Examination of witness (Questions 170 - 190)
TUESDAY 20 JANUARY 1998
MR MAURICE
FRANKEL
170. We had some debate here recently about the use of
yellow sticky papers. Do you not think what will happen is that
just as the flow of information becomes more sophisticated and
available so the means of circumvention, obfuscation and denial
will be that much more sophisticated?
(Mr Frankel) The public is always trying to catch
up with more sophisticated ways of withholding information. We
are always behind. This will allow us to take a few large strides
but it will not allow us to overtake.
Chairman
171. That idea of overtaking is very interesting. In
other words, we would know what was in the Minister's mind even
before he did!
(Mr Frankel) It will not allow us to overtake.
172. What a shame!
(Mr Frankel) Yes. I recite in this paper some
examples from the Canadian Information Commissioner about the
shredding of records which have been requested. The Government
is proposing there should be an offence of destroying documents
during an inquiry by the Commissioner. Our view is that it should
be an offence to destroy a document after it has been requested
by an applicant or in order to avoid a request. The Canadian Information
Commissioner has highlighted a number of cases where that has
happened despite his original belief that it would not. He now
reproaches himself for having been naive. He now describes his
own legislation as toothless in this respect because it does not
contain sanctions for those who deliberately destroy records in
order to thwart a request. Such a sanction is not in the proposals
at the moment. They were in the leaked version of the proposals
that appeared in the BBC, though that may have been the journalist's
misunderstanding of what was being proposed. One of the interesting
things about the examples the Canadian Commissioner reveals is
that he discovered the orders to destroy and the fact that they
had not been thoroughly carried out because individual whistle-blowers
in the departments concerned had decided not to follow the instructions,
they decided to keep a copy on file because they did not agree
with the order. That is one reason why I think there is a separate
measure in Richard Shepherd's Public Interest Disclosure Bill
which will protect whistle-blowers who reveal deliberate attempts
to conceal evidence of malpractice. I hope so. I think the two
measures will reinforce each other. I think the yellow sticker
phenomenon may not be capable of thwarting the conscientious civil
servant who sees that this is being done to conceal some substantial
failure for reasons of self-interest. Although it is always possible
to withhold information from people who do not know what is there,
there are always factors which may make it difficult for officials
to assume they can get away with it.
173. Could you envisage on a particular issue a tacit
understanding between Ministers and their civil servants that
because a course of action on which they were set would be controversial
or potentially damaging that there should be no record of discussions,
no notes of issues considered and decisions taken? Could you envisage
the Government could function in that way? Is it necessary by
convention that there should be a record of policy development?
(Mr Frankel) I can envisage that the actual reason
for a decision may not be recorded and that more presentable reasons
be recorded. It would be more difficult to get away with that
where the purpose is to conceal some serious mistake or misconduct.
I do not think Ministers, were they inclined to do so, would be
on very sound ground necessarily in believing that the officials
would comply with a request of that kind.
174. Can I just move on to the citizen's right so to
speak. One of the problems with access to information is not knowing
that it exists or where it can be found and in what form and how
to access it. If government and other public bodies, and indeed
some of the private bodies that are covered by the Bill, are really
going to fulfil the function of the Bill in total it is going
to cost them an awful lot of money, is it not, and create quite
an industry and quite an infrastructure almost in marketing information?
Do you think there is much enthusiasm for that? Do you think that
in its absence much of the Act is unworkable?
(Mr Frankel) We have always refrained from saying
that government ought to index every piece of information it creates
so that we can find out what exists because I think that would
create substantial resistance to the whole idea within government.
What we have suggested is that they ought to provide a guide to
the types of records that they hold and the subjects and indicate
to what extent they are likely to be exempt or not. They ought
to allow the public access to existing indexes which they use
for their own purposes where that can be done without releasing
the exempt information. Particularly with the computerisation
of data it is increasingly easy to conceal the fields in a computerised
index which describe in detail the substance of the record, where
that description gives away classified information or commercially
confidential information, and allow somebody to come in and browse
through the remaining fields on the database so that you can find
out what is going on. If you do not do that what will happen will
be we will advise people, if they do not think of it themselves,
that their first request should be to say "please identify
the titles of all records you hold with brief descriptions on
the following subject". That is your first request, to produce
an index. The second request is to choose the documents from the
index that you want.
175. That presupposes that the individual is interested
in a department or an institution and the information which it
holds. What if the individual had a specific interest but did
not know which bodies would have all or part of the information
he or she was seeking? Do you think that it might be the role
of the Commissioner in part to provide a service to the individual
to guide him or her towards the information that they seek or
is that a responsibility that ought to be more locally based?
In other words, how best could that be managed? How best could
this flow of information be facilitated?
