Examination of witnesses (Questions 191 - 209)
TUESDAY 3 FEBRUARY 1998
MRS E FRANCE,
and MR F ALDHOUSE
Chairman
191. May I welcome you to the Committee this morning
to give evidence to us on the Freedom of Information White Paper.
I should just like to work out with you to what extent you would
like to say a few words about your paper. We have had it a week
or so and you gave it yesterday at the conference, half of which
I was able to attend, though unfortunately I missed your speech
in the afternoon. Would you like to make an opening statement
based on your paper or make any further comments arising from
the reaction to it yesterday before we start questions?
(Mrs France) Thank you for the opportunity of
talking to the Committee. Yesterday I did not in fact speak to
the paper as a whole but picked one or two points which I thought
others were not covering at that conference. I clearly want to
begin, as I am sure everybody you have seen has begun, by welcoming
the fact that we are going to see FOI legislation in this country.
It is very important that we should do so and I want to make it
clear that from my point of view you need the two pillars if we
are to get the citizens' confidence in public bodies and (it is
public bodies we are talking about). To get that confidence we
need their ability to see such information as freedom of information
legislation will release and we need them to know also that their
own personal information will be properly respected by those public
bodies. The two pieces of legislation, data protection and freedom
of information, make sure that balance is there as we move now
into a period where increasingly information has a value beyond
anything we had expected when the Data Protection Act was first
drafted anyway. That is our starting point. Our concerns, inevitably,
will focus on those areas which we know about and have a statutory
responsibility to deal with. There is a danger in sounding negative
in concentrating on those but I want to make clear that our general
response is to welcome the White Paper and the legislation.
192. The White Paper has had an incredibly good press,
very deservedly. Yours will probably be the first comments which
could be seen as saying "yes, but", about it.
(Mrs France) I am aware of that and conscious
that I do not want to leave the Committee with the impression
that we do other than welcome the thrust of the White Paper. Our
difficulties relate to trying to read chapters 3 and 4 of the
White Paper together and trying to understand the extent to which,
when we actually see draft legislation, what appear to us in the
White Paper to be statements which do not fit very easily together,
will actually disappear. If we explain those concerns, the chances
of the Bill being drafted in that way will be improved. It seems
to us that Chapter 4 makes clear that in relation to personal
information data protection legislation will take precedence.
That is not clear from Chapter 3 and some of our concerns relate
to our reading - and it may simply be our reading - of Chapter
3, which still seems to apply the harm test to personal data.
We think that is an inappropriate test when we are talking about
personal data. Let us be quite clear.
193. Do you think it should be "substantial harm"
and not "harm"?
(Mrs France) No, I do not think we should look
at harm at all. You have to turn it on its head when you are looking
at personal data. Let us be quite clear that I am not talking
about personal data if it identifies a public servant doing his
official duty, for example. I am not talking about the fact that
my name appears on papers from my office or that an official in
a department is named. That is not what I am talking about. I
am talking about information about me as a citizen held by Inland
Revenue or held by the Immigration and Nationality Department
or health information held about me by a health authority or a
trust. I am talking about personal information as defined in data
protection legislation. Where we are talking about that sort of
personal information, the requirements of data protection law
should take precedence over the way FOI interprets access. That
means that you have to look very carefully at when you override
an individual's right to keep that information between him and
the public body and you would look at a public interest test rather
than a harm test. It seems to me that the fact I have made my
return to Inland Revenue may not cause harm if it were known publicly,
but it is a matter between me and the Revenue and should not simply
be information released under the normal tests of freedom of information
legislation. Certainly it must be true of health information,
that that should be something between me and the health professional,
with the provisos which already exist for sharing that sort of
information. Personal information is different in kind. Clearly
there is a balance. Freedom of information legislation applies
across a range of public information. I notice from published
considerations of this Committee so far that you have actually
looked quite a lot at the fact that in other jurisdictions people
often do ask for their own information under FOI laws. Currently
they can ask for that information under data protection law, if
the information is held on computer. In the future, they will
be able to ask at least for an extended amount of information,
as some manual files will be covered. The Data Protection Bill
is of course being considered at the moment and the definition
of manual data in that Bill is a matter of debate. I understand
that my interpretation of the words in the Bill is wider than
the Minister of State's interpretation. There does need to be
some certainty about how far the new Data Protection Bill will
cover manual records.
