Examination of witnesses (Questions 120 - 132)
TUESDAY 16 DECEMBER 1997
RT HON
DR DAVID
CLARK MP and MR
CHARLES RAMSDEN
Mr Bradley
120. I wanted to look at the role of the Commissioner.
One would not want to prejudge the appointments process, but I
hope that he or she will be a campaigner for the people rather
than an establishment figure or a superannuated mandarin. Can
I just clarify something that you said right at the outset about
the Commissioner's own rights to see information. Will that exclude
information which is exempt from the Act that an individual may
wish to challenge or will it only apply to information which is
the subject of an appeal under the Act?
(Dr Clark) His/her action would be sparked off
by an appeal, but he would have the right to see any documents
which are covered by the Act, which is everything that is not
excluded.
121. So you cannot appeal against something which is
excluded and he or she would not have access to that material?
(Dr Clark) That is right, not to anything excluded
from the Act for the simple reason that the Information Commissioner
is a legal entity and his responsibility is for everything which
is covered within the Act but not for anything which is outside
the scope of the Act.
122. It seems to me to be absolutely key that an individual
seeking information should have that information provided, whether
in the first instance or subject to internal review or appeal,
as quickly as possible because if that is not the case then clearly
their rights in too many cases will be denied and remedy, if that
is what they seek or need, could also be denied. Can you just
say a few words on the resources that the Commissioner will have
at his or her disposal? We are very well aware on this Committee
of the problems that the Ombudsman faces in dealing with the volume
of representations that are made to the Ombudsman's office and
the incredible length of time it takes to pursue investigations
which is, frankly, entirely unacceptable. Will the Commissioner
have alongside real powers real resources to act quickly and provide
results within the minimum period of time?
(Dr Clark) As regards the time limit, it is important
that certain time is laid down within which the department must
reply. In the annex we have suggested that most countries look
at it between 20 or 30 days and there is a list there and that
is a matter for consultation. It is important that people get
the information as quickly as possible and we have that in mind
and, indeed, we actually make some reference to it in the White
Paper. If the Information Commissioner feels that a department
is dragging its feet as regards an internal appeal, he can take
it over and move very quickly in that respect. Perhaps I could
explain how I see the role of the Information Commissioner because
I think it is absolutely critical to the working of the Act. One
has got to go back to the very purpose of the Act and the purpose
of the Act is to encourage more open and accountable government
by establishing a statutory right of access to official records
and information. The Information Commissioner is the main officer
of the Act working to that particular purpose. I see the Information
Commissioner as being on the side of the applicant and this fits
in with the whole philosophy of the Act, that information should
not be withheld unless it is going to cause substantial damage.
Therefore, I see the Information Commissioner with a small staff
of people. It is difficult to quantify because we do not know
what the demand is going to be, but he or she will be a facilitator
as to what should be released or not and at every stage I see
the Commissioner and his staff working with the people making
the appeals to try and see whether there are other ways of getting
information. I envisage the sorts of situations to be ones where
a person has put an appeal in when information has been refused
and the Information Commissioner may well come back and say, "Well,
look, I have examined this document and in my judgment the department
is right to withhold it, but what are you really after because
there may well be other ways of getting that information outside
that particular document? If you actually retable your application
or reschedule or reshape your application to ask for X, Y or Z
you will be able to get the information that you want." That
is how I see the Information Commissioner and his staff actually
operating. One reason why we felt it was right that we should
have a dedicated Information Commissioner as opposed to using
the Ombudsman was that we have got to make it quite specific and
also allow the system to move through speedily because we cannot
accept the delays which have occurred sometimes under the Ombudsman
in a general sense.
Melanie Johnson
123. A couple of separate points really. Mr Ramsden was
making some points about the percentage of information that related
to individual members of the public that was asked for. I thought
that those figures from a number of other countries actually included
access to individual personnel information which would not be
covered under the proposals in the White Paper. Is that correct?
We would expect to see a different balance is the quick point
that I want to make on that one.
