Select Committee on Public Administration Third Report


ANNEX 2

Note of a meeting at the Cabinet Office on 1 April 1998 between The Clerk of the Committee; Professor Patrick Birkinshaw (one of the Specialist Advisers to the Committee); Professor James Cornford (Special Adviser to the Chancellor of the Duchy of Lancaster), Mr Charles Ramsden (Head of the Freedom of Information Unit); and Emma Louise Avery (HEO(D), Freedom of Information Unit).

The meeting was proposed by the Chancellor of the Duchy of Lancaster as a response to the questions sent by the Clerk of the Committee to the Freedom of Information Unit. The Questions were dealt with in turn, as they related to the White Paper.

Chapter 2

1.  Private organisations insofar as they carry out statutory functions are to be included in the scope of the Act. Can you list some of the organisations and functions that are meant?

The organisations involved will include (for example) Group 4; adoption societies; tax and debt collectors on behalf of local authorities, organisations carrying out functions under the Deregulation and Contracting Out Act.

2.  How will privatised utilities be defined?

3.  Will utilities which have never been in the public sector (for example some of the smaller water companies) be included? If not, why not?

There are a number of possible definitions of utilities, including organisations subject to the Windfall Levy, operating under regulation, providing monopoly or near-monopoly services, network companies or some combination of these. In addition, the Government has now published its Green Paper on utility regulation, which explores issues of ensuring openness in the utility companies through their regulators. Perhaps surprisingly, the consultation process involved some utility companies proposing a narrow definition (to exclude themselves) but some a wider definition (to include their entire industry on "a level playing field"). Ministers have not yet taken a view on the precise extent of the provision.

4.  It is proposed that where the Act incorporates and supersedes certain existing statutory access rights which only give access to records after a specified date, there will not be a fully retrospective right of access, as there will be in the case of other records. Why is this necessary?

The proposal incorporated in the White Paper was largely drafted to deal with the Access to Health Records Act 1990; it was thought not to be feasible to open up pre-1991 Health records. But it had become clear that the Data Protection Act will cover pre-1991 health records, thus opening up subject access to them anyway. This is one instance of the expanding coverage of Data Protection. At first it was thought that it would be possible to leave Data Protection and Freedom of Information as overlapping regimes; but now legal opinion took the view that overlap was likely to result in too complicated a system for both applicant and public authorities.

5.  What rights of access to personnel files currently exist, or will exist under the Data Protection Bill?

It's impossible to give a definite answer to the second question at present. The legal interpretation of the Directive and Act together is complex and depends on certain definitional issues. The question of whether personnel files are covered by the Bill is likely to depend on their nature and structure: at least some will probably be covered.

6.  How do you propose to distinguish between administrative and law enforcement functions of the police and other bodies? How will these be defined?

This is not too difficult in the case of the courts, as there is a clear divide between the functions that are the responsibility of the judiciary, and other functions which are carried out by the administrative staff. It's more difficult in the case of police, because all the functions are carried out by police officers. One possibility under consideration is that you simply exclude information relating to certain functions under the law enforcement exclusion, thus rendering the administrative/other functions distinction unnecessary.

7.  The White Paper refers to the law enforcement functions of the police, prosecutors, and 'other bodies', such as the DSS and the Immigration Service. There are many other bodies with such functions, including local authorities, and many quangos. Dr Clark told the Committee in December that the exclusion will not cover bodies responsible for enforcing environmental or safety legislation. Can you give further details on which bodies will be excluded in relation to law enforcement functions, and which will not?

The bodies themselves are not going to be excluded (Dr Clark's answer was to the proposition that the law enforcement bodies would be excluded, not their functions); but the activity or the functions concerned probably will be. A number of departments have asked for exclusions for various regulatory functions - but these will normally be covered by existing statutory prohibitions. In that case, OPS took the view that an exclusion (as in paragraph 2.21 of the White Paper) was not needed: such functions would simply need to continue with their current statutory bar to disclosure. There might nonetheless be instances where particular difficulties had been caused in the past by a public body being prevented by law from disclosing information, and here removal of the statutory bar might be a step forward, even if the relevant information was not disclosable under FOI.

8.  Para. 2.22 says that FOI will not cover legal advice obtained by the Government from any source. Is it intended that this exclusion will not apply to other public authorities as well as central government departments?

The policy is to ensure that as much of the Bill as possible will apply to all bodies that are covered by it.

9.  The same paragraph says that FOI should not disadvantage the Government in litigation. Will the exemption for legal professional privilege not achieve this? Why is it necessary to exclude 'legal advice ... from any other source'?

