Examination of witnesses (Questions 90 - 119)
TUESDAY 16 DECEMBER 1997
RT HON
DR DAVID
CLARK MP and MR
CHARLES RAMSDEN
90. Why was immigration particularly excluded?
(Dr Clark) It was generally felt that by giving
too much information on all these issues, it was not compatible
with the objectives of good government. This was a generality
which was concluded.
Mr Hancock: It was pretty fundamental to freedom of
information that people would have a right to know the real reasons
why they were excluded from entering into the United Kingdom,
particularly from their family's point of view. At the moment
there are a lot of people who are completely bewildered by the
decisions that are made. Members of Parliament can get no further
than a letter which gives them the brush-off. I would have hoped
that we could have a clearer pattern emerging that this information
would be readily available. I hope, Minister, that you take that
on board. That some discretion, at least, ought to be built into
this. That through a third party interceding, that this should
at least free up that information. Thank you.
Chairman
91. To return very briefly to the point Mr Ramsden was
making earlier; in a way, freedom of information legislation in
the USA and in New Zealand can act as a Stalker's Charter - is
that what you are saying? - but that you are satisfied that the
British White Paper and Bill model can avoid any such danger.
Is that what you are saying?
(Dr Clark) That is our hope. The whole point,
as I have said so many times, of the visits overseas, was to talk
to the people - not only the officials, but to talk to the people
who used it - to get this sort of information. Another example
was put to us in Canada - a very obvious one. Historians would
come to us and say, "Look, we now find it more difficult
to get more information in Canada on historical documents under
our Freedom of Information Act than we did before. Now, if in
fact those documents relate to a third country in the international
scene, we are not allowed to get hold of those documents and we
have to go to Washington to get them." If there is an agreement
between United States and Canada, they have to go to Washington
to get the information now as opposed to Ottawa. That was a very
practical example. The other one was your rather clever phrase
of a Stalker's Charter; we must not let that develop. That is
something we picked up from our experiences.
Mr Shepherd
92. The White Paper is drawn in such a way that matters
such as deaths in police custody and the use of CS gas would be
excluded. As I think we both agree, the making of public policy,
etc. seems to be a fairly standard item of information. Just on
other investigatory bodies for instance under other departments,
it seems odd that environmental information that may have a wider
remit could be protected because it comes under an investigatory
element within that department.
(Dr Clark) On your latter point, that is not
the intent and clearly that is something we have got to get right.
As the Committee knows, of course, this is the first stage of
a three stage consultative process. We then have the draft Bill,
and it is very important we have that draft Bill, and then the
final Bill. Certainly that is not the intent of the White Paper.
We want to bring in most of the environmental disclosure which
is from other legislation within the scope of this Bill. We do
not see it as a way of withholding the investigative procedure.
Clearly, there are difficulties. Let me try and give you another
specific example. I mentioned before about the amount of fraud
in DSS. We are all aware of it. As constituency MPs we come across
it every day. We know the abuses that go on and the difficulties
involved. There is the hot line where people are reported and
there is a considerable amount of public money which was previously
going on fraudulent claims being saved as a result. Clearly, information
given into a hot line really has got to be protected otherwise
you would then be in the land of the Stalker's Charter. So we
have got to build in some protection. You cannot have complete
disclosure. I have heard what you said about the police and the
other agencies and we certainly do not want it to be the case
that there is blanket protection against all the investigatory
bodies. That certainly is not the case.
Mr Kemp
93. It does appear that there is fairly widespread support
from all Parties in the House for the White Paper. Can I offer
my congratulations on your performance with Mr Tariq Ali on Thursday
night. I was one of the few watching in the wee small hours. I
think right to know is important, but right to know is only effective
if people know they have a right to know. My worry about freedom
of information is in the sense of how the ordinary citizen is
aware of it. The experience of other countries is that highly
paid lobbyists and lawyers soon become very expert in how to operate
the Act for all sorts of reasons. Assuming the White Paper becomes
an Act and it is on the statute book, are you going to be looking
now at ways of actually informing people of their rights? One
of the reasons I ask this is because I had a case in my surgery
a month ago where a young constituent lost out on a job because
the state held a piece of information that happened to be incorrect.
