Examination of witness (Questions 260 - 279)
TUESDAY 3 FEBRUARY 1998
MR M BUCKLEY
Chairman
260. Thank you for your patience and tolerance, sitting
there quietly waiting for your opportunity. I am very sorry that
the Committee is running behind this morning but it is a fairly
burning issue. You will have seen that we could have probably
carried on with the Data Protection Registrar quite happily for
another half an hour. Welcome, so that you can have your opportunity.
Would you like to make an opening statement? You are used to this
Committee, like nobody else is obviously. Feel free to do so or
we will go straight in with the question, whichever you prefer.
(Mr Buckley) I will just make a very brief opening
statement, if I may? It very much echoes some of the things which
the Data Protection Registrar said. Like her, I greatly welcome
the substance of the proposals in the Freedom of Information White
Paper and in particular to put access to official information
on a statutory basis; that is entirely right. I do have some concerns.
They are essentially about the mechanics of the proposals in the
White Paper. I certainly would not want those concerns to be taken
as any sort of criticism of, or opposition to, the proposals of
substance in the White Paper. Like Mrs France, what I am worried
about is that the creation of a new authority in the form of an
Information Commissioner, is likely to further complicate a complaints
system which is already complicated and hard to understand. As
I told the Committee during a previous session, I cannot give
precise statistics but my firm impression and that of my staff
is that there are significantly fewer pure freedom of information
complaints than complaints about maladministration or failure
of service which have as one aspect a complaint about inadequate
access to information. I believe that the experience of other
public sector ombudsmen is similar. Whatever else may happen,
it is, in my view, essential that the investigation of mixed complaints
should not be made more difficult or time-consuming; that would
be a great disservice to the typical complainant. I therefore
welcome what is said in paragraph 5.15 of the White Paper about
the need for close working relationships between the Information
Commissioner and public sector ombudsmen. I do stress again that
my concerns are about mechanics and not about substance.
261. You will have heard me ask this question to the
Data Protection Registrar, but I will ask it to you now and it
will be no surprise to you. The question is: to what extent if
any were you consulted on the drafting of the White Paper?
(Mr Buckley) We had some exchanges with Cabinet
Office officials in the early summer. Certainly I was not consulted
in any way about the text of the White Paper.
262. Could I draw your attention to paragraph 5.16 and
ask you to say what you think about it? Obviously it is a matter
of sensitivity for you and it is a matter of some sensitivity
for this Committee as well. What ought the relationship with Parliament
to be? Could any relationship with a Parliamentary committee,
such as your relationship with respect to your ombudsman work
with this Committee, be said to mean a loss of independence or
could it be construed as a loss of independence, as you might
read paragraph 5.16 to imply?
(Mr Buckley) I do not believe it does. I speak
with some caution because I would not want it to be thought that
I was telling the Committee how to do its business or pontificating
on what it does. That would be impertinent of me and I have no
intention of doing it. Like my predecessors, I do greatly welcome
the support of this Committee and you yourself queried whether
it was always support. Sometimes it is like an energetic workout,
very tiring at the time, but it is good for one in the long run.
It seems to me entirely right that, like any other aspect of public
administration, freedom of information should be subject to Parliamentary
scrutiny and examination. There is some confusion in the White
Paper, I hope it is inadvertent, about the relationship between
me in particular, as Parliamentary Commissioner, and the Select
Committee. The Select Committee and its predecessors never got
involved in individual cases. It seems to me that essentially
what the Committee is doing is to oversee the effectiveness of
me, my office and our operations and to take evidence so that
they can produce recommendations to the Government on matters
which emerge. It seems to me that is something which could perfectly
well be done and indeed should be done regarding a Freedom of
Information Commissioner. That does not in the least preclude
the Freedom of Information Commissioner looking at individual
cases on their merits, being subject to the courts, as indeed
I am, by way of judicial review and not being subject in any way
to political interference.
263. If you had been consulted on the drafting of the
Bill, do you think you would have been able to make all this clear
to the Cabinet Office and Ministers who were finalising the draft
of the Bill?