(Mr Ramsden) In terms of the figures for overseas
countries, yes, they might include access to personnel records,
although the Australian experience that I was thinking of particularly
tends to be dominated by veterans' affairs and that side of the
government machinery. Obviously, the figures that I gave for the
code would not include access to personnel records.
124. But I thought in some of the countries it was 30
or 40 per cent related to individual access to personnel-type
records. I am just making the point that we might see a slightly
different balance on that.
(Dr Clark) I think it is a fair point and it goes
back to the Data Protection Act. We will find a situation where
people can apply for certain types of information through the
Data Protection Act or the Freedom of Information Act. Quite frankly,
I think there may be one or two countries where Privacy and Freedom
of Information are dealt with in the same legislation. It varies.
We decided it should be separate, but the two have got to work
together.
125. Just going back to your point about the index of
information, I think that is a very interesting idea. I think
you can have too much of a good thing. Perhaps you can have too
much information as well. I wonder whether you think there will
ever be scope for departments to review the information which
they are collecting and holding and whether it is in some cases
of little use or interest to anybody and whether we could not
review that because I know people are always demanding more information
in certain areas, but it will may well a lot of information is
collected historically which really has very little relevance?
(Dr Clark) One of the things that surprised me
as I was working through the White Paper and looking at public
records, etcetera is that when the information is passed over
from the department to the Public Record Office after the period
of 30 years 95 per cent of documents are actually destroyed by
professional archivists. So we only keep a very small percentage.
That rather surprised me.
Mr Shepherd
126. A White Paper with green edges, as I understand
it, is almost near to a piece of legislation. I want to look at
the green edges and I am not entirely clear in my mind what the
unresolved issues are. You have indicated that the Official Secrets
Act may well be one of these unresolved areas. We have talked
about information given in confidence by a foreign government.
That you do not have the answer to so I take it it is currently
under discussion. I noticed that you exclude the security service
with a blanket exclusion. It is absolutely clear in the mind of
government that this will not be covered and yet the security
service's remit has been so widely extended in recent years that
it now covers very domestic matters that have nothing to do with
national security at all. Do I take it, therefore, although it
is a blanket embargo in the White Paper, that in point of fact
it is an unresolved issue, an issue under discussion as to whether
there is, for instance, benefit fraud, organised crime, the way
in which they go around their tasks in doing that which is outside
national security issues? Is that an unresolved issue? Deaths
in police custody, the question I asked before and the use of
CS gas, using just two instances, are these resolved matters,
i.e. the Government has made up its mind, it has been determined
interdepartmentally or are they unresolved matters and therefore
open to this discussion and to affecting and influencing the way
in which the Bill is drafted?
(Dr Clark) There are certain key things which
we highlight in the document where we specifically ask for opinions
and there are other things which we cannot resolve because they
have not been through Parliament, for example the new Data Protection
Act. It is pretty difficult to make any firm recommendations on
the interface between the Freedom of Information Act and data
protection when we have not seen the Act yet. That is something
which will evolve with time, but clearly the two must interface
and work hand in hand. Again, we need to clarify the harm test
in the Official Secrets Act with the Freedom of Information Act
bearing in mind we have said that we do not see the FOI really
as something primarily involved with disclosing state secrets.
Then we ask a number of other questions about timing, etcetera,
etcetera. On the other side, what is the Government's position?
I think that the Government is pretty determined and certainly
the view of the Committee was solid that in fact the intelligence
services should be excluded from the Act. I think we also felt
very strongly, given the feelings of our constituents and the
feelings of our citizens, that organised crime, that the police
prosecution of crime, that benefit fraud and that police operations
should be excluded. Both of those were very strongly held views
within the Committee. Clearly, these matters will be in the Bill
which is brought before the House and at the end of the day the
House will make its decision on them. The Government will have
fairly firm proposals on those issues. I think it would be wrong
to give you an impression otherwise.
127. I was just trying to ascertain the issues where
the Government has firmly made up its mind. It has looked at overseas
experience for the security services for instance and it still
feels that an exemption, so blanket that it covers all the functions
-
(Dr Clark) Exclusion.
