Examination of witness (Questions 150 - 169)
TUESDAY 20 JANUARY 1998
MR MAURICE
FRANKEL
150. Would you expect the classification system to come
back into Whitehall where the documents are in fact as they process
their way through the system classified "substantial harm"
or "harm"?
(Mr Frankel) I am not sure to what extent such
a classification system does not already exist. I think it is
probably pretty widely adopted at the moment. It may well be adapted
to take account of the presumption of openness and to try and
indicate what government believes should not be subject to that
presumption of openness which they do not quite have to deal with
at the moment.
Mr Tyrie
151. Do you think that there is any way reasonably this
legislation could be drafted and would have any chance of success
if it did enable Council of Minister discussions to be opened
up retrospectively to public examination? In other words, if the
right to know included the right to obtain minutes of Council
of Minister discussions? Do you think we are really pushing at
something which is too difficult to achieve?
(Mr Frankel) I am not sure to what extent that
could be done unilaterally by one country.
152. Your earlier view was Sweden has already kicked
the door ajar and maybe if a large country puts minutes in a language
that most people can understand and kicked the door wide open
this would have a dramatic effect.
(Mr Frankel) I think first of all one can look
at what the Governments, who are inclined to be more open within
Europe, can do collectively on this type of issue. The British
Government's more open approach in line with some of these other
governments may be able to bring it about. It is really a matter
of what sanctions other Member States would attempt to impose
on Britain were we to go down a line which they regarded as completely
unacceptable. I think it is well worth testing these types of
issues and they are to an extent being tested in some of the cases
that are being brought in Europe under the European Code of Practice
and Council provisions where different governments are lining
up the different ways for and against disclosure of these types
of material.
Dr Clark
153. Can I ask firstly just a bit about your own organisation.
It appears there is a Council for Freedom of Information and there
are also various co-chairmen of the campaign. Can you tell us
about your organisation and how it is funded?
(Mr Frankel) Yes. The Campaign has been going
since 1984. It is funded primarily by a grant from the Joseph
Rowntree Charitable Trust, by funds from the Consumers' Association,
by funds from its supporting organisations at the moment particularly
including UNISON, the union, and by individual donations from
individual supporters. Supporting organisations have a member
on our advisory council and there are 80 national organisations
represented in that way so they play a part in our internal discussions.
154. What is the difference between the Council and the
Chairmen? Is there some structural difference?
(Mr Frankel) It is not very formal. I am just
trying to see what you are referring to on the letter head. The
co-Chairmen are effectively an all party panel of Members of Parliament.
I ought to say our letter head reprinting is slightly out of date
and Chris Smith took some time to respond to our request to inform
us whether he is allowed to stay in place. That has only just
come through. We will have to deal with that. We are not an organisation
that can afford to reprint our letter head more often than we
strictly have to.
155. That brings me to my next point then, in relation
to third party rights and obviously individuals or companies or
organisations wishing to have information which they think may
be relevant to themselves but when it does infringe, as it might
often do, on third party rights, how is this to be reconciled
with rights to privacy which we are keen on as well?
(Mr Frankel) I think most Freedom of Information
Acts now have some requirement to consult with a third party when
there is any prospect of disclosing information relating to them.
I think one can discuss how absolute that requirement may need
to be because there may be times when a disclosure is essentially
identical to a disclosure which has already gone through the appeal
process and been accepted as not breaching a requirement and you
would not necessarily want to add unnecessary delay by being too
dedicated to going through the procedure every time. In general
you would want to give a third party the opportunity to argue
the case that their privacy or their commercial secrets were at
risk of being disclosed and you would not necessarily want to
trust a public authority to make that decision on behalf of a
third party without understanding what the significance of the
information was to that other body or individual.
156. What happens if the third party cannot be traced
as may often be the case, moved house, moved address?
(Mr Frankel) Again, in those cases, one option
may be to require a consultation with the Commissioner, particularly
if we are talking here about individuals, to require consultation
with the Commissioner before an authority decides to make a disclosure
in those circumstances. This has been raised in relation to access
to social work records in the European Court of Human Rights case
of Graham Gaskin. The practice until a few years ago in even those
local authorities who are keen to allow social work clients and
children who are brought up in care to see their records was to
protect the identities of individuals of this kind and if they
could not be traced to obtain their consent to deny access. This
went all the way through the House of Lords and then to the European
Court which held that the absolute refusal to disclose where third
parties could not be traced did not adequately balance the rights
of the applicant with the rights of the third party. So you need
some independent process to balance these two competing interests.