(Mr Frankel) I think it is difficult for the Commissioner
to do that. The Commissioner will not know where within government
particular functions are dealt with and which particular department
has a side interest in an issue which is not obvious. The primary
duty will be on the departments themselves to provide accounts
of what it is they are dealing with. They also ought to be under
a statutory duty to assist applicants in those circumstances to
track down the information.
176. Who would guide people through that? I made this
comment before the Select Committee, that this will be extremely
popular amongst the chattering classes I am sure but those are
people who are articulate and able and knowledgeable. What I am
particularly concerned about are the ordinary men and women who
do not chatter a great deal but nevertheless at some stage may
have a need or a desire to find out the truth or basically some
information but have absolutely no idea where they start. I can
envisage an industry, a brokerage industry, developing which may
well have a role to play in the private sector when commercial
interests are seeking information for their own advantage. I am
a bit concerned about the individual citizen trying to fulfil
his or her rights, trying to find out information, without incurring
prohibitive costs.
(Mr Frankel) I will answer that in several different
ways. You are quite right to highlight the issue of costs. This
partly underlines our concern about the £10 application fee.
If you do not know exactly where the information lies and you
are required to send out a batch of different letters at £10
a shot to different bodies which may have an interest, in fact
they may all have an interest, you are deterring the individual
simply on the grounds of cost from pursuing that inquiry. Secondly,
as far as brokerage goes, there are well-known brokers in the
United States who act for commercial concerns, sometimes for commercial
concerns who do not want to be identified as the source of a request.
The request is made by Freedom of Information Services Inc., which
is the name of one of the actual brokerage companies, and nobody
knows who the real customer is. Equally there will be brokerage
organisations who act for the voluntary sector. The Citizens Advice
Bureaux will begin to learn how to use this and then there will
be more specialised organisations to whom the Citizen Advice Bureaux
will go for help where they have questions of that kind. That
will partly adapt to it. That does not deal with what should be
the obligation on departments to produce a good deal of signposting
as to what it is they hold so people can find out where that information
lies without having to make a large number of trial and error
and expensive requests.
177. A final question: what would you think the ideal
job description and candidate for the Commissioner would be?
(Mr Frankel) I think I rather agree with what
David Clark said here in December, that the main requirement is
that it is somebody who is on the side of the applicant, on the
side of the purpose of the Act in promoting accountability. What
that individual's background actually is is probably not in itself
a very good guide to the qualities of the actual individual concerned.
I do think it ought to be somebody whose only job is the Freedom
of Information Act and that it is not combined with some other
role, that would be a problem. I do think it is the individual
qualities of the person chosen rather than their background which
is going to be the crucial thing here.
Mr Shepherd
178. We are dealing here with a White Paper and not the
detailed legislation in front of us which makes it very difficult.
Continuing from the point about what sort of Commissioner it should
be, in the early stages of this, for instance the distinction
between the harm test, substantial harm, this has to be specified
presumably in law. Are you not really looking for someone who
certainly has the qualifications that David Clark identified but
also someone who is legally trained, almost judicial in the judgments
that come forth, because he is setting the precedents that presumably
will be followed by his successors?
(Mr Frankel) I agree with that. I hesitate before
saying that it therefore needs to be a lawyer or a judge. I think
we could deal with that by having your Deputy Commissioner being
the legal expert. You would have the legal expertise within the
body.
179. What is the experience elsewhere, for instance the
equivalent in Canada, in New Zealand or Australia? Are they from
a variety of backgrounds or are they lawyers?
(Mr Frankel) Some of them are lawyers and some
of them are former journalists in fact. One of them is an academic.
We do not yet know where the legal problems will be. I suspect
that the substantial harm will not be a legal question at the
end of the day, substantial harm will be a matter of judgment
where there will not be a great deal to learn by examining the
case law or precedents under legislation. There will be a lot
of other areas where it will be absolutely a legal question. One
can see wonderful judges who could do this job who would probably
not even make the shortlist and some of those judges who might
make the shortlist may not be the kinds of people one would want
to act on behalf of applicants.
180. So when we are looking at the legislation or the
Bill that comes before the House we will run through the usual
things: its exemption provisions that one is very attentive to
and how they are framed such as the investigation and prosecution
of crime; policy advice in Cabinet papers which is clearly a critical
area and one wants to see how that is defined. Personal information
and data protection is a Home Office function at the moment. I
am slightly confused about the Whitehall set up in respect of
this. Would a central ministry be more appropriate? What I am
saying is the Home Office has a well-known penchant to be more
tightfisted than other departments because obviously it is dealing
with very sensitive matters. Should this not be, in fact, an issue
of data protection and privacy that in your view might not well
command Dr Clark's departmental responsibilities and give a coherence
to it?
(Mr Frankel) Should data protection, you mean,
not come under Dr Clark's responsibilities?
181. Yes.
(Mr Frankel) I certainly think that is preferable
than it going the other way round and moving freedom of information
to the Home Office if that were the option.