I think there needs to be some thought going in to make people
aware of it. As it happens, she talked to somebody who suggested
she came to see me and we managed to get the issue sorted out.
If we are going to have the right to know then everybody needs
to know, not just those in pressure groups and lobby groups and
lawyers.
(Dr Clark) Can I just deal with your narrow point
at the end about some incorrect information being held by central
government departments or by public bodies. We quite specifically
recognise this in the White Paper. We say that if in the course
of the operation of the Freedom of Information Act it is discovered
that incorrect information is held on an individual that will
be able to be corrected, it is so under the Data Protection Act
and we actually make specific proposals in the White Paper for
that to be taken care of. On your wider point, it is important
that we get the publicity on this and we get the message through.
Initially to start with, as well as putting the larger document
on the Internet (and we realise that that does not cover a very
large number of people) we have produced this document which I
hope will be a simple guide as to what we are actually proposing.
As we go through each stage we will be updating this and as we
anticipate the Bill becoming an Act we would want to have considerable
opportunities to try and publicise it. We may well find that Members
of Parliament themselves make use of it because it may be a better
way to get more detailed information than just asking Parliamentary
Questions. I think you will find political parties will also be
making use of it. That was the experience in New Zealand especially.
I think they were saying in New Zealand that one of the main users
of it were the research assistants of political parties.
Chairman
94. Was this to raise money?
(Dr Clark) I had not even thought of that. You
are ahead of me, Mr Chairman, in that. There is a down side to
this and it is something we are going to have to address, which
is that in the United States there is a huge industry built up
around freedom of information. Specialised companies are formed
to get information, either by acting on behalf of individuals
or companies, or by getting the information and then sometimes
by publishing it in a niche market. That is in a sense one of
the parts of the exercise which is just a byproduct we have got
to accept. I think the way to try and deal with that is actually
to have the much more proactive releasing of information by central
government and that in a sense makes it much more difficult for
these companies to prosper and to profit. I think the Internet
does give us that opportunity to easily put the information on
and it is so relatively cheap to do that. I hope we will use much
more of the Internet to get information released in that sense.
Mr Campbell
95. Minister, we received a letter from the Campaign
for Freedom of Information congratulating you on your new Act
and they were saying how it goes further than they anticipated
any British Government would go. That is a fairly good recommendation
coming from an organisation like that. As you said before, I went
to Australia with the last Committee on freedom of information
where you work very hard but nobody says you are working hard
but yourself and I was very interested in what was happening across
there because they were actually updating it, they were making
it a bit tighter and better. One of the things that came out was
the use on personal files of the yellow perils and what was happening
in Australia was basically they were getting a file on someone
and they were putting these notes on it and just about anything
could be written on them because all you needed to do when anybody
requested that was to take it off and then go and photocopy it
and then bring it back and stick it back on again. So the information
that you were looking for was taken off. I do not know whether
there is something in the Act to stop the shredding of information,
but you cannot stop that. It is going to be difficult if that
sort of thing starts to expand like it did in Australia. I am
wondering if there is any way that we can stop the use of these
personal notes on files which no-one can get access to.
(Dr Clark) What you say is an interesting point
because it substantiates the point that I made previously about
policy advice in Australia. I talked about corridors and men's
toilets and I think that is where this information is disseminated
in essence so often. You also highlight another point. We quite
clearly have partly anticipated a situation in which we actually
do have proposed legislation for the wilful destruction of records.
That is the other side of it. We thought that was very important,
wilful and reckless destruction plus the power of entry. We think
that the Information Commissioner should be given this power if
he suspects that information is being withheld. The point about
the yellow peril is well put. The furthest we go is in 6.12 of
the White Paper when we look at the issue of record keeping, because
clearly this is going to revolutionise the record keeping not
just in central government, because we have had to cope with that
and we are going to have to cope with it even more so, but certainly
in other public organisations and, indeed, occasionally in non-public
organisations because it is no use having a Freedom of Information
Act based on records, which is a very liberal way of operating
a system, if the records are not kept or if the records are altered
or if they are not retrievable. We will try and deal with this.
