8. THE INFORMATION
COMMISSIONER
Some countries' FOI laws allow Ministers to overrule the
appeals body in certain areas. We are pleased that no such Ministerial
veto has been proposed here, and welcome the proposed enforcement
mechanisms based on an Information Commissioner with the powers
to order disclosure.
Appointment
The method of appointing the Commissioner will be important.
Given his or her central role under the Act it would be undesirable
for this to be purely government appointment. Any suspicion that
the individual concerned had been chosen on the basis of a perceived
readiness to defer to the Government when potentially sensitive
information was involved would undermine public confidence in
the office. We suggest the appointment should be based on joint
agreement between the Prime Minister, the Leader of the Opposition
and the Chair of the appropriate select committee.
Powers
The Commissioner's proposed powers appear appropriate. However,
we note that he or she will only be entitled to inspect records
that are relevant to an investigation and "within the scope
of the Act".[99]
We think it will be necessary for the Commissioner to have power
to see records that are outside the scope of the Act:
- The Commissioner may be unable to investigate many
complaints if he or she is denied access to an authority's legal
advice, even though such advice may not itself be accessible under
the Act. The Parliamentary Ombudsman is entitled to see material
which is subject to legal professional privilege and a number
of his recent investigations, both under the Code of Practice,
and in relation to maladministration, have highlighted problems
partly attributable to the advice of departmental lawyers.
- It may not be possible to investigate complaints
about the police's administrative functions if the Commissioner
is unable to see records relating to their law enforcement functions.
Problems will also arise if the Commissioner could not see material
held by an authority relating to civil proceedings.
- Although the security and intelligence services
are to fall outside the Act, the Commissioner may play a role
in dealing with complaints about the failure to release historical
material relating to these services under the Public Records Acts[100]
and must be able to see such records, even if they are not subject
to the legislation's FOI provisions.
We welcome the proposal that the Commissioner be able to
resolve disputes by mediation.[101]
The detailed case notes published by the Parliamentary Ombudsman
under the Code have been extremely valuable; and we are pleased
that the Commissioner will be expected to continue this practice.[102]
We hope it will extend to describing the outcome of complaints
resolved through mediation, as this route is likely to be particularly
important under FOI.
Sanctions
The Commissioner will be able to order the disclosure of
records, and refer any failure to comply or obstruction of an
investigation to the court of punishment as if it were contempt
of court.[103] The
deliberate destruction of records required for an investigation
by the Commissioner is to be made an offence.[104]
In addition to these important sanctions we think it should
be an offence destroy or alter any record which has been requested
by an applicant.
Examples of the need for such a sanction have been cited
by Canada's Information Commissioner. Having initially declared
his confidence that administrators would never deliberately attempt
to undermine the legislation, he subsequently confessed to having
been "naive", noting that:
- A senior manager in Canada's Transport department
ordered officials to destroy an audit report critical of senior
managers "in circumstances indicating that the senior
manager knew an access to information request had been made or
was imminent. "[105]
- The National Defence department altered documents
before disclosing them to a journalist and "orders were
subsequently given to destroy the originals."[106]
- The Canadian Blood Committee, a government body,
ordered the destruction of tapes and transcripts of its proceedings
"so that the records could not become subject to the right
of access ". The decision "was motivated by concern
about potential litigation and liability issues associated with
tainted blood products ".[107]
The Commissioner has described the Canadian legislation "toothless"
in this respect, and called for penalties to be provided for those
who deliberately shred records in order to frustrate applications.
Delays
We welcome the suggestion that the Commissioner will resolve
complaints "in weeks not months".[108]
However, we note that the Parliamentary Ombudsman originally intended
to complete open government investigations within 13 weeks on
average, but within two years of the Code's introduction was taking
an average of nearly a year, despite having a relatively small
number of cases (140 in total since the Code's introduction).
Some complaints have taken two years or more. Substantial delays
in the appeals process may undermine public confidence in the
legislation, particularly if delays by authorities themselves
are also occurring.
UK experience may be contrasted with that of Canada's Information
Commissioner who in 1995-96 dealt with over 1,500 cases in an
average turn around time of less than four months.[109]
It may be helpful to seek to understand:
(a) precisely why such delays under the code occurred,
and consider what can be done to prevent similar problems under
the Act;
(b) what can be learnt from the Canadian Commissioner's
experience in achieving much more rapid resolution of complaints.
If obstruction by departments has been a significant element
(and Sir William Reid, in the comment quoted earlier suggested
that it had been), there may be a case for additional sanctions.
The proposal that the Commissioner be able to mediate may permit
speedier resolution of many complaints, but we would not assume
that this would automatically deal with all problems.
January 1998
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