157. What about the White Paper, what is your understanding
of the solution that is proposed in the White Paper?
(Mr Frankel) I anticipate that there will normally
be an expectation that third parties will be consulted before
their information is disclosed unless it is absolutely clear that
the information does not raise an issue of exemption.
158. In relation to the model that the White paper has
adopted, do you have any views as to whether this is the best
model that could be adopted or otherwise, bearing in mind the
various models that you have seen in other countries?
(Mr Frankel) Across the board, generally?
159. Yes.
(Mr Frankel) I think this scores very highly in
comparison with international practice. In the period running
up to the White Paper I have mentally gone through the kinds of
different Freedom of Information Acts we might get and I have
been well aware that you could put together a set of proposals
taking the mediocre bits from the mediocre acts overseas and produce
something very mediocre here. I think that in many aspects the
Government has gone for the highest standards from overseas, particularly
in relation to the Commissioner rather than the courts as the
first enforcement body and in the fact there is no Ministerial
veto, a temptation which a number of other countries have not
been able to resist.
Chairman
160. Could you say that again, I am sorry I missed that.
(Mr Frankel) There is no Ministerial veto over
decisions of the Commissioner and that is an approach which some
other countries have not been able to resist. Also, in going for
substantial harm as the basis for many exemptions, they have aimed
high. In the range of bodies that they are proposing to bring
under the Act and the scope of the information that they are proposing
to bring into the Act they are also aiming high. I have been in
touch with a number of the Information Commissioners and Ombudsmen
overseas in relation to this and their response has also been
very positive. One does not know how much the final legislation
will reflect these, but if it does I think it will be a very good
piece of legislation.
161. We have been warned on precisely that point by Judge
Kirby from Australia very recently saying that sometimes you can
get a good White Paper and a lousy Act because it gets watered
down following further consideration within departments and so
on.
(Mr Frankel) This has gone through a process of
consideration by departments and it has also gone through a process
of consultation at the highest levels in government and through
the Ministerial committee. It is published with the Prime Minister's
photograph and approval on the front.
Mr Bradley: He is on the back.
Mr Tyrie
162. He is on the front here.
(Mr Frankel) It has the substantial support of
the Lord Chancellor who is a key figure in all this as well as
the Minister responsible. I think there must be a degree of political
impetus behind it but I do not under-estimate for one moment the
kinds of pressures that will be imposed as departments begin to
appreciate what this will mean for them and indeed as business
and industry begins to appreciate and the need to do everything
possible to try and ensure this is not substantially weakened.
I think there will be very substantial scope for that happening.
Dr Clark
163. In relation to the exemption that is proposed for
law enforcement, do you have anything to say about that?
(Mr Frankel) Yes. I am unhappy about most of the
exclusions in the White Paper. On the whole the principle of Freedom
of Information is that you do not withhold information because
it relates to a particular subject you withhold it because its
disclosure would harm a specified interest.
Chairman
164. On a case by case basis?
(Mr Frankel) On a case-by-case basis. The case
for excluding the law enforcement functions of the police and
other bodies has not been made out at all. I am aware of the kinds
of arguments that have been raised overseas. The Americans, for
example, are very concerned that they get large volumes of requests
from convicted prisoners who are trying to see if they have got
any grounds for appeal, are perhaps interested in reprisals against
informants, whatever. I do not think our record on miscarriages
of justice is good enough for us to use that as an argument for
denying access even to prisoners necessarily, let alone to the
greater population. Even if the prisoner thing is regarded as
a problem it is certainly not grounds for denying all access to
information about law enforcement functions. I think what that
will mean is that regardless of how serious a failure there is
by the law enforcement body concerned we will never have any opportunity
under Freedom of Information to learn about it. That strikes me
as wrong in principle. I take the same view about some of the
other exclusions and, indeed, about the exclusion of personal
employment records. These have been excluded under the Code of
Practice so far but I am not aware of them being excluded under
any overseas Freedom of Information Act. I think such access is
an important safeguard for civil servants and public employees,
for example if they are revealing serious malpractice, that they
are able to see that reprisals are not secretly being taken against
them in the form of adverse, untrue comments on their files. Secondly,
if you want to change the culture and what you are saying to civil
servants and public officials is "you have got to administer
this, you have got to do the work, you have got to face the possible
criticism that comes from exposing it all to the public and you
are not entitled to benefit from it directly", that does
not seem to me to be the best way of changing the culture. It
would be helpful to let the officials know that they have direct
benefits as well. The final thing to say is if the implication
of excluding personnel records is that military personnel who
are the victims of Gulf War Syndrome will not be entitled to see
their Army records and those records are not going to be disclosed
to third parties because it would invade their privacy, then we
have an obstacle to access which I think is totally at odds with
the purpose of the legislation.