We end off by saying we propose to place an obligation on departments
to set record management standards and we will try by a Code to
deal with it. Whether it is possible to deal with it by legislation
I just simply do not know because it would be very very difficult
indeed, but certainly any proposals we would be interested in.
96. Could we not make it an offence to put stickers on
somebody's file? If you are going to add something to somebody's
file it should be a proper paper added to his file, not a sticky
piece of paper that can be taken off and put on at any time of
the day.
(Dr Clark) I agree with the main thrust of the
point you are making. I do not know whether you could make it
an offence to do it. I suspect there may be very good reasons
why you would put a bit of paper on it, for example saying, "Leave
on my desk, I will deal with this tomorrow." I can see that
happening with me when something it is in my Red Box and I have
got to do it in the morning, I have not got my mind round to concentrating
on it and so I might put a yellow sticker on it and say on it,
"Put this in my box tomorrow night." I think that is
quite legitimate and nothing to do with the content of the document.
97. What I saw happening in Australia was not right because
they are not getting the right information, they are cheating
with these yellow perils, they are putting different things on.
They agreed in Australia that they were cheating. It is something
we have got to try and get round.
(Dr Clark) It is a very very good point and I
think it backs up my point about being straight and honest about
policy advice. This is not strictly policy advice, but I guess
it applies even more so in policy advice.
Chairman
98. The deviousness of Australian civil servants obviously
defeats anything we had previously thought could possibly happen
in this country. In paragraph 5.14 you refer to this new criminal
offence of destruction of documents. I suppose it is possible
that the addition of yellow post-it supplements to a document
could in some way be covered by that. I wanted to ask you more
generally about this issue of the criminal offence that you are
going to propose. Will the criminal offence be part of this legislation
itself or will it become an additional clause to a Criminal Justice
Bill going through the House in advance?
(Dr Clark) I think the truth is we have not finally
decided.
99. If the new criminal offence only comes in on the
same day as the Freedom of Information Bill actually becomes an
Act and becomes law then one can well imagine a huge process of
weeding and shredding taking place before that becomes an effective
criminal offence and what we will see in Whitehall is a lot of
paper shredding machines with burnt out motors as you come into
the run up to midnight on March 31 1999 or whenever it is going
to be. If it is going to become a criminal offence the following
day then you will want to do your weeding and shredding in the
period before that. So really the criminal offence should take
place as soon as possible by a rider to a Criminal Justice Bill
going through the House this year, should it not?
(Dr Clark) I see the force of your argument. I
hope it would not happen.
100. We all hope it would not happen. In the light of
the Australian experience, shall we say.
(Mr Ramsden) There are already statutory requirements
primarily through the Public Records Act on public officials to
keep and maintain and preserve records. I do not think it would
be a case of saying, "Until the flag goes down you have got
carte blanche to destroy whatever records you want" and therefore
I hope that the issue would not be as critical as you have implied
it might be. What the provision sketched out in paragraph 5.14
would do would be in a sense to apply the existing type of requirements
which do already exist for public officials to keep records properly
and place them specifically within the context of an Information
Commissioner and the Freedom of Information Act so that they would
then be related to a prospective investigation of the Commissioner,
but I do not think it is an all or nothing situation.
Melanie Johnson
101. I am delighted to see the scope and the thrust of
what is here in front of us at this stage. There are two particular
areas that interest me at either end of the spectrum. One is the
area of information that is made available as a matter of course
so that the public can gain ready access to it. You have already
mentioned the Internet. I do not think there is provision at the
moment in the White Paper which makes any particular reference
to requiring certain sorts of information to be made available
by departments routinely on the Internet and I wondered what your
thinking is at this stage about that particular issue. Secondly,
at the other end of the spectrum is the area in which there may
be issues about releasing information and your substantial harm
test and, indeed, the harm test. There are two separate criteria
in Annex C because obviously the integrity of decision-making
and policy advice is subject to causing harm and other matters.
