Memorandum submitted by the Parliamentary and the Health
Service Ombudsman
1. I welcome and support the Government's decision to place
access to official information on a statutory basis under Freedom
of Information ("FOI") legislation.
2. The content of a FOI regime is for the Government and
Parliament. I am, however, interested in the practicality of any
proposals so far as they affect my present jurisdictions. I have
approached my consideration of the White Paper (Your Right to
Know - Cm 3818) from two aspects:
(a) the interests of the complainant; and
(b) whether the proposals in the White Paper may make
it more difficult to apply my existing jurisdiction efficiently
and effectively.
3. What I say about the White Paper should not be construed
as criticism of the substance of the proposal to have FOI legislation,
but as comments on the mechanics of how the purposes of the White
Paper will be achieved. I hope they will assist those responsible
for translating the proposals into legislation. As the Chancellor
of the Duchy of Lancaster has said, this is a complex issue; and
it is essential that mistakes should not be made with the mechanisms
for giving effect to the legislation as it may be difficult to
correct them for many years.
4. In his evidence to you on 16 December Dr David Clark said
that the White Paper had been drafted with the ordinary citizen
in mind. I have no doubt that that is of importance to the Government.
However, I do not think that the creation of a wholly new complaints
authority is likely to help the ordinary citizen.
The need to reduce complexity
5. The system of public sector complaints procedures and
authorities in this country is already undesirably complicated.
It compares unfavourably with most other countries, where there
is one public sector ombudsman or college of ombudsmen which considers
all complaints about public bodies, including FOI matters. That
is the approach adopted in the Republic of Ireland under their
recent FOI legislation. The experience of my office and that of
other ombudsmen and complaints authorities is that many complainants
find it difficult to know whom to complain to. Each year we receive
many complaints which should have been sent to some other authority.
A list of the complaints authorities that already exist in the
area where it is proposed that an Information Commissioner should
operate is revealing. In addition to the Parliamentary Commissioner,
there are the Health Service Commissioners for England, Scotland
and Wales, the Commissions for Local Administration in England,
Scotland and Wales, the Northern Ireland Parliamentary Commissioner
and Commissioner for Complaints, the Housing Ombudsman, the Data
Protection Registrar, the Police Complaints Authority, the Prisons
Ombudsman, and the Utilities Regulators. Creating another authority
in the form of a Information Commissioner is bound to further
complicate the task of the ordinary citizen in seeking redress.
Scottish and Welsh devolution are likely to add further layers
of complication.
6. Moreover, it is the experience of all the public sector
ombudsmen that complaints relating solely to access to official
information are considerably fewer in number than complaints which
are essentially about maladministration or some failure of service
but which involve a freedom of information aspect. Since the inception
of the Code on Access to Government Information in April 1994,
as PCA, my office has received only 144 pure AOI complaints. That
fact is recognised in paragraph 5.15 of the White Paper. As HSC
I have received even fewer pure AOI complaints; but there is a
significant number of cases where an aspect of the complaint is
a failure to provide information. Many complainants find it difficult
to formulate their complaint. The effect is that not infrequently
I receive complaints which purport to be about orthodox maladministration
when in fact they are concerned with requests for information,
and vice versa.
7. Again, some complaints relate to bodies within the jurisdiction
of more than one ombudsman: a complaint may, for example, relate
to matters where staff from both a health authority trust and
a local authority are involved. This means that a complainant
has to deal with two bodies in relation to what is essentially
a single grievance. There is provision for cooperation between
the ombudsmen in these circumstances; but it does not make the
matter any simpler for the complainant or the ombudsmen. To add
yet a third complaints authority and to require the complainant
to deal with both the ombudsmen and the new authority on what
may be, for the complainant, one grievance with several causes
would put him or her to unnecessary trouble, risk confusion, and
be wasteful of public funds. I welcome what is said in paragraph
5.15 of the White Paper about the need for cooperation between
the Ombudsman and the Information Commissioner.
Speed of resolution of complaints
8. The White Paper refers to a speedy resolution of complaints
to the Information Commissioner (see paragraph 5.3). In that respect
the existing AOI regime is contrasted unfavourably with what the
White Paper proposes. Dr Clark, in his evidence to the Committee,
referred to unacceptable delays in my office's investigations.
I accept that the comment is true: such delays do, regrettably,
occur. But I do not accept that it is fair.
9. First, AOI cases are investigated by my office in accordance
with the procedure laid down by the Parliamentary Commissioner
Act 1967. That procedure is cumbersome. It means that delays are
built into the investigation process. It is partly for that reason
that I have previously made the point that FOI legislation should
be separate from, and not grafted on to, the 1967 Act.
