Examination of witnesses (Questions 30 - 59)
TUESDAY 2 DECEMBER 1997
MR MICHAEL
BUCKLEY and MR
JOHN TATE
30. No, and that is why as we move to a legislative process
clearly if the Code were just made law it would be inadequate
because it does not give sufficient urgency to any request for
information, nor does it require the responsiveness to be very
importantly rated and, therefore, what would one be looking for
in a piece of legislation that says classes of information are
available? This presumably has to be an officer that polices the
system where if in the first instance the request is made to the
department. What is the mandatory element that is missing from
the Code that would make your job easier and would give a swifter
response to a public inquiry or an inquiry from a member of the
public?
(Mr Buckley) I think that there are a number of
changes that one could see that would make it easier to provide
a quick response. In the first place one could obviously set mandatory
timescales, which is done in the freedom of information legislation
of some other countries. Secondly, if we could, instead of going
through the full panoply of investigation under the 1967 Act,
have a more informal resolution, negotiation and mediation, which
I believe is the way in which typically cases are dealt with again
in other jurisdictions. It would certainly also be helpful if
whoever is policing the legislation had the power to make a determination,
a binding award if you like, because then it would be a matter
of hearing the arguments and saying "that is my judgment"
rather than "this is what I am inclined to think, do you
agree", which is the way it has to go at the moment.
31. I am just wondering if there is an appeal mechanism
which you would think is attractive on that because we do make
mistakes? These are clearly going to cover some very important
areas. I am not trying to now sound as the defender of Whitehall.
Nevertheless, let us say that you would make a determination within
a time ruling and the department actually thinks you have got
it wrong, that this is a breach, and let us take the wide catch-all
area of national security for instance, what would secure this?
It is the attention of Whitehall that would need some securing
in this. Is it a judicial review of this, a reference to the court?
I am mindful of the Canadian system for instance.
(Mr Buckley) Indeed. Another one which I personally
find quite attractive is the one that they are in the process
of introducing in the Republic of Ireland which has a Freedom
of Information Commissioner, that is in fact an office held by
their Ombudsman. There is an appeal from his decisions to the
court on a point of law. It seems to me that is perfectly reasonable.
If one sets up a judgment on balance of advantage it seems to
me that one has to say that the umpire's decision is final otherwise
who is to say one is right and the other is wrong? It is a matter
essentially of judgment. I think a point of law is clearer but
again, as you suggest, it is always possible to ask for judicial
review. All my reports are, in principle, capable of being referred
to the court for a judicial review.
32. Just finally, you mentioned that if you thought under
the present regime this had been so unreasonable, the delay or
the response of the department, you have the power to make a special
report to Parliament. You say that is a very heavy-handed one,
of course. I just wonder, has it ever been employed?
(Mr Buckley) Not in this area. Certainly there
have been special reports, for example the Channel Tunnel Rail
Link was the subject of a special report, but they have been in
the orthodox jurisdiction, not the freedom of information jurisdiction.
33. And none of the delays that you have encountered
so far are like the two years that I gave? I know you are coming
to a conclusion on that one but you must still have open ones.
Is that not a method for not harrying the department but least
ways concentrating their minds fairly formidably? I am just taken
aback by the two years of negotiation between the Ombudsman no
less in this matter and the department.
(Mr Buckley) The threat of a special report does
concentrate the mind. I would prefer to reach a satisfactory conclusion
with the department. A special report applies only when there
is injustice which has not been remedied. However, I can also
put reports in at any time or highlight the matter in the annual
report. If I thought there was a case of the department having
been unreasonable, even if we got the right answer in the end
it would still be possible to draw attention to that fact in an
ad hoc report or an annual report.
(Mr Tate) Recently a Permanent Secretary came
to see me to argue the toss about our conclusions and we suggested
that a special report might be the way forward. We got our response
fairly rapidly after that.
Mr Shepherd: I can imagine. Thank you very much.