The policy was to cover legal advice as securely as possible. The Cabinet Sub-Committee was clear that the Bill should be more open than the Code. But there were severe restrictions on access to legal advice under the Code too—the exemption for legal advice was not subject to harm and public interest tests. Another issue—which applied to the exclusions more generally—was that if there were not to be an opportunity for review the Committee decided that it was pointless to have an exemption that was so tight that it was really an exclusion—so it went for an exclusion. But then if there is not an opportunity for review of whether the exclusions are properly claimed there may be considerable scope for abuse by bodies holding a mixture of included and excluded information. It is likely that Ministers will need to decide whether the Information Commissioner should be able to take a view on whether the exclusion is properly claimed. Otherwise it may be argued that the exclusion is unacceptable.

10.  Will government departments and other public authorities be expected to make available indexes of the records they hold?

Filing records will be available under Freedom of Information; but the White Paper does not specifically propose that indexes should be created for the purpose of Freedom of Information. The right given in the Canadian system to access to the records themselves has meant a huge emphasis on listing.

11.  Will the Government expect to give guidance to authorities concerning what might be regarded as 'disproportionate cost'?

It is not yet clear, given the very wide proposed coverage of the Bill, whether guidance on disproportionate cost is likely to be helpful. For much the same reason, the terms may not be defined on the face of the Bill. On that basis, case law would determine what is regarded as "disproportionate cost" in the same way as effectively happens under the Code of Practice.

12.  HSE say in their memorandum to the Committee that they currently waive the £10 fee permitted under the Data Protection Act because accounting rules mean that it costs more than £10 to bring that amount to account. Do you know whether any other bodies have this difficulty?

Other bodies have also said in the consultation process that it will not be worth collecting the £10 fee. The £10 fee was settled on in order to match the fee in the Data Protection Act. If it acts as a deterrent, then some bodies may want to keep it, even if it doesn't cover the cost of collection. The important point, though, is that no one should pay more than £10 for access to their personal information.

13.  HSE estimate that the White Paper proposals will result in additional costs to them of £3.32m. This throws into doubt the Government's estimate of a total £10m cost p.a. across central government. Do you accept HSE's estimate of costs?

HSE have consistently given substantial estimates of its costs in dealing with FOI requests and these were taken into account in preparing the costs which appear in the FOI background material and which the Ministerial Committee considered. On this basis, it was recognised that HSE's estimated costs formed a significant proportion of the total estimate and the figures quoted are therefore potentially compatible. Costing FOI is not a precise science, not least because of the difficulty of separating out what is specifically a Freedom of Information request from ordinary contacts with members of the public. (The annual monitoring reports for the Code of Practice show the vast difference between the numbers of contacts with members of the public and the number that specifically mention the Code itself).

14.  Applications for information which it is intended to be published at a further date may be treated differently from others. Will there be a time limit to this—for example if it has not been published within two months?

It is unlikely that there will be a time limit. The White Paper says that some indication should be given of when publication is expected: that will provide requesters with a timescale so that they have an opportunity to come back to the authority concerned.

15.  How would a two-tier charging regime sit with the philosophy that FOI is 'purpose-blind'? Will you distinguish by the motive or the status of the requester? How will you deal with charities and pressure groups (many of which are incorporated); small (as opposed to large) companies; partnerships?

Responses to the consultation process have been mixed on the two-tier charging proposals. There is certainly a fair bit of support for it; but even some of its supporters acknowledge that it poses some very difficult problems—eg. how do you prevent abuse by corporate interests applying through individuals—for which no one had any very good solutions.

16.  How do you propose to define 'tradeable government information'? What controls will there be over charges for such information?

This is one of the most difficult issues. The overlap between most of the tradeable information and what is generally regarded as Freedom of Information material is not very great, but there is no clear means of distinguishing between them. The definition may be simply information on which Crown Copyright is asserted. This issue is being considered extensively as part of the Review of Crown Copyright.

Chapter 3

17.  The White Paper says that openness should be the guiding principle in the contractual arrangements of public authorities. Does this mean that contracts in which a public authority is one of the contracting parties will normally be made publicly available? If not, what sort of information on contracts is it proposed to make available?

The minimum aim is essentially the same level of disclosure as set out the Code and part four of the Guidance on the Code (paragraph 21-26), which distinguishes between the information which should normally be disclosed; and the information which the department should think seriously about disclosing if requested. The Code gives a clear structure here.

18.  What will be the position under FOI where a service is provided under contract by a private contractor, but the service provided is not a statutory service, eg, printing services?

The White Paper says that services provided under contract will be covered. The contractors as organisations themselves would not be directly covered. It will have to become accepted that the price of doing business with the public sector is that contracts will be subject to openness requirements. It is assumed there will be a standard form of words in tender invitations to deal with this.