Mr Tyrie
165. What is the relationship on that issue between this
Bill and the Data Protection Bill?
(Mr Frankel) On employment, on personnel records,
there is already a right of access to computerised records and
it will be extended to a degree to manual records under the Data
Protection provisions but the provisions are limited and it will
not be a general right of access to manual records. The original
intention seems to be restricted to records which are filed in
a consecutive series by reference to a name or a code number or
an individual and where you can find the particular class of information
in an identifiable place on the record or document.
166. So if one was tempted to open this up one would
want to rely on the right to know legislation rather than data
protection?
(Mr Frankel) Yes. So far the Data Protection Act
does not promise to open this information up.
167. Can I ask one specific question in that area which
is health records, whether patients may as a consequence of right
to know legislation in some cases or in all cases be able to get
hold of their records?
(Mr Frankel) Patients already have access to medical
records recorded after November 1991 under the Access to Health
Records Act 1990 and to computerised information, regardless of
when it was recorded, under the Data Protection Act. The gap in
relation to medical records is to the pre-November 1991 material,
some of which is already accessible, although nobody knows about
this, under the Code of Practice on Openness in the NHS. The Health
Service Ombudsman has made clear that he accepts that requests
for information from pre-1991 health records can be dealt with
under the Code of Practice. I would hope to see the limit on retrospective
access lifted particularly where those records are still in play,
they are still being consulted by health professionals in relation
to a patient who has been transferred to a new practice or who
is still undergoing treatment.
Mr Bradley
168. I am interested in what the consequences of the
Act would be not just for the man or woman in the street but also
on a slightly grander scale. You must have in your own mind a
list of events, failures, successes, that may not have occurred,
had we had this legislation in place ten or 15 years ago. It might
be helpful if you could let us know what order of issues they
are.
(Mr Frankel) I always hesitate before saying a
Freedom of Information Act would have stopped this. I do not know
if it would have stopped the BSE crisis or the Arms to Iraq affair
or any of those major things. I think it may have contributed
to exposing those matters to greater scrutiny and that would have
fed into a process which may have helped things turn out in a
different way. I think it is difficult. I think it is unwise to
say that it would stop such and such from occurring. I think it
will strengthen Parliament. It is significant that even the Code
of Practice has given Members of Parliament when they have used
it the opportunity to challenge refusals in a way which cannot
normally be done in relation to written or oral questions. It
is easier to do in a Select Committee but in other fora it has
strengthened Members of Parliament. It will strengthen all kinds
of individuals who are potentially at risk from these matters
or who are studying or monitoring these activities. It will strengthen
the press should they be persuaded that it is worth their while
using this and waiting for the results instead of expecting stuff
in time for a four o'clock deadline the same day. I think in all
those ways it will enhance the existing process of scrutiny and
accountability and will make it more difficult to get away with
it.
169. It is certainly encouraging that the press may be
persuaded not to make quite so much up but to wait for the truth.
I note your caution about BSE and Arms to Iraq and so on, but
are you suggesting that those issues may not have arisen, events
may not have taken place, because government would not have been
in a position to conceal information? Or is it simply that those
that might have checked these developments did not know what they
were looking for and did not know what was available? To what
extent are we talking about concealment?
(Mr Frankel) I think what the Scott Report suggested
was that the Government's argument for not disclosing the change
in the evenhanded policy in relation to Iraq and Iran was motivated
by a desire to avoid embarrassing criticism and not on substantial
international relations or defence grounds. If that is the justification
then that change of policy, one assumes, would have been disclosable
under the Freedom of Information Act. I think one can speculate
on what difference that would have made. It probably would not
have stopped the prosecution of these characters but it would
certainly have dealt with the Members of Parliament who were misled
over a period of time about what the policy actually was.
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