The seven specified areas that you talk about throughout it are
causing substantial harm. I wondered, first of all, why the difference,
although perhaps to some degree you have answered that in the
point about giving government space, but I would be very interested
to know how it is going to be defined because it is a question
of definition. Apart from the Commissioner, who is going to take
the initial decisions in departments about whether something may
cause substantial harm? Are you proposing to give examples of
things that you would think constitute substantial harm or to
give guidelines to those of us looking at this issue in the run
up to legislation as to what your thinking is or the Government's
thinking is on that subject? You say in paragraph 3.9, "...
whether a disclosure would cause harm or substantial harm to any
one of the specified interests." It is very easy to see how
you could put something under one of those headings for almost
anything. I think it does reinforce the need to actually look
at examples of what that kind of definition would be.
(Dr Clark) Perhaps I can deal with them in the
order that you actually make them. In a sense apart from personal
information one would like to be in a situation where no-one ever
makes use of a Freedom of Information Act, the Government just
puts some information out as a matter of record and when I talk
about a change of culture that is really part of what I have in
mind, a proactive culture, the proactive release of information.
It is not only a change of culture. To utilize freedom of information
costs a department. It costs not only in financial terms, a request
has got to be addressed within a specific time and that means
that the use and the time of the official concerned is not really
at the disposal of the manager of that particular department.
Therefore, it is more expensive to actually release information
under freedom of information requests than it is to do it proactively.
What I will be trying to get across to departments is, "Look,
if you publish the information you do it at your time and at your
convenience" and it is a much cheaper way of doing it. So
I think we need to use the financial incentive to get people to
add to the change of culture to proactively release the information.
I think that will help matters. On your harm test and your substantial
harm test, one of the great difficulties is defining what is harm
and, of course, that came out in the courts when we were dealing
with the PII, the Public Interest Immunity Certificates and the
test of disclosure and in that case it is basically substantial
harm. Perhaps I could also make a point and almost run through
the system. Let us say a request is made to a department and it
is made to what I would call the Compliance Officer in that department.
He or she will get the request and he or she will access the document
and just look at the document. Clearly, in many many cases these
will be trained people and it is maybe just a subject request
about information affecting you and in that case a person will
glance down and at the back of his or her mind you will have the
seven specified interests, but clearly it is not to do with national
security, it is not to do with policy advice and that information
will almost be released without really sitting down and measuring
it formally against the specified interest. Let us take a more
complicated one. The information will be accessed, it will be
in front of the Compliance Officer and it will then be measured
against, certainly in the first six cases, whether this causes
substantial harm to the personal privacy, etc., etc. In the latter
case, if it is policy advice, does this cause harm to the integrity
of government? And we are pretty specific about that, as you know.
We make certain points there. That is how the process would work.
In order to get there there is going to have to be a considerable
amount of training and some of this will come from experience.
In the training process I would anticipate that you could only
do this by giving hypothetical examples which will make it easier
for the Compliance Officer to make judgments when making the initial
decision on whether information should be released or not. I do
emphasise the point that you obviously take on board but not everyone
has taken on board which is that substantial harm means it is
more difficult to withhold a document because what you are saying
is that this information should not be withheld unless it is going
to cause substantial harm to whatever specified interest. It is
quite a liberal interpretation of that. We will have to get examples
in our training process so people can make some judgments on those
issues. I think I have answered your point about harm and policy
advice because we accept that government needs space to operate.
102. I will not pursue that particular point. On substantial
harm, I do not think you have defined it and I do not think it
is currently defined here. There are two points, one is to have
a definition of some kind which obviously then has to be interpreted
in certain ways and examples of interpretations which means in
a sense they are provided beforehand and it seems to me that both
would be highly desirable. I welcome your response that you will
be looking to provide examples, but I hope that will be earlier
on in the debate, at least at the point at which we have a draft
Bill in front of us so that we can see what the thinking is on
this particularly sensitive area about it at an earlier stage
than actually at the stage later on after legislation in which
staff will obviously have to be interpreting the law. I would
still like to know what the definition of substantial harm is
on this. Obviously, the specified interest, damage to whom, substantial
harm to whom is the question. The object of the substantial harm
would not necessarily be the same organisation, government or
individual, in the case of these various areas that you have specified.