182. We moved Freedom of Information from the Home Office,
so to speak.
(Mr Frankel) I am not sure how far I want to go
in suggesting data protection moves out of the Home Office into
Dr Clark's responsibility. I would be worried about some of the
provisions in the new Data Protection Bill. There is a provision
there for the Secretary of State by order to exclude from access
altogether information relating to law enforcement and taxation.
That seems to be capable of withdrawing existing data protection
rights. It would neatly bring the new Data Protection Act into
line with what is proposed for freedom of information. This is
an area where I would not want to see consistency of that kind
achieved. To that extent data protection might well benefit from
a little boost on the side of greater openness.
183. You can see the presumption of I think almost everyone
who has asked questions of you is very much in favour of the generalities
expressed in the White Paper. I was just trying to go through
our key points for weighing up that intent, and it is clearly
Dr Clark's intent too, to change the culture. I have not missed
out anything. Signposting I thought was very interesting as an
introduction, the nature of the Information Commissioner and the
need for sanctions which was not in the White Paper but was an
item that you raised. Have I missed out anything? The presumption
behind this is such that people like me have always argued that
if a civil servant knows that someone can look over their shoulder
at their work it is likely to improve the quality of the work
rather than undermine the quality of the work. Is that a fair
presumption?
(Mr Frankel) I think it is a fair presumption.
I think it is also fair to say that lots of civil servants do
not take the stereotypical view that this is bad for them and
bad for their work, they are actually proud of what they do, they
regard themselves as very professional and that their work product
would stand up well in the light of scrutiny were they not prevented
from doing so by other reasons. I do not think they would object.
There is a lot of scope for improvement through the prospect of
scrutiny. One thing I would add to your list of things is some
years ago I visited the United States and went round some of the
agencies to look at what they released and the FBI, the State
Department, the Environmental Protection Agency, all had reading
rooms where you could look at records which had been disclosed
in the past to previous requesters. This was a terrific guide
to what you could do with a Freedom of Information Act because
you could see what was available and this would help you understand
how you might use this to further the inquiries that you have.
I think something along those lines, also including the internet
as an electronic reading room, is appropriate.
184. I have a fear just by the by in relation to the
cost implications. In the past when everyone has mentioned freedom
of information it was almost the obligatory role of the then Minister
to come forward and say "there are 38 miles" or whatever
it was "of records in Whitehall and this will cost billions".
In point of fact, when one looks at the experience, and I think
we have got a detailed note on it, of Australia and Canada one
is struck by the fact that it is quite an expensive process. Our
Treasury in this country is always mindful of that. Do you have
any observations to make on that?
(Mr Frankel) I think we are starting from a different
point than Canada, Australia, New Zealand and many other countries
started from. We are starting from a Data Protection Act that
already provides access to the computer records. Rights of access
to some of the most popular personal files like medical and school
records already exist. The right to environmental information
already exists. Code of Practice rights already exist although
they are not used as widely as they may be. It is difficult to
extrapolate too directly from these countries. I think you can
see throughout the White Paper the measures to try and restrict
heavily demanding requests in the form of the gateway restrictions
in the suggestion that there be an application fee for more requests
and so on. That has obviously been the Government's strategy rather
than saying "this is going to involve 38 miles of files,
we cannot afford to do it". They are trying to reassure the
departments by these restrictions and charges. My hope is that
will not in fact be allowed to become a substantial obstacle to
the applicant. The Government has to be prepared to do this.
Chairman
185. Commercial confidentiality. We are used to commercial
confidentiality as a major controversial issue in respect of freedom
of information legislation when it comes to disclosure of product
information and so on, environmental consequences, but we now
have a new definition of it, it seems to me. Now we have a new
definition of the problem relating to commercial confidentiality,
namely where functions have been privatised, privatised railway
companies, privatised electricity companies, PFI contracts for
hospitals or Government buildings or whatever. Do you believe
that this is going to be a major obstacle in the sense that people
participating in PFI deals who are disgruntled - people who lost
out from the shortlist or they did not get on the shortlist of
PFI deals, railway commuter action groups complaining about Connex
South Central or whatever it might be - are going to find it difficult
to get the kind of information they want or do you believe that
the scope of the Act is going to cover all those areas in spite
of the commercial in confidence possible exemption?
(Mr Frankel) This is where the statutory factors
that are going to be listed are going to be important. The substantial
harm test is very much a positive feature. I think the first thing
to say is that the definition of commercial confidentiality should
be such as to make it clear that where there is a monopoly and
no competition, no real competition, it should be very difficult,
if not impossible, to argue that disclosure would harm the monopoly
supplier's commercial interests if there is no competitor actually
likely to use that information at its expense. I would have thought
in the railways and so on, the monopoly scenario ought to rule
out commercial confidentiality in many cases and where it does
not I think the public interest consideration and substantial
harm test ought to be made to rule them out. It also ought to
be recognised the Americans use an expression in some of their
judgments "openness is part of the cost of doing business
with government" and what happens is the standards of openness
and accountability we expect in the public sector are exported
into these commercial transactions rather than what we have had
in the past which is the commercial standards imported into the
public sector. I hope we would reverse that process.
