Select Committee on Public Administration Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1. May I welcome everyone here this afternoon? It is a particular pleasure to have this double act in front of us of the Ombudsman and the Information Commissioner as we are moving from the Code to the Act and therefore want to pursue what is going on on both fronts at the moment. Just for the benefit of people, we have as witnesses Michael Buckley, who is the Parliamentary Ombudsman, David Reynolds who is Director of Investigation in the Ombudsman's office, John Colmans, who is Investigation Manager. Then we have Elizabeth France, Information Commissioner and with her Nicholas Tyler who is her legal adviser. I understand that you do not want to say anything formally to start with, so it is down to us. May I question Michael Buckley first of all? You have now had several years' experience of dealing with Code cases. You have just recently issued your latest compendium of investigations on the Code. Can you tell us in general how it is going? Do you think departments have got their act together as far as life under the Code is concerned?

  (Mr Buckley) It is very hard to be categoric. One has to remember that we have seen relatively few cases. We probably receive about 40 to 45 complaints a year and we probably do formal investigations of about half. So necessarily what I say has to be rather impressionistic and without the very firmest of evidential bases. It is fair to say that our impression is that the larger departments are now starting to get their act together, but we still have difficulties with some of the more fringe bodies. If you look at the latest volume of completed investigations, there are eight cases there of which only two involve what one might term mainline departments: Benefits Agency—part of DSS—and the Department of the Environment, Transport and the Regions. The others are, if I can put this without sounding rude about them, peripheral departments. The larger departments are starting to get their act together. It is entirely impressionistic but we are experiencing rather less difficulty than we did at one stage in persuading departments to be more cooperative, less wooden, readier to use such devices as anonymisation of data where they said there was a problem of confidentiality. There has been some progress but that is not to suggest all is wonderful and the job is done: there is more to be done.

  2. In the introduction to your latest collection of cases you do point out that a good number of departments still do not cite the Code categories when they turn requests down. You say that there is no excuse for this. You also say that some departments come in late. Having found they cannot wriggle around some of the exemptions, they then come in at a late stage by citing other exemptions. You are finding these practices, are you not?
  (Mr Buckley) We have found those practices and we have reported on them. Departments have a balance to strike. We also criticise them if they start off by what we call pepperpotting, which is citing every exemption which might conceivably be relevant. They do have to strike a balance. Yes, it is not satisfactory when late in the day they come along citing new exemptions or sometimes we find they have discovered some new statutory problem or legal problem. It is a matter of taking any requests for information, which should all be considered under the Code, seriously and getting their act together at the start. Some of the better departments do have strong, well-informed central units which are dealing with the question of information and they can make sure that this consideration is given. Yes, technical mistakes are still being made which should not be made.

  3. May I bring Elizabeth France in and ask a general "How's it going?" question? As you are preparing to inherit all this what is your sense of how the preparations are going? Could you also tell us what your understanding is of implementation dates?
  (Mrs France) I can tell you what my understanding is, but you will understand that it is a matter for Ministers to announce the timetable and we do not have an announced timetable.

  4. We all recognise forms of words like that. Just tell us what is going on.
  (Mrs France) I understand from the Home Office that the working assumption is that the first bodies are likely to come on stream in the summer of 2002, but we are waiting for an announcement. This has to be understood to be simply the assumption on which we are working at the moment; we understand that papers are with Ministers at the moment recommending a timetable.

  5. What is your sense of general preparation?
  (Mrs France) It is early days for us because we have had to start only from 30 January when I became Information Commissioner. We now have to build up our team using the resources which have been made available to us. I have sufficient resources for what is now the current financial year, the 2001-02 financial year, to grow by about 35 staff in this first tranche to deal with FOI. That is aside from any growth for data protection or any other issues. We are beginning to build up that team now. We have put on our website a plan which we are going to keep updated of how we see implementation going and our focus at the moment is on concentrating on what is the completely new element for everybody but which has to be done right at the beginning and that is the establishment of publication schemes. We have to decide what is a publication scheme and we have to decide by what criteria we are going to judge them. That has to be done very early because it is one of the first requirements: when the first tranche of bodies are brought in we have to approve publication schemes for all of those. That is where our focus is at the minute.