I wonder how much further thought you will be giving to that question
in relation to the seven specified headings.
(Dr Clark) I think one of the challenges that
we have to face is that there is some legal context within which
real harm and real damage operates. One of the challenges we have
got when drawing up a document - and I am sure we all share this
sentiment - is to try and make it meaningful to the ordinary citizen.
Unless we do that we will offend. The whole way in which we have
tried to draft this White Paper was not with big business in mind,
not with the press even in mind but with the ordinary citizen.
On 11 July this year the Attorney General spoke in the House about
the PII. Let me just quote what he said, "Public Interest
Immunity will not be asserted by the Government unless the relevant
Minister believes that the disclosure of a document or a piece
of information will cause real damage to the public interest."
So that is how he sees the PII operating. Of course when we are
looking at real damage we can see how it operates in the PII and
we can see how it could also be cumulative on occasions. I think
there is an analogy between substantial harm and real damage which
is that in both cases embarrassment to the originator of the document
cannot be used as a reason for withholding information. So you
cannot just withhold it because it embarrasses the person who
has written it down. There has got to be real damage caused by
that particular release. Our appeal system emphasises the importance
of getting the right person being the Information Commissioner
at the end of the day and bear in mind the point I made which
was that the real purpose of the Act will be the release of information.
Mr Shepherd
103. I had assumed that Whitehall had employed a series
of classifications going back many years and when one is talking
about damage harm, etc. one is looking across Whitehall historically
and therefore there is a significance between significant damage
and just harm. Last Thursday I was trying to see how it relates
to existing Acts such as the Official Secrets Act where in point
of fact you have already a damage or harm test set through it,
but something like information given in confidence by a foreign
government actually is a very low test, whereas yours is a very
high test. How is this being resolved? What are the arguments?
I gave as the instance Council discussions in the European Council.
This is now legislature for the United Kingdom. It makes law for
us and yet we are excluded from having information on how the
debates went within that. That would be like imposing a blanket
ban over debates in Parliament, for instance. It was that relationship
I was very interested in. Which harm test will apply? Is it the
one in the Official Secrets Act or is it the harm test that you
have sought?
(Dr Clark) On your first point, you are quite
right, obviously there is a series of classifications and I have
had a look at these to try and match up their substantial harm
and certainly substantial harm and substantial damage is a term
used at the confidential upwards sort of classification, that
is quite right. We have tried to measure these two. Since you
asked your question last Thursday we have started doing a little
bit of work because we have said all along that the purpose of
freedom of information clearly was not to release state secrets.
In broad terms that is quite clear. Therefore, there had to be
an interface and a parallel working between the OSA and the Freedom
of Information Act. As you know, I think there are only six fairly
narrowly defined exempted clauses in the OSA, but they are subject
to a harm test and we have got to make sure that these two actually
match up and work is going on at this stage really pursuant to
your question the other day, but I have got no answer to your
question at this stage.
Lynda Clark
104. I would like to ask you some questions about the
interface between the Information Commissioner and the law courts.
Have you given any consideration to making the Information Commissioner
the High Court judge at least for an initial period bearing in
mind the fact that the initial period will be critical in developing
the practice and giving content to definitions of public interest?
(Dr Clark) I do not know if I even dare tread
on this territory. Let me say that one of the things that struck
me in the United States and I found unsatisfactory was the sense
that there was no appeals system built into the Act, you went
from the refusal straight into litigation in court and I thought
that favoured big business, I thought it favoured the press and
I thought it worked against the ordinary citizen. That is why
we came down in favour of the Information Commissioner built in
to the system; it was understandable to the ordinary citizen.
Who that person will be is really a matter of judgment for the
time. Obviously, I would not rule out a High Court judge. I hear
what you are saying, but I think there are equally strong cases
for a journalist, for a retiring politician, for a liberal civil
servant, one could go on, but I would not like to preclude anyone
at this stage.