Chairman
34. Can you clarify one point arising from your answers
to Richard Shepherd's questions. In the delays that you referred
to which arise from this haggling process, do most of the delays
come before you get to see the documents or after you have seen
the documents but arguing with the Department about whether those
documents can be released or the information contained within
them can be released? Do they block you from seeing the information
for quite long periods of haggle or do they let you see the documents
fairly quickly but then they argue as to whether the information
contained therein falls within or outside the Code?
(Mr Buckley) We have had examples of both, Chairman.
There have been departments who have refused to let us look at
the papers and again it is a pity but occasionally we do have
to draw their attention to the fact that the Act provides very
formidable powers to demand papers, go to the High Court in fact.
There are other cases where even when we have got the papers there
is this process of haggling, as you say, about the interpretation,
whether or not the Code applies. It is both and of course it should
be neither.
35. It should be neither, I suppose in a way the closest
parallel is the Public Interest Immunity Certificate procedure
in these cases of law where a judge is allowed to see the papers
and then makes the determination as to whether Public Interest
Immunity applies or something like that? I speak without any detailed
knowledge but just from having read the newspaper accounts over
the last two or three years.
(Mr Buckley) I have my legal advisor on my left
so we can always be corrected. Yes, if I may say so, it is a very
good analogy.
36. He sees the document the same day basically. If it
comes up in a court case the judge sees the documents the same
day and says: "Yes, that can be released" or "No,
that has to go back to the department and be locked up".
(Mr Tate) I think the important distinction is
the judge can make a binding ruling whereas the Commissioner cannot
and therefore we are in the ball game of recommending which leads
to negotiation.
37. Yes but he sees the documents the day they are requested
or first referred to in court.
(Mr Tate) Not entirely. I think it may take, in
some instances, some time. Clearly the departments which have
documents which are the subject of Public Interest Immunity will
have in mind normally those particular documents when the whole
question comes up before the judge and therefore it is not a major
problem to hand them over. I image Dr Clark will know about that.
(Mr Buckley) The Chairman is right, it used to
be the case that a Minister could say simply: "I give it
class certificate" and say these documents should not be
disclosed.
38. Unilateral?
(Mr Buckley) Exactly. Now, I do not know whether
it is universal but my understanding is it is pretty well the
judge will see the particular documents and reach a judgment on
the balance of advantage between various public service/public
interest matters and the interests of doing justice in the particular
case.
39. In a way what you are saying this morning is the
recommendation that you should have equivalent rights to a judge
so you see the documents pretty quickly and you give a determination
and although you might be willing to listen to representations
from the Permanent Secretary: "Please do not release those",
in the end you would have the right to say: "No, the public
interest outweighs", and give the benefit of doubt to freedom
of information if you like, "release those documents"
unless there are commanding reasons of public interest to hold
them in?
(Mr Buckley) That would be my approach and of
course if we were still operating in the sort of framework of
the 1967 Act then there is power in section 11 for a Minister
of the Crown to give me a direction to the effect that a particular
document, a piece of information, should not be revealed on the
grounds of national security or general public interest.
Mr Shepherd
40. Chairman, I just want to follow on that because I
am worried about the instance which came up in the Public Interest
Immunity Certificates. That was the development by case law founded
on common law. Some of us would argue that the case law then went
off in an extraordinary direction but lost its sense of justice
in the development of this. It has since been adjusted by subsequent
further development of case law. I am concerned that this is not
a process which grows up on usage. If the convention comes to
be very conservative in the release of information then it binds
itself yet more into repressing rather than opening up information.
That is why I am asking on that basis.
(Mr Buckley) Yes. I do not see at the moment any
foundation in the common law for my jurisdiction being better
than any other Commissioner. Maybe if the job was handed over
to the courts they might take that view but otherwise any Information
Commissioner, whether I held that post or somebody else did, would
be a creature of statute and therefore it would have to depend
on the statute.
Dr Clark
41. Two separate issues to take up. Firstly, if you could
help clarify for me how the open government Code of Practice,
that is the second edition, 1997, and the Code of Practice on
openness in the NHS, how they relate together? Am I right in thinking
that the open government Code of Practice relates only to government
departments, it does not apply to the NHS?
(Mr Buckley) That is right.
42. These are two Codes in operation?
(Mr Buckley) Yes.