  6. As we have both of you here and we are doing some scene setting, may I ask you this big question about whether in fact we are going to have more information or less as we move from Code to Act? We have had evidence from you in the past about this, looking ahead. Now, as we are almost there, tell us what you both now think about this?
  (Mr Buckley) It is very difficult to say. This is a purely personal view but I think that it may well vary as between the different sectors. My own view has always been that because of the political background against which I work, the fact that Ministers are not going to disagree with an Ombudsman's findings even if they are not legally binding because there is the Select Committee, I think that the attitude may not be that different under statutory regime. I do stress that is a personal view. It may be different for wider parts of the public sector which have not been used in any way to inquiries like mine and therefore, although for example local government does have its own statutory provisions regarding openness of public meetings and the like, there may be more adjustments to be made.
  (Mrs France) We have to look at this from two sides. We have to look at it from the point of view of those public authorities who will be brought in and the perception of the public as to whether this is a real right which is worth exercising. There is no doubt that the publicity around the development of FOI legislation has thrown a bit of a spotlight on the Code, certainly from the public's point of view. Also, we are now increasingly in a society which likes to know what its rights are and to exercise them. So you could say that we are introducing legislation where other things are changing at the same time, which are likely to give a focus to this additional right which was not there for the Code. I expect it to be well used. The other point is the one Michael Buckley made, the huge range of bodies which the FOI Act covers is very different. We have been looking at the fact that, for example, it will cover a GP practice or a small school, a local optician. These are people who are not used to this sort of request. When we get to the end of the rollout in 2005 we shall be looking, if all goes well, at a gradual cascading of a change in culture which may then have an iterative effect back up the chain again. It is an exciting change because of the range of bodies covered and because of the central focus that having one piece of legislation will give. The groundwork has been done for the central government departments by our having had the Code in place.

  7. What about the argument that in some respects the Act is more restrictive than the Code?
  (Mrs France) Perhaps you would like to suggest to me where that is because I am not aware, having looked at it now and looked at how we implement it, that it is going to be more restrictive.

  8. I am interested that you say that. That is your line: that there is nothing more restrictive about the Act than the Code.
  (Mrs France) The Bill changed considerably on its passage through Parliament.

  9. Do we not know it!
  (Mrs France) The significant changes which mean that there is flexibility relate clearly to the fact that in any qualified exemption there is an obligation to look at the public interest and for me to be able to substitute my judgement as to what my view of the interpretation of public interest would have been, which brings it then to the same position as the Ombudsman is in now, but with the benefit if necessary of taking enforcement action to follow that through which is not available to the Ombudsman. That is an area which was of concern. The other huge strength of the FOI Act which mirrors the Data Protection Act is the statutory duty placed upon me to promote good practice with an incredibly broad definition, identical in both statutes, as to what constitutes good practice.

  10. Let us just test this then with this recent case upon which you have reported, which is the case which came out of the International Development Select Committee around the Ilisu dam project. Perhaps I could just say for new readers that this turned on what the Committee believed was conflicting evidence which they had received in an inquiry on this from the DTI and the Export Credit Guarantee Department on the one hand and the Foreign Office on the other. The question being: had the Foreign Office given advice on human rights questions to the DTI in relation to this project? This thus became a spat between the Committee and the Foreign Office and the Minister for Europe. They came to you and said it did not add up and they needed to know whether in fact advice was given by the Foreign Office on this question or not. The Foreign Office came back to you and said no, exemption 2, internal discussion, you cannot have it. You took the view, on public interest grounds, that it should be out. In doing that though you were armed with a "harm" test. You had to assess whether in fact the frankness and candour of internal discussion was going to be damaged by this or not. Mrs France is not going to be armed, is she, with a "harm" test in this area? That will be the question: whether in fact it is going to be more difficult to get these things out in a case like this.
  (Mr Buckley) An admirable summary of the question, if I may say so, but it is not for me to answer really.
  (Mrs France) If that means I am to answer it, I think that the difficulty for me is that I cannot put myself in the position of the Ombudsman and pretend a case was put to me under the Act which was not. I can only say that you are right clearly that the legislation does not give a "harm" test. However, we are in an area of a qualified exemption which is not really substantially different from the position under the Code. We are in a position where I would be able to look at whether I considered that the public interest justified the disclosure. It is when we get to see these in practice and see whether my decisions are upheld by the Tribunal for example, should it come to that, how they interpret the public interest and how broadly I am able to do that under this Act. As you know, I argued when the Bill was going through for a "purpose" clause. We have not quite got a "purpose" clause, but we now do have clear statements as to the objectives of this legislation which are to achieve open and accountable public authorities and with that in mind it seems to me the interpretation of the public interest is one which allows the Commissioner a fair degree of scope. It remains to be seen when we get actual cases to decide, whether we are able to achieve greater openness than has been possible under the Code, or at least to make sure that we do not take a step backwards.