105. So there may be a range of options?
(Dr Clark) There is no reason why it could not
be considered.
106. If we get to the situation where the Information
Commissioner has given a decision and one other party wishes to
take that to judicial review I think you envisage that there will
be a judicial review hearing.
(Dr Clark) We do indeed.
107. If it is an individual they will not have the money
to do that. If we look at it the other way round, in the sensitive
cases it will be the Government or the department who will wish
to initiate the judicial review proceedings. That means that the
individual will have no way in to legal representation. How is
this going to work? If we assume that most of the judicial review
applications come from the Government with unlimited funds for
these purposes how are we going to balance the interests of the
citizen who is suddenly faced with a judicial review when he has
been told by the Commissioner that he can have the information?
(Dr Clark) Can I just challenge your point? I
do not challenge the main thrust of what you are saying, it will
favour bodies that have access to finance. I do not know what
we will find and I think experience abroad shows that government
will not normally challenge the recommendation of the official
independent Information Commissioner simply because not only has
he got the mandatory authority of Parliament to act on this basis
but, also, the information almost certainly will be a case of
disclosure so it will also be in the public domain and I do not
anticipate the Government departments making much use of the judicial
review system. Certainly that has been the experience with the
Parliamentary Ombudsman and we actually see this as very much
a parallel existence and role as with the Parliamentary Ombudsman.
So we do not see that actually happening.
108. I am thinking of cases, for instance, where the
Information Commissioner has said to an individual or to a pressure
group perhaps, "Yes, you can have this information and okay,
it is very sensitive and everything else but you can still have
it." There may be cases where the department is horrified
by this and does challenge it. In these circumstances is any provision
going to be made for the individual to get legal representation
bearing in mind the fact that they may not have qualified for
legal aid and, if not, how is a balance to be struck in the court
because in that circumstance what you would have is the Government
using lawyers for judicial review and really no contradicter?
That does not seem very fair to me.
(Dr Clark) It certainly is not very fair. We operate
the system with the official Ombudsman at the moment. I do not
think it has been a particular problem. As I understood it from
discussing it with people, it has not been a particular problem,
but it may well be that there are more cases. Backing up the Government
point, certainly the New Zealand Cabinet itself has the authority
without even going to judicial review to overturn the Information
Commissioner's recommendations and they have never actually used
it for fear of public opinion.
109. But if it is not going to be a problem in the sense
of a lot of cases that this will happen then is there not a case
for making some sort of provision so that in the odd case where
it does happen there is provision for some way in which the individual
can be represented to oppose this?
(Dr Clark) I am not sure that should be something
within the Act and whether it is within our general legal system,
so to speak, where we are talking about legal aid. I do not think
you could actually say a certain pot of money would be made available
outside a formal legal aid system to facilitate appeals at this
particular level. I think it has got to be within the system.
110. The present legal aid system is not particularly
geared up to this and most people will not qualify on financial
grounds alone for this. If we are balancing the interest of the
state in withholding information and the interest of the population
in getting it, it does seem unfair that the state has access to
the courts and the individual does not.
(Dr Clark) I would be deeply concerned if individuals
were penalised with this. I do not think there is a real problem.
Certainly with business I would agree with that. I suspect that
if it was such an important issue the pressure groups themselves
would be able to raise it. It is the case of the individual and
a very narrow point. It is something which we have not built into
the system, although I do see the force of your argument.
111. I am also concerned about the timing because although,
for example, businesses or pressure groups may have the money
to fund the action if it comes to judicial review, once judicial
review starts you are obviously aware that there is the appeal
system and then there is the House of Lords and we could be talking
about two to three or four years before there is a decision. If
that happens in sensitive cases it does seem that what you could
have happen is that the Government or the department one way or
another will make sure that this information never sees the light
of day until it is too late for anybody to be interested in it.
I am concerned about that as well. Have you had any thoughts about
that?
(Dr Clark) In a sense you are making my point.