19.  The Highways Agency say that premature disclosure of transport proposals could result in generalised blight, and cause financial harm to individuals. The Code of Practice contains a specific exemption where premature disclosure could cause physical or financial harm. Will the 'key specified interests' permit information to be withheld in such circumstances?

Probably, yes. A specific addition to an exemption (No.10) was put into the 2nd edition of the Code, after agreement that it would not be suitable for Exemption 2. Under the White Paper proposals there was no specific exemption (the one that mentions safety is intended for physical, not financial safety) but it was expected that it would come under the decision-making specified interest. As with any harm-tested approach to protection, it could be expected that the amount of harm caused by disclosure might diminish over time, although this was an area where the decision-taking process was very long-running.

20.  One of the factors to be taken into consideration concerning whether or not information should be disclosed on policy advice will be 'the extent to which the relevant records or information relate to decisions still under consideration, or publicly announced'. For how long is it expected that this consideration should continue to prevent disclosure?

The wording in this paragraph of the White Paper is supposed to indicate that once a major policy statement has been made, then the degree of protection for the information is reduced. This is a very difficult area, in which a rigid rule is impossible: on the one hand there are planning decisions; on the other, the peace process in Northern Ireland. If, though, the authority can prove that a decision has not yet been taken, then they have a point working in favour of withholding the information.

21.  The interest relating to 'the Decision-making and Policy Advice processes in government' is described in terms which relate to central government departments. Will it apply in the same way to all bodies covered by the Bill? or do you expect it to be interpreted in significantly different ways as it relates to different types of authority?

All authorities will be included under this exemption although some of its defining factors (eg. political impartiality of civil servants) clearly apply to some bodies rather than others.

22.  How is it proposed that 'analytical information' is to be distinguished from 'raw data and factual background information'?

The passage in the White Paper concerned was intended to indicate that although there is a simple harm test for policy advice, there will be a greater presumption that background material will be subject to disclosure although the analytical and policy information is tightly protected. There is a separate paragraph, 2.18, which makes a commitment to publish the facts and analysis behind a decision; it's essentially the same as the code commitment to publish as much explanatory material as possible, and the background paper on the FOI White Paper illustrates the type of thing envisaged. Part of the idea is to provide an incentive for Departments to pre-empt requests for background material by releasing it themselves, edited where necessary. As a result of publication, there should be fewer requests for information, and the department has more control over the process, while still being substantially open in its approach.

23.  Will the balancing test of the 'public interest' apply to all the exemptions?

Yes.

24.  How do you propose that the 'general purpose of the act' be defined, in order to indicate how the 'public interest' will be interpreted?

We assume it will be defined as it says in paragraph 1.2 of the White Paper. The public interest is to some extent defined in the Public Interest Disclosure Bill, so one way of defining it would be to say information should be disclosed if it is of a type that would be disclosed under the Public Interest Disclosure Bill. Complete certainty in defining the public interest is not possible, but it is important to try and attempt a definition. The Code does not define at all what it means by public interest or a public interest override.

25.  Why do you think there may be cases in which 'a decision taken under the FOI Act might force a disclosure resulting in a breach of the harm tests that prohibit disclosure under the Official Secrets Act'?

Protection mechanisms under FOI will be mainly based on the "substantial harm" test. Not all of the language in the Official Secrets Act is worded in terms that make clear that the damage tests are actually more severe than that proposed for FOI—international relations being a case in point. So the Government wanted the White Paper to flag up clearly the need to ensure that people should not be liable for prosecution for the unauthorised disclosure of material which had been lawfully released under FOI.

Chapter 4

26.  Does para. 4.10 mean that you intend to incorporate the rights to correct inaccurate information etc. which are contained in the Data Protection Act into the Freedom of Information Act?

Yes. The Data Protection Principles will be incorporated as necessary into the Freedom of Information Bill. The possibility of amending the Data Protection Bill for the purposes of Freedom of Information has not been ruled out. But the legal advice is that the scope for doing this is likely to be severely constrained by the Data Protection Directive. Also, any significant overlap between Data Protection and FOI is likely to be legally difficult and confusing to operate (the latter point is a concern shared by departments). On that basis, matters relating to personal information would be passed to the Data Protection Commissioner by the Information Commissioner. Where a complaint was made to the Information Commissioner concerning refusal of access to personal information, it is an option that it should be transferred to the Data Protection Commissioner to ensure consistency.

27.  The Data Protection Registrar and the Ombudsman have argued for institutional links to be established between all the complaints authorities - for example in a 'college', or a Commission. Would such a system be, in the Government's view, a suitable means of ensuring the close and effective cooperation to which you refer, in pars. 4.12 and 4.13? Would you like to comment on the suggestions made in the evidence to the Committee by the Ombudsman and the Data Protection Registrar?