43. If we compare the two Codes we see that the government
one is extremely negative, it spends all its time telling you
all the things you cannot get and why you cannot get them whereas
if one looks at the Code of Practice in the NHS, it tells you,
for example, all the things you can get, it gives examples of
the types of information which you can get. What I am going to
suggest to you is would it be helpful, do you think, in perhaps
bringing to the attention of people at government level, department
level, if each department tried to do what the NHS has done, ie
sat down and thought of all the things they have and give examples
of all the kinds of information that people could request from
them?
(Mr Buckley) The two Codes in substance are pretty
close.
44. Yes.
(Mr Buckley) The NHS Code has fewer exemptions
but one would expect that because certain of the central government
exemptions just do not apply in the NHS and not all NHS exemptions
have the harm test in the same way. Basically they are the same
in substance. It may be that the presentation could be improved,
it could be more positive, but again I would stress that what
the Government has said is the departments should approach requests
under the Code with a bias towards being open rather than withholding
things.
45. I am concerned, and I share your concern, that there
have been so few applications to the Government, 2,000 a year
strikes me as a very, very small number of applications. One begins
to think perhaps people still do not understand that they can
go along to their local friendly government department and find
out things which might be of interest to them and if each government
department produced something similar to the departmental Code
of Practice in the NHS indicating the types of information that
they could get from each department, that might help to open up
the public understanding that these were ways in which they could
obtain this information?
(Mr Buckley) Again I think one is in the realms
of speculation. I ought to repeat perhaps the point I made earlier,
that the 2,000 requests I mentioned are simply those requests
which are classified by the Cabinet Office under the Code. There
is no question that there are many more requests for information
which go to government departments not mentioned in the Code and
which do not get scored. I suspect that part of the problem, if
that is the right word, or part of the situation is that most
people want information because they have some particular personal
need for it, they are pursuing an argument with a government department
or with the NHS. If I can say a little bit more about the NHS.
We have few complaints, enough under the government Code, we have
even fewer under the NHS. Since that came into force in June 1995
we have had about 50 complaints which is very small. It may be
part of the reason for that is that when people want something
from the NHS it is probably their own medical records and of course
there is statutory provision for that under the Access to Health
Records Act so they may not need to use the Code. All one can
say, I think, is that both departments and the NHS when they are
asked to divulge information obviously should agree if they possibly
can, if they think there are good reasons then they should explain
what those reasons are and tell people about the Code and their
rights under it. That probably does not happen very much and that
may be part of the problem. As I say, I do believe that there
is not a huge amount of pressure out there, as it were, for information
not connected with one's own personal circumstances. An interesting
fact is that although we do not keep the figures in a way which
enables me to give you a precise number - it has to be impressionistic
- we probably get a couple of complaints a week, let us say 100
a year, which are mainly about the orthodox jurisdiction which
has the access to information component of them. People say: "Well,
I am sure something has gone wrong but I cannot find out about
it". Often there is a very close link with the orthodox jurisdiction
and the access to information.
46. It is a two way process, this educating the public
to even think there is a way of getting at information. For example,
we were talking about the war veterans, I am quite sure sitting
at home it would never cross their minds that they might have
rights of getting information about their condition. Most people
do not think in these terms. That is the cause, we do not have
a culture which encourages it. Until we do something about our
culture we are not going to be able to open it up to any extent,
would you agree with that?
(Mr Buckley) I think that may well be right. As
you know, the Cabinet Office did have a publicity campaign in
1996 and we are given to understand that in consequence they received
about 5,000 requests for information about the Code, press leaflets
and the like. However, fairly clearly, not a very high proportion
of those requests were followed through then by requests for information
under the Code, the numbers just do not fit.
47. Can I move to a different point altogether and it
does touch on some of the issues we have talked about already.
This relates to the special category of public interest, one of
the reasons for confidentiality. I am still not entirely clear
what the position is so far as you are concerned. Let us assume
that you wish to see certain information and the department says
"This falls under confidentiality, there is a public interest
concern here". Do you get to look at the papers automatically
or do you have to haggle your way into that situation?