194. You mentioned in quite an interesting way in your
opening remarks a kind of clash or dissonance between the way
you read chapter 3 and the way you read Chapter 4. Might this
have been resolved if you had been consulted on the drafting of
the White Paper itself?
(Mrs France) Clearly a hypothetical question.
It might have been. Certainly we have had long and ongoing discussions
with colleagues and with officials in both the Cabinet Office
and the Home Office but we did not actually look at the draft
as such and were not consulted as the draft was developed. The
answer to that is that I do not know, but possibly. It would seem
to me that Chapter 4 addresses data protection issues but is almost
self-contained. It may well be that some of the difficulties could
have been resolved.
195. It does certainly seem a little odd, given the critical
nature of resolving this conflict between the privacy requirements,
which are protected by your office and the legislation under which
you operate, and freedom of information as a general concept,
that you were not consulted to attempt to resolve that inherent
conflict which there must always be between the demand for privacy
and the demand for freedom of information, does it not?
(Mrs France) I can only say that we have made
our views on this subject generally known in a variety of fora
but we were not particularly asked to comment on the draft.
196. Or brought into the discussions in any way.
(Mrs France) Not those specifically designed to
draft the White Paper. Very early on - but very early on - we
had some discussions with officials.
197. We have had the Chancellor of the Duchy of Lancaster
in so obviously we do not have the opportunity now to ask him
the question, but at least we have the Lord Chancellor coming
at a later session and we can put some of those questions to him
as well. Your evidence this morning on that point will be very
useful.
(Mrs France) I should perhaps make clear that
although we are talking about data protection and privacy (and
I like to see data protection described as part of the right to
privacy), at the heart of data protection legislation, wherever
you find it, is the right to see what information is held about
me. It does need a very strong right within data protection law
to let every individual see what information is held, not just
by public bodies but by anybody.
198. That is equally as important as the denial of the
disclosure to a third party of information which you regard as
private to yourself.
(Mrs France) Yes.
Mr Hancock
199. What would you have brought to the debate if you
had been involved more? What specific points would you have liked
to have seen in there which are not there?
(Mrs France) The points which we would have emphasised,
but they are not points unknown to the Chancellor of the Duchy
or those who drafted the White Paper, because they have seen it
in other jurisdictions which they have visited, the points which
need to be addressed are how you minimise the inevitable tension
between the two rights; the right to privacy is fundamental but
not absolute and it has to be tailored as appropriate. We would
have perhaps tried to repeat - and we have said these things in
other fora - the importance of making sure that when you draft
the legislation the tensions are ones which you intend to remain.
My biggest worry is slight differences in emphasis in the two
bits of legislation may lead two statutory bodies to what amounts
to conflict simply over the definition of terms. Because they
are statutory bodies and bound by the legislation they are trying
to interpret, this could cause difficulties for those who want
to obtain information. You need to minimise those and you need
to look at resolving mechanisms. We have talked about different
ways that it is possible to slice the responsibilities, but that
was in the days before the Government had decided that they wanted
to have an Information Commissioner. You could look at freedom
of information as it relates to personal data and as it relates
to more general information as two different aspects of the right
and you could have them administered separately. You could have
them administered together. It is that sort of debate, how you
minimise the rubbing edges.
Chairman
200. My last question is about the role of the Information
Commissioner. Do you see the choice of the role of the Information
Commissioner and the need for what you might call a separate Information
Commissioner and with a responsibility in the main to courts and
with no back up from a select committee as the Ombudsman has from
this select committee, as a strength or a weakness in the design
of the White Paper?
(Mrs France) You do not have to go completely
for one model or the other. The way my office is designed is a
good model for the Information Commissioner; clearly my powers
to enforce, go to a tribunal and ultimately to the courts. When
you say that I do not have the same support of a select committee
as the Ombudsman does, that is true.
201. The Ombudsman may not think we do support him. I
do not know. Theoretical support anyhow.
(Mrs France) I do report to the Home Affairs Committee
and I am answerable to Parliament, so I have that mixture. Clearly
the Home Affairs Committee have a wide variety of responsibilities
and do not have the opportunity to give me the support that you
can provide to the Parliamentary Commissioner. One of the things
one might look at - I do not have the magic answer to this - is
the Select Committee structure and ask: if we are having an Information
Commissioner, a Data Protection Commissioner, a Parliamentary
Commissioner, whether it would be appropriate to have a select
committee focused on Information. Would it be appropriate to have
this Select Committee with a remit which extends to cover data
protection as it applies to the public sector? The difficulty
is that my responsibilities go beyond the public sector. We have
toyed with the idea of suggesting that the proposed Human Rights
Select Committee might take a broad view of its responsibilities.
