say yes, that the department accepts this interpretation of
the Code. It turns into a process almost of negotiation and I
think this is really not satisfactory.
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