(Mr Buckley) I would certainly have tried.
Mr Bradley
264. How effective do you think the mechanisms the White
Paper sets out for appeal pre-commissioner stage will be? To what
extent will we be able to sift out problems of access to information
before it gets to the Commissioner?
(Mr Buckley) That is very much a matter for departments.
As has been said in many contexts and on many occasions, the White
Paper does pre-suppose a change of culture, not merely within
central government but in public authorities more generally. As
the Committee knows, the ambit of the White Paper goes well beyond
central government. All I can say is that I see, as Parliamentary
Commissioner, only a small proportion of complaints which go to
departments, requests for information under the Code. At the moment
it seems to be working reasonably well. One always has the question
of when complaint fatigue sets in and people say life is too short
they are going to abandon this. We do receive only a very small
number of complaints. The Code of Practice on Access to Government
Information has been going for nearly four years now; it came
in in April 1994. We have had of the order of 150 complaints in
total.
265. Much has been said about the need for expedition,
that when somebody requests information it should be provided
to them quickly or if not the appeals mechanism should take place
quickly. That is a very stark contrast to the length of time that
it takes you and the difficulties you often face in undertaking
your own investigations. Do you feel if it is applicable in the
case of the Information Commissioner that it ought also to be
applicable in your case? Or are we talking about different exercises
and different difficulties?
(Mr Buckley) We are not talking about different
exercises: we are talking about a very different institutional
and statutory framework. One has to bear in mind that there are
some requests for information which are inevitably under any regime
going to take some time to process; for example, the request for
information when the authority concerned says they are sorry,
they cannot produce this from their computer system without a
huge re-programming exercise. You have a choice. You can either
take their word for it, in which case the information will not
be made available, or you have to get your own people to look
at it and see what the system can actually do. With the best will
in the world that takes time. There will be cases of information
which is regarded as commercially sensitive and it seems to me
only reasonable that the owner of that information, the person
who produced it in the first place, should have a chance to say
just why it is sensitive and again that is going to take time.
My investigations take a lot longer than I would like, even in
cases other than the ones I have mentioned, partly because we
have the rather cumbersome procedure of the 1967 Act, which does
push one into a lot of formality and time-consuming formality
at that, and because, as I have said in my memorandum, there is
a tendency on the part of departments, which has been commented
on by my predecessor as well, to plead every exemption they can,
and that takes time to argue out, not to accept the view of me
or my staff on whether the exemption applies and then, if the
harm test is relevant, to take issue with what we say about that.
If one is saying that in future there will be a freedom of information
jurisdiction which says, like a court, it will hear what we have
to say and hand down its judgment - the court does not negotiate
or have lengthy discussions with the parties about what it is
going to find, it makes its findings - that should produce a much
quicker resolution, quicker settlement of requests for information.
266. Would the same apply to your investigations? When
a body says to you that this information is sensitive and therefore
they will not be providing it to you, I assume that is what happens.
They do not provide you with the information and say it should
not be further disclosed, do they?
(Mr Buckley) No. We get the information, we examine
it and we would then have discussion typically with the department
who would then consult the commercial firm or whoever it might
be about their views on the sensitivity. We would see the information
and we would reach a judgement on whether or not arguments of
commercial sensitivity were justified or whether, even if they
did apply, public interest would prevail. If I could pick up an
inference in Mr Bradley's question, it may well be that I and
my predecessors have been too reasonable, that we may have to
adopt a somewhat brisker approach with departments because if
the Government wants me to act as referee we cannot have a situation
in which every time I award a free kick everyone troops off the
field for an elaborate investigation of the rule book and to telephone
the FA. We have to produce a faster resolution. In fact I put
some proposals to the Cabinet Office which I am discussing with
them, which I hope will get quicker throughput times. I entirely
accept some of the criticisms which have been made in appearances
before the Committee and elsewhere that we take too long. We do
and in too many cases.
267. I am very, very encouraged to hear that. Could you
share the proposals you have put to the Cabinet Office, under
our right?