There are different ways you can do this. I do think Parliamentary
accountability in the form of the support of a select committee
is important but that does not mean you cannot also have the route
straight out through administrative enforcement and into the courts.
202. When you have read through paragraph 5.16 where
it discusses the different possible types of Information Commissioner
and justifies the choice of one that is said to be independent
and almost contrast this in a kind of a way with the present Parliamentary
Ombudsman, do you think that is an accurate description of the
relationship between Parliament on the one hand, Ministers of
the Government with a majority on the other hand and this theoretical
possibility of interference or overriding decisions or steering
it a particular way, and the true independence of the Information
Commissioner as is proposed in the White Paper. Have they got
it right in there?
(Mrs France) The drafting is unfortunate. It does
not convey the right sort of message about the independence of
the Parliamentary Commissioner which none of us questions. The
way that he is appointed or the way that I am appointed do not
differ to the extent that the drafting suggests. We are all subject
anyway to judicial review in our decisions as public servants.
My view is that there is advantage for the Information Commissioner
in having the route out to the courts but I do not think that
the implication that not having that curbs independence follows.
203. Is there any danger of ombudsmen overload, having
too many? Data Protection Registrar, Information Commissioner,
Parliamentary Ombudsman.
(Mrs France) Yes. We have a problem because we
are clearly all keen and properly keen to see this range of rights
enshrined in statute in the United Kingdom. It does not sit as
comfortably as it might with concepts of better government and
one-stop shops for citizens. I am concerned that we shall present
a confusing picture to the citizen who wants to exercise his rights.
A lot of that will depend on culture change in the public sector,
which we keep hearing a lot about and which we are all hopeful
will be triggered by this sort of change in the legislative framework.
If it is the case than an individual going into a government department
or a local authority or NHS trust for information is simply given
the best opportunity to obtain the information by those to whom
he makes the application, whether he has made it under the right
piece of legislation or not, then maybe there will not be a problem.
If officials play games, telling people they should really have
applied under the Data Protection Act and send them back to square
one: or we have difficulties over not drafting harmoniously the
rights of appeal: or the charging mechanisms, then we shall get
into all sorts of complications for citizens which will reduce
the effectiveness of what we hope will be an important new right.
Mr Ruffley
204. It seems to me that this could descend into an unholy
mess for the reasons you have given: people not being entirely
clear about their rights. What I should like to ask in particular
is: what is your judgement as to the interaction between article
8 and article 10 of the European Convention on Human Rights on
the one hand a right to impart information contrasting against
the opposite and opposing right to privacy? Do you envisage your
office or any of your successors or the Information Commissioner
being involved in a great deal of litigation where individual
citizens are seeking on the one hand maybe to exert their right
to privacy, as against another body wishing to assert the right
to impart information under the new Freedom of Information Act?
Is it not the case that if the European Convention on Human Rights
is indeed incorporated in UK domestic law - let us just assume
for a minute that it is if the Bill goes through, and we have
every reason to think it probably will do - will not more people
be asserting these rights and will we not have a miasma of litigation
and confusion? What is your response? I am deeply worried about
it. You touched on the problem of confusion for the citizen and
for public bodies in your last set of remarks.
(Mrs France) Clearly there is a danger of that
and we have to try to make sure we minimise it. If you look at
the history of my office, we are not prone to taking formal enforcement
action very often under the current law. Clearly our own Bill
now is going to give individuals more rights that they can exercise
directly to the courts and clearly if we do incorporate human
rights, if the Human Rights Bill does go through, then the courts
will look at that under article 8. Article 10 deals with freedom
of expression, article 8 with privacy. They are both fundamental
rights but there does have to be a balance in between them. The
exemptions from article 8 are quite clearly specified. We have
referred in our memorandum to article 8 (2). There is no need
for there to be constant clash. It would be very unfortunate if
we set up two individuals who were seen to be almost put in place
to create tension and argument. That would not be the best way
forward. You can look at other jurisdictions, as indeed the Chancellor
of the Duchy of Lancaster has done. At federal level in Canada
you do have the two commissioners. There is a tension between
them. It is not always constructive. We have to learn from those
lessons. Neither am I suggesting that for that reason it is not
the right model: in drafting a solution we have to be very careful
to minimise the risk of ending up before the courts with articles
8 and 10 being argued out. We have to design resolution mechanisms
further down the process than that.