(Mr Buckley) Well, ultimately we do have the powers
to require the department to let us see that information. I have
unrestricted access to papers except for Cabinet and Cabinet Committee
papers. Occasionally it needs a letter or two but in the end we
get access.
48. Once you get access, how do you go about applying
this test? The department says: "This is public interest",
what criteria do you use to decide whether it is public interest
or not and whether it should fall under some confidentiality?
(Mr Buckley) What we expect the department to
do is to produce good reasons for thinking that there will be
some significant harm or prejudice. To say: "It will be a
bit inconvenient" is not good enough. The onus of proof is
on the department to show why the information should not be divulged
rather than on the complainant to show why it should. The department
has got to show why it would be disadvantageous. Obviously it
is hard to discuss this in general terms without a particular
case but, for example, a department reluctant to release a report
which arose out of various financial problems, they had something
which came from the audit report and they do not want to release
that. Now I took the view that it was reasonable for them not
to divulge the names of individual officials because I did not
think it was necessary. Most of my reports are anonymised and
I did not think a commercial company in that position would divulge
the names of its staff but I insisted the substance of the report
had to be revealed because I could not see what damage would flow
from that. The department did not make out its case.
49. In making this judgment do you look to the kinds
of decisions which are made in the courts as a precedent for your
guidance or do you just ignore them?
(Mr Buckley) I cannot think of any immediately
relevant ones. If there was a precedent we would look at what
the court did. Essentially I regard the job the Government has
asked me to do in policing the Code is to apply common sense and
standards of equity and such knowledge of administration as I
have. My belief is that many of the statements that are put forward
about officials - what shrinking violets they are, they will never
tell the truth, there is not the slightest chance until 30 years
has passed - are pretty fanciful, they are not like that.
50. Do you publish your reasons, say you decided that
there would be an enormous problem in some respect? Do you then
set out in public what the danger is that we are weighing against
the individual's right to know?
(Mr Buckley) It is not in public, of course it
is under the 1967 Act. The eventual report on the case obviously
will be sent to the Member and to the department. Yes, that report
will contain a full statement of the reasons why I do or do not
think the exemption Code applies.
51. The individual would know what the reasons were?
(Mr Buckley) Exactly, and of course we do publish
the cases.
Fiona Mactaggart
52. A couple of the cases that you report on raise an
issue which I am particularly interested in - they do not deal
with it as a main issue - which is an issue about the fact that
people have no access to a particular document while they might
have the right of access to information contained in it. Clearly
if you look at the report on the guidance to the complaints procedure
in the Employment Service, although they got it in the end, part
of the frustration that the complainant obviously felt with the
process was to do with not being able to get a nice chunk of the
document free which was the document which did what he wanted
it to do. The Government has not taken this Committee's recommendation
that they should change the Code to give people the right of access
to documents. I would like to know your view about this?
(Mr Buckley) I think very often much the simplest
and most convenient thing for everyone is simply to release the
document. I know that my predecessor said that in terms, I would
say the same thing. I think there are some cases one can see in
which the release of the actual document would not be the right
course. For example, with the example I mentioned earlier, there
are good reasons for not including the names of individuals, for
example one needs to anonymise, and in those circumstances it
is quite easy for a department to sanitise the document by taking
out the name.
53. You do it effectively I think after all?
(Mr Buckley) That is right. There may be some
documents which are expressed perhaps in stronger language than
the author might want to be made public. One can see some reason
for vulgarisation but in general - -
54. Why vulgarisation? I want to pick you up on that.
I absolutely accept your point about anonymising, I think that
is perfectly proper, but why should a department which is perhaps
using rather gung-ho language in its advice to officers be able
to water down that kind of language before it comes out into the
public domain?
(Mr Buckley) I think all of us say things in private
which we might wish to rephrase were it going to be made public,
I would not put it any stronger than that. One is starting to
get away from information and into judgments. I think, as I said
to you, people do make remarks about merits of an issue or individuals
as well which they might not necessarily want to see the light
of day. I agree there is the alternative, they ought to say things
that they would be prepared to stand by.