(Mr Buckley) Indeed, I shall be perfectly open
with the Committee as I always am. What I have suggested is that
we will look at the information, we will hear what the Department
has to say and we will then produce our findings which will be
put in a report going to the referring MP. That will not actually
include the information, but if the department wishes to continue
to refuse to provide the information, that is a matter which will
be thought out in the first instance between the referring MP
or the Minister or the department and ultimately it might be a
matter which involves the Select Committee. It may be that the
Cabinet Office will come up with some better alternative and there
are some problems with that approach, I have to say. The object
of the exercise, as far as I am concerned, is to get a much quicker
resolution of freedom of information complaints.
268. On freedom of information, do you think that it
would be right to have a hierarchy of freedoms? What I have in
mind is that when the information requested by an individual is
time limited in its usefulness, the individual is seeking redress
or changing of decisions or whatever and needs that information
in order to make the case or to influence decision makers, it
seems to me to be more pressing in a practical sense than simply
somebody who wants information for the sake of their memoirs or
some other purpose. Do you share that or do you think there should
be an equality of treatment?
(Mr Buckley) As a practical proposition, I find
it very hard to disagree with that. There may be some difficulties
about translating it into statute. There is a danger if you start
differentiating the regime according to the purpose. The basis
of freedom of information regimes as I understand them is that
if information should be made available, it should be made available
to whomever. This seems to me something that the Freedom of Information
Commissioner might develop as a matter of administrative practice
but I think it might be difficult to put that into the statute.
269. I accept that it would be difficult for the reasons
you stated and others too. I am always very interested in the
practicality and usefulness of measures which otherwise could
remain theoretical and conceptual. They have to have real application.
The great concerns we have about the length of time it takes to
complete your investigations and indeed the powers of others such
as auditors, is that by the time they have completed very rigorous
pieces of work they have become academic because the problems
have moved on, the people who have complained about them have
moved on and the consequences they have suffered have become irreversible.
I acknowledge that it will be difficult but I hope that those
difficulties will be overcome. The other issue I want to touch
on very quickly is this problem of the proliferation of "ombudspeople".
If I remember my Latin, ombudsman or person or whatever was literally
somebody who had an interest in everything.
(Mr Buckley) It is a Scandinavian word.
270. I was pretty good at Latin but not so good at Scandinavian
languages. That was the principle, was it not? It may very well
be right that we have ports of call or points of appeal which
specialise in various areas of investigation, but ought they not
to be really under the same umbrella? Would it not for example
be an advantage that a citizen can make an application directly
to yourself or to some other person and it would be for you to
decide who or which branch of your service would investigate it?
In a sense it is the same question I put to the Registrar about
the individual having the right to request information and it
is for the body which is to provide that information to decide
under what legislation it should provide that service. Should
not the citizen have an absolute right to make the application
to an office? Should it not be that office's responsibility to
define how it will be treated?
(Mr Buckley) I see very considerable attractions
in that. Going back to Scandinavia briefly if I may, the concept
of the ombudsman originated in Sweden, which is a small country
with a very different constitution from ours. Yes, the ombudsmen
covered pretty well everything in the public sector: central government,
local government, the courts, the police, the lot. That made it
very simple and easy for the complainant and that is the normal
practice in most countries overseas. We have gone down a different
road for historical reasons but it does mean that we have an exceedingly
fragmented and complicated system. Given that we have a population
of 56 million, it might well be impractical to follow the exact
Scandinavian model. If you are looking at the population of three,
four, five million, it is different. I do think, however, that
there should be a one-stop shop so that the complainant with a
complaint against "them", the public sector, public
authorities, could simply write to that one-stop shop which would
then sort out the best way of handling the complaint, the appropriate
legislation and so on. If, as so often happens, there is a complaint
straddling two parts of the public sector, that can be worked
out internally rather than having the sort of nonsense we can
get at the moment when someone starts off with a complaint against
a NHS body for example, finds that involves the regional office
of the NHS Executive, which is not within my jurisdiction as Health
Service Commissioner but is as Parliamentary Commissioner. They
are told we are very sorry but they must go off and find a friendly
MP who will refer the complaint to me.