10. Secondly, there are cases which inherently take time
to resolve. If, for example, a complainant alleges that a department
proposes to levy an excessive charge for providing information,
or a department argues that its computer system is for technical
reasons unable to provide certain information, then there is no
alternative, if justice to both parties is to be done, to examining
the work involved or the technical capabilities of the computer
system, as the case may be. But many cases investigated by my
office take an unduly long time because departments:
- ask for more time to consult their colleagues about
the meaning of the Government's own Code; or
- dispute my interpretation of the Code and the exemptions
under it; or
- dispute my judgment regarding the "harm"
test.
Such difficulties should not arise under a statutory regime
enforced by an authority, whether an Information Commissioner
or otherwise, with power to make binding determinations, subject
only to judicial review. They have no bearing on who should exercise
the proposed new jurisdiction.
The need for independence
11. The White Paper says that the Information Commissioner
will be an independent office holder. Clearly that must be right
because, as the White Paper says, he would otherwise be amenable
to political interference. However, I do not understand or accept
the implication in the White Paper that I am so amenable. As with
the Data Protection Registrar (whose position is contrasted with
mine in the White Paper), my salary is paid from the Consolidated
Fund; I am appointed by the Crown; I may be dismissed only for
cause and in consequence of Addresses from both Houses of Parliament;
and I report to Parliament. I assume from the Chancellor of the
Duchy of Lancaster's evidence to the Committee that similar provision
will be made in relation to an Information Commissioner. The statement
in paragraph 5.7 of the White Paper that I am not an independent
office holder is totally inaccurate.
12. The same paragraph says that I am accountable to Parliament.
So I am, but only to the extent implied by paragraph 11 above.
It may be that the White Paper is based on a misunderstanding
of the role of the Select Committee. Like my predecessors, I greatly
value the advice and support of the Committee. But the Committee
does not give me instructions regarding the conduct of investigations,
nor on how I should exercise the discretions vested in me by the
Parliamentary Commissioner Act 1967 and the Health Service Commissioners
Act 1993; nor would it be lawful for me to allow any such instructions
to be the sole determinant of my actions. The Committee has an
important role in regarding the operation of my office, in that
it rightly must have an overview of how the office performs and
of its efficiency so that it may advise Parliament as appropriate.
That would seem appropriate for any body funded from national
taxation, even if otherwise independent; and I would not expect
less in relation to an Information Commissioner. The Data Protection
Registrar is within the purview of the Select Committee on Home
Affairs. Moreover, like other public sector ombudsmen and the
proposed Information Commissioner, I am subject to the supervision
of the Courts by way of judicial review.
13. The final sentence of paragraph 5.7 of the White Paper
implies that my findings are subject to some sort of "political
override". The only circumstances in which this could be
true would be if the Government used its powers under section
11(3) of the 1967 Act (or the corresponding provisions of the
1993 Act) to order me not to disclose particular documents or
information, or its Parliamentary majority to ensure that an injustice
to which I have drawn attention in a special report under section
10(3) of the 1967 Act (or section 14(3) of the 1993 Act) remained
unremedied. Paragraphs 5.18 and 5.12 of the White Paper make it
clear that neither point is relevant in this context. The only
inference which can be drawn from the White Paper is that I am
subject to political influence or direction. Neither suggestion
is true; and both are extremely damaging to the standing of my
Office. I constantly reassure complainants that I am independent
of government. I have asked Dr Clark for an assurance that the
statement will be corrected.
14. Taking all these points together, there seems to me to
be a real danger that the system proposed for the policing of
the FOI regime will be less helpful than it should be to complainants
and the bodies from whom information is sought, risk confusion,
and be wasteful of public funds.
15. In no way am I seeking to expand my existing areas of
responsibility. To my mind, there is a strong case for making
each public sector complaints authority responsible for dealing
with FOI matters in relation to the bodies within its jurisdiction.
It would be simpler for complainants and the bodies from whom
information is sought; there would be economies of scale; and
there would be less risk of confusion caused by overlapping and
multiple jurisdictions.
16. Under such an approach, there would no doubt be a need
to ensure consistency of treatment. That could be ensured by establishing
an Information Commission made up of the individual complaints
authorities and with an overarching responsibility for achieving
such consistency. Such a Commission could be modelled on the Commission
for Local Administration in England, which comprises the three
Ombudsmen and the PCA (ex officio). The Commission has the power
to issue guidance on good administrative practice, and is responsible
for defining the areas of responsibility of the ombudsmen, for
the provision of staff and accommodation, and for the preparation
and publication of the Annual Reports and Accounts.
January 1998
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