This was one of the reasons why we felt that there should be an
independent appeal system within the Freedom of Information Act
really to obviate any delay at that stage. Once you get outside
the purview of the legislation, once you get into the general
legal system I do see the dangers, but to argue that there should
be precedents for this type of appeal against the generality of
judicial reviews and delays involved I think is rather a difficult
argument and it is without the scope of this particular Bill.
All we can do is to try and minimise the situation where you get
judicial review sorts of appeals, but those will happen, one has
got to accept that, and it is right and proper that they should
happen. I would argue it is without the scope of the legislation.
112. If you could have a maximum time limit in the legislation
otherwise a final decision must be made within six months or a
year then that would mean that the legal process should be geared
up to deal with that. This happens in other fields where maximum
time limits are given and any appeal, even to the House of Lords,
would have to be done within that timescale so it would be expedited
within the court procedure. What is wrong with that?
(Dr Clark) If it is possible to do it without
squeezing out other cases then in principle I have no difficulty
with that. In principle it may mean in essence the rationing of
judicial time in that if this gets precedence something else moves
down. I think one has got to weigh the balance up in that case.
113. Could I just ask a few questions about Scotland.
As I understand it when the new Scottish Parliament is up and
running they will have the power to devise their own equivalent
or whatever legislation if they wish. How will this work in practice
bearing in mind that some of the issues, such as social security,
are obviously reserve matters for Westminster? Do you envisage
two Commissioners, perhaps one in Scotland and one in England
dealing with different things?
(Dr Clark) I think that is up to the Scottish
Parliament. What we are saying is anything which relates to the
reserve powers will be covered by this Act and there will be an
Information Commissioner here and, of course, as Members of Parliament
we are making up the case. Whatever the Scottish Parliament wants
to do in this respect really is up to them. It is really as simple
as that.
Chairman
114. So it is UK-wide as regards reserve powers with
respect to Scotland?
(Dr Clark) Yes.
Chairman: I am not sure if I should be deeply comforted
by that as a Welsh MP or disappointed that the Welsh Assembly
does not have its own right to make up its own mind on the application
of freedom of information in Wales, but I understand now why you
have said it is a UK-wide provision and Scotland can make up its
own mind as regards the devolved issues.
Mr Bradley
115. I think you can gather from this morning's proceedings
how welcome the White Paper is and how difficult, frankly, it
is to find substantive criticisms to make. My concern is that
so far we have established that it is a wonderful White Paper
for the chattering classes, although I am not sure in the long
run whether it is actually going to extend the range of topics
that people can chatter about or whether it will limit them because
we will get better governance or, indeed, we will get less information
committed to paper. I suspect that it has a great application
for the chattering classes. I wanted to know really what difference
it is going to make to every day life. I was very pleased to hear
you suggest that freedom of information is not an end in itself,
it actually is about good governance. What difference do you think
it will make to the way that government conducts its business?
(Dr Clark) As I was trying to indicate, I just
happen to believe that in a sense information is power and I am
very much aware of the jibe that this is seen in many cases as
the preserve of the chattering classes. From day one I deliberately
tried to challenge that assertion and produced a White Paper which
I hope will turn into legislation. I think the opportunities for
the ordinary citizen are great. Clearly, the fact they can see
their DSS file is an obvious one. They will be able to ascertain
from their local hospital trust what the mortality rates are for
X, Y and Z. To inform people is very much better. Also, I think
it will help them to try and redress the balance between officialdom
and the ordinary citizens. I can see the case where there may
be a proposal for an airport extension. It would be of great benefit
to the residents to be able to find, and hopefully get, factual
information which the Government holds about the projected air
traffic movements on that airport for the next ten or 15 years.
One of the things that I am impressed about as an MP, and I think
we all share this, is the ingenuity of our citizens. I have people
who come in and you would think they could not add a row of beans
together. One of the great disappointments of our society is that
we have not always tapped the skill of other people and hence
our emphasis so much on education. I think if we can get the information
out to people it will enable them so much more. As one of the
papers said the other day, really this Act will turn the people
of Britain from subjects into citizens. I thought that was a clever
way of putting it.