55. Do you not think we would have a better public service
if people did?
(Mr Buckley) It depends what it did. Certainly
one can think of cases where civil servants have made judgments
about individuals which go to the substance of what they are asking
for which could not be substantiated. I agree that in those circumstances
one should be able to pick that up. However, certainly I would
investigate it and I would pick that up and say: "This was
a judgment that was ill-founded". I understand the point
that is being made and I sympathise with it. I have a slight reservation
about taking some of the colour out of life, that is all.
56. I think if civil servants could justify all of the
observations they made and upon which they based their judgments
we would end up having a better governed country, do you not agree?
(Mr Buckley) I am quite sure that civil servants
ought to be required to justify, if it comes to that, any judgments
that they make on the substance but, as I say, I would not necessarily
want every unguarded remark to see the light of day, that is all
I am saying.
57. Has there been any result that you have seen from
the commitment to begin to publish internal discussions of a decision
after it has been announced? That was in the response of the Government
to our predecessor Committee's report which says: ".. when
a major decision is being announced, consideration should be given
to whether any of the internal discussion preceding the decision
might be published". Have you come across any of that in
your work?
(Mr Buckley) I do not think it has come that way
in the course of our work. One can think of some instances, decisions
published six weeks in arrears, the discussions between the Chancellor
of the Exchequer and the Governor of the Bank of England, but
I cannot think of any other cases. It does not impinge on our
consciousness basically because obviously we just see the complaint.
Fiona Mactaggart: I am pressing on these policy bases
because we are coming to a point where we are likely to have legislation,
it is very possible that freedom of information legislation will
suggest that there should be an Information Commissioner. People
suggest you might be a candidate for it, do you think you should
be?
Chairman
58. It could be you, as the National Lottery says.
(Mr Buckley) Whoever. I think the right answer
is to have a separate freedom of information jurisdiction but
to attach it to whoever has the jurisdiction over what I call
orthodox complaints. As I said earlier, we do get quite a significant
number of mixed complaints, people usually want information in
order to pursue some argument they have with a government department
or a local authority or a National Health Service body. I think
it is highly convenient for them and it would be highly convenient
if it was in the reverse to have the jurisdictions linked. A further
point which ties in with that is it does seem to me that the existing
complaints procedure, Ombudsman and the like, within the public
services is an extraordinarily complicated affair. In most overseas
countries there is simply the Ombudsman, one institution which
looks at the public services: local government, central government,
health if it is public, the police, prisons, education, whereas
we have got a whole series of quite separate institutions. It
is very complicated for people and if, as can happen, complaints
straddle the two, for example arguments between an NHS Trust and
a local authority social services department, it is very difficult
for people to pursue those complaints effectively. I think it
would be a great pity if there was a further complication by having
a separate freedom of information jurisdiction and it would get
all the more complicated with the prospect of devolution to Scotland
and Wales. I assume that they would want their own complaints
systems just as is the case in Northern Ireland, there is the
Northern Ireland PCA and the Northern Ireland Commissioner for
Complaints. To have a quite separate body looking at freedom of
information seems to me to be a recipe for even more complexity
than there is now.
Fiona Mactaggart
59. Mr Shepherd in his questions highlighted some of
the delays in the present procedure. If we were to have what the
Minister called an all-singing, all- dancing Freedom of Information
Act you might have a lot more work, presumably you would get more
money also to do it with, but do you think you could reassure
us that you might be able to deal with things more swiftly if
you had that responsibility?
(Mr Buckley) Depending on the legislation yes,
I think I can. As I told the Committee at an earlier session,
we have substantially reduced throughput times, both the NHS side
of the office and the Parliamentary side of the office, and I
am confident that we can do still better. Another thing that we
are doing in the office is to change our staffing policy. In the
past the office has been staffed almost entirely as far as investigation
and screening are concerned by people on loan, three year contracts
extendable to five. I believe the office needs a significant proportion
of permanent staff who will be more experienced, who will be more
flexible, who will be able to move between different parts of
the office and adopt different working methods according to the
requirements of the work. Yes, I think I can give the Committee
that assurance.
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