Miss Johnson
271. In your memorandum on this subject you list all
the various other commissioners there are. How much contact do
you currently have with all those other commissioners and do you
also see all their work as being brought under this one-stop shop
idea which you are advocating?
(Mr Buckley) I see a good deal of the other public
sector ombudsmen; I am in fact meeting with my colleagues this
afternoon. I am ex officio a member of the Commission for
Local Administration in England and also in Wales, so I see them
anyway. I see less of some of the others: I see the Housing Ombudsman
on the same type of occasion; I see the Data Protection Registrar
from time to time; I do not see much of the Police Complaints
Authority or the Prisons Ombudsman or the Utilities Regulators
except sometimes when I need to investigate their affairs as PCA.
There is a spread but I see a lot of public sector ombudsmen and
rather less of the other public sector complaints authorities.
272. Basically it is a matter of practice rather than
anything structured, is it?
(Mr Buckley) That is exactly right. If one did
go down this road of setting up some sort of college of ombudsmen
or commission or whatever one chose to call it, then clearly one
would need to think through carefully exactly what the coverage
was and exactly how the relationship applied between different
parts. We have a lot of useful exchanges but they are informal
exchanges; exactly right.
273. What would you see as the advantage of putting it
into a college arrangement?
(Mr Buckley) Essentially I would see it as an
advantage for the complainant that they would be able simply to
send their complaint to one address. If someone has a complaint
covering my jurisdiction as PCA, as HSC and also local government,
then they have to make three separate complaints. That does not
seem to me to be a reasonable thing to ask of complainants, many
of whom are poor, inarticulate and find difficulty in understanding
what the system is at all.
274. What would the problems of doing it be in your view?
(Mr Buckley) One would obviously want to make
sure that one got economies rather than diseconomies of scale.
We would not want the thing to become excessive bureaucracy but
operationally I cannot see any disbenefits.
Mr Campbell
275. I think the White Paper says they are going to create
a new criminal act: wilful, reckless distortion, alterations,
withholding records. In your department and your experience have
any of your investigators found that in the new code of practice
or even in the job as Health Commissioner or Commissioner overall?
(Mr Buckley) I have never found any example of
deliberate destruction of records. You may say: how would I? If
they have done a good job, I will not and that is something one
has to say is a possibility. It is actually quite difficult, if
you have free access to the files and there is any elaboration
to get a perfect job of destruction done. There is little of that.
There are occasions, from time to time, of what we detect as ex
post facto insertions into health records; whether it might
be innocent or otherwise one has no means of knowing. There is
a general problem which the Information Commissioner will have
to address, that the standard of record keeping in departments
has, in my view, declined. That is partly because increasingly
things are put on computers rather than files, but also because
of the pressure on running costs which has existed and one of
the easiest ways of making economies is to cut the registry drastically.
That is a problem which will have to be addressed. My impression
is that certainly within central government and the Health Service,
deliberate destruction of records does not happen.
276. You do not envisage someone trying to cover up malpractice?
(Mr Buckley) It could happen.
277. I think it has happened a couple of times if my
memory is right.
(Mr Buckley) One or two cases where there have
been, shall we say, ex-post facto improvement of records.
One has to take with a pinch of salt some of the accounts we get
from departments at the first stage of an investigation about
just what the history was, but we can usually find that from going
through the files. I believe that the real problem is going to
be that many records are not in a particularly well kept state.
It would be difficult to get them together. There is an increasing
problem of records not being kept on paper but just being entered
into the computer or onto the screen and not getting onto the
longer-term storage medium.
278. What about my yellow peril?
(Mr Buckley) It is going to be difficult to ban
the use of Post-it notes. I frequently use them myself when I
want to put something which is for the line manager to decide
whether or not he tells his staff.
279. This could be described as malpractice. If I wanted
to fail somebody and I stuck it on there and said some horrible
things about whoever it is, when your investigator comes along
it comes off.
(Mr Buckley) No trace at all; absolutely. I do
not see how one does that, short of actually making it a criminal
offence to continue to use Post-it notes, which seems a bit drastic.
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