186. As a general principle do you think it is possible
for this Committee and your particular campaigning body and others
to be able to persuade the Government where there are a number
of areas proposed in the White Paper for total exclusions to swap
the total exclusion route for an exemption where at least the
Freedom of Information Commissioner would have a chance to get
in there and read the documents and help to challenge the Minister,
which of course we understand he would not be able to do if it
was an excluded area as distinct from an exempted area?
(Mr Frankel) I very much hope so. I hope that
if this Committee decides that is one of the issues it wants to
pursue in particular that there will be scope for influencing
the Government on that. It would be difficult for the Government
to justify in terms that anybody can understand why these matters
are excluded rather than exempted and if they think they need
particular protection in terms of exemption why they do not provide
that particular protection rather than insist that the whole business
be taken outside the scope of the Act altogether.
187. Do you believe there are any areas where you can
justify a blanket exclusion or are we saying that in all those
proposed exclusions it would be much better to go for an exemption
or alternatively having three or four areas which are currently
proposed for blanket exclusion where we should put a particularly
high priority on trying to persuade the Government that they should
go for exemption and not exclusion?
(Mr Frankel) The exclusions I think least justified
are the functions of law enforcement bodies, the personnel files,
information subject to legal professional privilege, which I think
should be subject to a harm test, and information relating to
civil proceedings.
188. You do not include immigration in that area then,
do you?
(Mr Frankel) I am sorry, you are quite right.
I would certainly include immigration. I include all the government
departments whose law enforcement bodies it is proposed to exclude,
particularly as in some cases it would involve removing an existing
right under the government Code of Practice. We are going to have
rather more substantial problems with the security and intelligence
services. I am not sure that one would want to intrude into the
judicial functions of the courts as opposed to their administrative
functions. You may want to consider whether one wants to intrude
into Parliament. Certainly in the other matters the case for an
exemption is strong and in line with overseas practice.
189. My final question relates to the function, if there
is one, for a Committee such as this one having a formal Parliamentary
oversight or annual monitoring or review of the success or otherwise
of the Information Commissioner in getting information out of
governments. I think you would regard it as a fair point if I
was to put it to you that you are the leading advocate of keeping
Parliament's nose, or any Select Committee of Parliament's nose,
out of the issue of having some form of adjudication or monitoring
function in relation to Freedom of Information. That did not stop
us welcoming you here as the first witness this morning. On the
other hand, how do you see Parliament in the end having some role
or do you think basically because of the possibility of dirty
work by the Whips abusing their majority on most select committees
and so forth, this is something that one should regard as incompatible
with any healthy development of freedom of information, that it
should not be subject to parliamentary review or monitoring?
(Mr Frankel) I think you are overstating my criticism
of Parliament's role in this. What we were objecting to was a
select committee being made the final appeals body in relation
to individual cases, which was an idea floated a little while
ago. We objected to that first of all because select committees
could not oblige Government to disclose even if that was their
view, they would have to go to Parliament as a whole, where the
Government's majority would almost always prevail. Also because
where the issue was, as Richard Shepherd suggested, a matter of
legal interpretation of a provision the select committee would
not be the right body to go to for a final legal interpretation.
We do not have any objection, in fact just the contrary, to a
select committee having a monitoring oversight role. I think it
would be extremely valuable. If your Committee wanted to do that
we would be absolutely delighted, we think it would be a very
important function which would do a great deal to assist the legislation
meeting its objectives.
190. We are not particularly making a bid for it, it
is just this question of compatibility or incompatibility between
a kind of almost supra-parliamentary figure like the new Information
Commissioner who can go in and challenge Ministers and say "you
are wrong about that, that ought to be disclosed" and Parliament
itself. How can you have Parliamentary oversight of a supra-parliamentary
Commissioner?
(Mr Frankel) I think it could be done and I think
it would be very welcome both to have a Minister in from time
to time to ask "what are you doing about these problems",
having the departments in that have been causing problems asking
"why are you causing problems", and having the Commissioner
in asking "can you explain the context to this issue and
why it is happening in this way". I think the former Committee
on the Ombudsman performed that kind of role very valuably in
relation to the Code of Practice and this Committee or another
I am sure would make a similar contribution under the Freedom
of Information Act.
Chairman: Unless Lynda or Peter have got any other
questions that is a very happy note of agreement on which to end
this morning's proceedings. Thank you very much for coming. Thank
you very much for answering our questions.
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