There hasn't been any conclusion about this idea within government: but this a complex area where the Government would be interested to see any views that the Committee might wish to set out.

28.  The information which data controllers are required to give under the Data Protection Act includes 'a description of any recipient or recipients to whom the data controller intends or may wish to disclose the data'. (Clause 15(1)(e)). Will this provision prevent departments from disclosing information which has been collected from others, other than to those people whom the Department has described to the Registrar?

No. Part III of the Bill, which begins with Clause 15, is concerned with the Notification procedure. Part II of the Data Protection Bill and the FOI Bill will be discrete regimes for handling disclosure and Clause 15 does not address itself to those forms of disclosure. This interpretation seems to be borne out by the definition of "recipient" given at Clause 61 of the Data Protection Bill.

29.  Will most data subject requests fall under the Data Protection Act? Or will you expect any to go under the Freedom of Information Bill?

Yes, mostly under the Data Protection Bill, given the scope of the Directive.




30.  Will the definition of 'personal information' need to be held in common between the Data Protection Act and the Freedom of Information Act? Will there also need to be common definitions of the main exclusions and exemptions, to ensure continuity between the two access regimes?

If in practice there is little scope for a separate approach under Freedom of Information then a common approach to exclusions and exemptions would be helpful.

Chapter 5

31.  Paragraph 5.7 appears to indicate that the Government believes that the Ombudsman is not an 'independent office holder', and that his decisions are subject to some form of 'political override', perhaps through this Committee. Is this really the Government's view?

No. The wording of this paragraph reflects a clear Ministerial decision not to establish an Information Commissioner on a basis comparable to the Parliamentary Ombudsman, who has the power only to make recommendations, which are not legally enforceable and whose ultimate recourse is to Parliament in the event of a department's refusal to co-operate. The Chancellor of the Duchy has gone on the record in making clear that the Government is in no doubt whatever about the Parliamentary Ombudsman's complete independence, nor was the wording of the White Paper meant to suggest otherwise.

32.  Paragraph 5.14 says that the Government intends to create a new criminal office for the wilful or reckless destruction, alteration or withholding of records relevant to an investigation of the Information Commissioner. Do you expect such an offence to apply only where the Commissioner has decided to investigate? Should it not apply generally, as records may be destroyed to prevent an anticipated request or investigation?

Yes: it's only intended to apply where the Commissioner has decided to investigate. A large amount of information is routinely destroyed when reviewed after five years and that process should not be affected: if every record was kept in existence for many years against a possible request/investigation, it would impose an unmanageable storage and retrieval burden within government. In any case, shredding significant records to avoid embarrassment etc. would not only expose officials to possible disciplinary proceedings, but would be counter-productive in that the resulting gaps would make life more difficult for public servants. A more significant issue, in the OPS view, is the irresistible growth of IT for production of all records, with its associated problems of system failure, accidental erasure of records through inadequate IT knowledge, and machine readability in the longer term.

33.  As the Government has decided not to allow Ministers to override the disclosure powers of the appeals body, will that not leave the powers of Ministers to prevent disclosure by the Ombudsman anomalous? Will the Government repeal section 11 (3) of the Parliamentary Commissioner Act 1967?

34.  Cabinet documents are not, as such, to be excluded from the Freedom of Information Act; but they are excluded from the power of the Ombudsman to obtain evidence, under Section 8(4) of the Parliamentary Commissioner Act 1967. Do you intend to repeal, or amend this provision?

The Government is looking at these to see if they can be repealed.





Chapter 6

35.  Although the rules relating to access rights to historical records are to be incorporated into the Freedom of Information Act, the access provisions for current records will not be the same as those for historical records. Would not application of the harm test to historical records have the desired effect (reflecting the fact that their sensitivity has decreased due to passage of time) while making the system simpler?

The Government's view is that the system proposed in the White Paper will be simpler.

36.  The Public Records Acts apply to the records of central government, but the FOI Act's coverage will be much wider. What provisions cover records held by other public authorities? Will the provisions on records be made to apply to them?

There is no statutory requirement; but there is an issue here. On the one hand, it would clearly be undesirable to create a huge extension of bureaucratic "paper-keeping" in sectors which have little need for historical records. On the other hand, would FOI in the longer term expose a need for records maintenance in areas that currently have no statutory requirements for it?

Chapter 8

37.  How soon after Royal Assent would you expect the Bill to come into force?

This has not yet been decided. In some areas (particularly to do with personal information) it may be influenced by the Data Protection Act, some provisions of which don't come into force for up to 10 years; on the other hand, unlike the Data Protection Bill, Freedom of Information is a manifesto commitment, which is an important argument for early implementation.


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1998
Prepared 21 May 1998