(Mr Ramsden) Could I add some statistics to underline
that answer, which is that the experience that we seem to have
observed across the world is that almost inevitably wherever there
is a freedom of information regime, if it includes personal information,
as virtually all of them do, then it seems almost automatically
to end up being primarily used by individual citizens. The Australian
Act, for example, has something like 90 per cent personal requests.
Even the Code of Practice on Access to Government Information
where the sources of requests have been monitored as best we are
able to do it across central government year-on-year, the most
recent monitoring report on that for 1996 showed that 47 per cent
of the monitored requests came from individuals, the next highest
category being 16-odd per cent from business and corporate interests
and the media and other interests, lobby groups and such like
quite a long way below that. The inference that we draw from that
is not so much the very limited use that certain groups make of
it as the very large use that inevitably individual people seem
to make of all these regimes.
116. Can we be confident that it will lead to more open
government as opposed to more deviously secretive government?
There must be a concern when we are talking about record keeping
that the most sensitive information will not be committed to paper
and therefore will not be accessible to the public. I wonder whether
you have considered setting basic standards for minute taking
- let us limit ourselves to meetings between civil servants and
their Ministers - so that we can diminish the opportunity for
advice whispered in corridors which, frankly, is the key advice
in information decision-making?
(Dr Clark) I share your sentiment. At the end
of the day so much of it is going to depend upon we legislators,
upon we Ministers, or local councillors to keep the pressure up
on this one. Once we get the snowball rolling, which I think this
Act will do, we have got to keep it rolling and that is why I
came back to my point about progressing. Equally, the reason why
on balance we decided that there would be a different harm test
for policy advice to Ministers was really to be very honest and
to try and address this problem. I think we will actually find
that because we have got a simple harm test the policy advice
to Ministers will be given probably in the way that it has been
given, in writing and I think that is a good thing. We do make
the point that records are actually kept, but at the end of the
day certainly I think it is up to we Ministers and we legislators
to keep the pressure up on this one.
117. Can I explore the presumption to disclose, which
is admirable, that actually we should be seeking to develop a
culture in which government and other organisations and bodies
make public information available as part of the service that
they provide. There is a danger, is there not, of information
overload and the problems that go with it? How is the citizen
to know, particularly if we are to discourage fishing expeditions,
what information does exist? I can imagine that asking government
departments and others to go back over their records and their
indices would be a horrendous task. Are we now going to require
in future bodies to index the information that they do hold so
that we may know what is available and we can save ourselves a
lot of time and save those organisations a lot of expense?
(Dr Clark) You raise a very good series of points.
It emphasises the point I was making right at the beginning, i.e.
it is not only the general points of principle, the devil is in
the detail of the operation of this. You made the point that if
people do not know what records are held it really makes it rather
meaningless. Equally, we have taken a decision, and I think it
is quite a bold decision, that this legislation will go back.
It will not be subject to any time constraint and if you want
to get hold of the Lindisfarne documents, assuming they are public
property, Mr Campbell, you will have access to them. It goes right
back as far as official public records were actually kept.
Mr Campbell
118. They should be in Newcastle where they belong!
(Dr Clark) You could not index everything in the
past. I see the problem in the future. I think departments may
want for their own convenience to work out some form of index
or list and if they do that then certainly it would be my intention
that that information itself will be subject to the freedom of
information. So the citizen could actually have access to the
index or indices.
Chairman
119. Sweden has this now, has it not?
(Dr Clark) Yes. They have got it going right back
to 1787 or something,[1]
so they have got a long long tradition. The electronic system
of documents is going to be the way forward. It should be much
easier to index it and give access to the index as well. It makes
it so much easier with IT. I think the problem in ten years time
is going to be much easier. I think it is how we deal with recent
documents and documents we have at the moment, which are paper
documents. I think that even for their own convenience departments
will be wanting to develop indexes and lists if they possibly
can. If someone requested that they wanted today's documents relating
to the air traffic movements in a particular case I think that
would be sufficient for the department to be able to identify
it and retrieve the information. It would save time if they knew
exactly what to go for.
1 Note by witness: The Swedish Freedom of the
Press Act was in fact passed in 1766 Back
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