128. Do the police feel so strongly that matters such
as deaths in custody and CS gas should be excluded?
(Dr Clark) Yes. Deaths in custody and the Police
Complaints Authority - we have had a little debate about this
because the Police Complaints Authority is a quango and the quango
is subject to this Act. Those are the sorts of issues that we
are debating. The overall point about operation of the police
I would have thought is pretty high in the Government's intention.
There are grey areas as you get towards this and it is the grey
areas that we have got to explore in the period of consultation.
Chairman
129. I have got two further questions before we finish
relating to the Cabinet itself. We have already discussed what
the impact of freedom of information will be on civil servants'
behaviour in giving policy advice to Ministers, but we have not
yet considered what impact it might have on the relationship between
you and your Cabinet colleagues and other Ministerial colleagues
and their relationship with the press, in particular perhaps the
Parliamentary lobbying press in that you mentioned earlier that
information is power, but information is only power if you have
a monopoly and you can choose whether to impart it or not. You
will probably be aware of the verb to leak, "I brief, you
leak, he/she or it imperils national security". Do you think
it is going to change the nature of the political process and
the way politicians - Ministers in particular - have lunches with
journalists in order to impart, by way of doing a bit of spinning,
government policy if journalists can get that information another
way?
(Dr Clark) I think that is one of the difficulties
of human relations and no matter how you legislate I do not think
you can obviate that. Clearly, I think all we can do is actually
deal with the official machine and how the official machine operates.
It is my judgment that this Act and the changing of the political
culture and the demands of our citizens will actually make us
much much more open even at the Cabinet level in 30 years time
than perhaps we could ever imagine. I think this will be a cultural
change. As to Ministers having lunches with journalists, that
is a human interaction and I would hesitate to make any comment
about that.
130. My last question relates to this issue of should
we have to wait 30 years to find out in that, rather to my surprise,
we were told that the Irish freedom of information legislation
which will be implemented from 1 April next year will indicate
that Cabinet papers become released into the public domain after
only five years and not 30 years. That is our understanding. I
know the Irish have an engaging habit of invariably throwing out
the government at each general election. I do not know if that
has got something to do with this. If the Irish can do it is there
any reason why we should want a period six times longer than the
Irish before Cabinet information is released into the public domain?
(Dr Clark) We had a long debate on this and we
looked at it and looked at the prospect of reducing the 30-year
rule for a number of reasons. We also looked at what other countries
did and the average is between about 25/30 years and we thought
it was right that we should remain in the centre of the pack.
131. That is very British!
(Dr Clark) Yes, but I do make the point that
the difference is that the issue will not be quite as critical
because much much more information will be released within the
30-year period because you will be able to ask for that information
in the 30-year period. The material held for the 30 years by the
department actually includes almost every document. So there will
be a great deal of that information which will be released in
any case under this Act in the 30-year period in which it is held
by the department. Therefore, we felt that because this was going
to be the case it was wrong to recommend we should reduce the
30-year rule.
(Mr Ramsden) The briefing that I am reading from
states that in as far as we are aware of the Irish legislation
Cabinet records are protected under a mandatory exemption for
up to five years which means there would be no question of their
disclosure and are then after five years released into the system
of the Act as with other papers.
132. So you are saying we might finish up better off
than the Irish seeker after information about the Irish Cabinet?
(Mr Ramsden) As I understand it the Irish system
in terms of automatic disclosure of such records is on a 30-year
basis, but this could be something that we could send the Committee
a note upon perhaps.
(Dr Clark) I would be very happy to do that. I
hope to publish, probably early in the New Year, background papers
to the preparation of this White Paper which again will be another
first. I promised to do it and I intend to do it. I want to show
you that we are going to be more open.
Chairman: I think that is very much in the spirit of
the White Paper and I hope that spirit follows through from the
Act as well. Can I apologise once again for the warmth of this
room. Thank you very much and thank you to your colleague Mr Ramsden
as well for assisting you this morning.
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