205. Could you give us a couple of examples where there
may be such a conflict? You talk about resolution mechanisms.
What would those resolution mechanisms be in relation to a particular
problem? Perhaps you could just state a potential conflict and
an example of how you might have a resolution mechanism? I am
very unclear about that. I think there is potential for complete
and utter wholesale confusion and I just wondered what your judgement
was on that.
(Mrs France) Currently I have to say that very
few people complain to me about having been denied their subject
access right, and it is principally that right we are talking
about when we talk of a likely clash. Throughout the country,
day in, day out, I hope people are making subject access requests.
Data users do not have to do returns, so we do not know how many
there are, though we do know how many there are to some public
bodies with whom we deal. Less than 10 per cent of complaints
in any year to my office relate to people feeling that they have
not been given that right. The first thing is to try to encourage
bodies approached for information to provide the information in
a way that meets the request and to be sensible in their interpretation
of both FOI and data protection law. That is the first point at
which we can draft to try to encourage a solution which does not
lead to any enforcement. Once you get to looking at a complaint,
then there could be tension because what we will be looking at
is whether the public interest override of an individual's right
to privacy is justified. It will be at that point of balance,
assuming we accept that for personal information the harm test
is not appropriate, you actually have to make an assumption that
an individual's information is a matter between him and the public
body. There will be cases where the individual knows he is giving
it to more than one public body or there are other reasons to
disclose, but the starting point is that. Then you look at a public
interest override and it is in interpreting that, that there might
need for debate and discussion. We issue guidance notes on the
interpretation of the law. I would have hoped that the Information
Commissioner and the Data Protection Commissioner in that environment
would work together to produce interpretations of that kind which
are clearly subject to the courts at the end of the day but help
us perhaps not get to that stage, that sort of resolution mechanism.
I suppose another way forward would be - though I have not thought
this through in detail - some sort of college of commissioners,
having some resolution mechanism within that in cases which involve
more than one commissioner's jurisdiction. It would have to be
informal enough to not mean you would still have to go to the
courts but you could write into the legislation an obligation
to consult at the point before you reached that stage, could you
not?
Chairman
206. A college of commissioners. Could you clarify that?
(Mrs France) I suggested in my memorandum that
you could have a body - how broadly you draw it would be a matter
for debate - which included for example the Ombudsman, the Data
Protection Commissioner, the Information Commissioner, perhaps
the Local Government Ombudsman.
207. This is like having a college of cardinals but without
a pope.
(Mrs France) You might decide you needed a pope,
but that would be a matter for consideration.
208. Then the question asks itself, does it not? Who
is the pope?
(Mrs France) That would be a matter for consideration.
I would have hoped you could simply put a resolution mechanism
which asks people to discuss before you get into the formalities
of going before the courts. What we have suggested in other contexts
- and you could say that I am in danger of proposing the same
solution whatever the problem - is that in seeing ourselves as
part of the human rights agenda, we have suggested, although I
appreciate that at the moment the Government has decided they
are not going to appoint a Human Rights Commissioner, that a Human
Rights Commissioner could be appointed who was the supra-commissioner,
if you like. In a human rights context we have said that we have
one aspect of human rights to look at - article 8 - and that there
are others, Equal Opportunities Commission, CRE - the Information
Commissioner if you consider that article 10 comes within his
remit might be one for the future - and that if you had a Human
Rights Commissioner - -
209. I thought you were worried about ombudsmen overload.
(Mrs France) I am worried about ombudsmen overload
and I would not perhaps choose to do it that way. If we have made
a decision that we have all these people with all these different
responsibilities, what I do not want to see is a Human Rights
Commissioner brought in with a salami slice of responsibilities
from each of the existing commissioners. My suggestion is that
he should not have any sectoral responsibilities within the human
rights framework but should simply act in that way, making sure
there is coordination, cooperation and resolving some of the issues
which do not have to go before the courts; not having a staff
as such, but simply sitting to hold together the group.
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