  11. You have no reason to think that a robust application of the public interest test by you is going to lead to more restrictive outcomes than a Code monitor armed with a "harm" test.
  (Mrs France) I really think that this will only become clear looking at real cases and seeing which decisions are not challenged. We would hope there would be few challenges. As the Ombudsman has said, it is unusual for him to be challenged when he makes a recommendation. I would hope that in spite of the fact that I have enforcement powers I could use I shall be in a similar position, certainly when dealing with central government. On the other hand, having said that, it could be useful to have a Tribunal determination on the interpretation of the public interest and there is the possibility clearly of having that should there be a challenge to any decision I might make. It is an area where we are going to have to learn as we go along, but it seems to me quite possible within the scope of the legislation to look at these things in a way which allows us to take robust decisions and to see whether, should it come to it, the Tribunal shares the interpretation.

  12. Do you think that the history of thinking and action on these things that has come through the Ombudsman system, developing ideas of what a public interest might be in these areas, is a tradition which is going to be continued into your office? Is that a set of precedents upon which you are going to draw or do you see yourself as starting de novo on this?
  (Mrs France) It is a set of precedents, though one where you have to be careful because obviously the framework is not exactly the same. We would certainly look to the Ombudsman's interpretation of the public interest and we would look elsewhere, to the Attorney General for example, to see how public interest has been interpreted. Indeed I have asked my legal team to have a look at interpretation of public interest. Of course we now have the Human Rights Act as well to add to our consideration of how this should be interpreted.

  13. Had this particular issue about the Ilisu dam not come to you from a Select Committee, but had it come to you from a member of the public, who had said he did not think the evidence stacked up, would your response have been just the same?
  (Mr Buckley) Indeed so; in fact I was in the position of having to treat Mr Wells, who was the complainant, as a member of the public because that is what the Act says. We had to go through some rather tricky procedural manoeuvres to stay within the four corners of the Act. I did not approach the issue in any different way because the complainant was a Member of Parliament. As far as I am concerned, my task is to police the Code and the Code is an objective document.

  14. On this particular case, because you did not get or indeed ask for the publication of the internal documents themselves, only for an account of what they said bearing upon the issue, the judgement of the Committee on the basis of your report was that what they had said was true: that is that proper advice had not been given by the Foreign Office on the human rights issues involved in this case. Is that your conclusion from looking at the evidence?
  (Mr Buckley) My conclusions are set out in the report and I have to say that what I have written I have written. There were some points where I upheld the Foreign Office view. For example, there is a small group of papers which were covered by exemption 1(b) and I agreed with the Foreign Office view that those should not be disclosed. As regards the remaining papers, I thought that the Foreign Office had a reasonable point in saying that disclosure of the full texts would have been prejudicial to the frankness of exchanges, but it seemed to me right that their substance should be put into the public domain. The Foreign Office accepted the summary of the correspondence which was annexed to my report as accurate. I do not think it is for me to then pronounce on whatever inferences anyone, Select Committees or otherwise, may choose to draw from what I said. My investigations are setting out the facts. I found that the Foreign Office in my view should go further than they had under the Code and having done that my job is done.

  15. You would not dissent from the Committee's observations on your report?
  (Mr Buckley) I would neither confirm nor deny.

Mr White

  16. Before I start I should perhaps declare that I am a member of the Information Commissioner's advisory panel, just so the Committee are aware of that. Talking about public interest, is that not going to be one of the key parts of the publication schemes? If that is your first task, your view of that whole question of the "harm" test or what is in the public interest is going to be critical in the publication schemes, is it not?
  (Mrs France) Yes, within the publication schemes we shall be encouraging people to be clearly as open as they can be in what they put in there. Once things are in the publication scheme, then they are obliged to stick to what is in the scheme and published. There is no public interest override in relation to what goes into a publication scheme, but what we are trying to do with the publication schemes really is gradually try to use them to change the culture so that things become more open and there is more out there and therefore fewer things which have to be requested on a case by case basis.

  17. Would you agree that to get them to address the whole question of public interest when they consider a publication scheme is going to be crucial to whether it succeeds or not?
  (Mrs France) Yes, because when they are looking at publication schemes, they should be looking at being as open as is possible in the public interest. It is a little bit different from looking at a case by case justification for overriding a qualified exemption. When you are looking at publication schemes, you are looking for as broad a base as possible, as much information as possible actually published so that it is exempt then from an individual FOI request, but is already available to members of the public.

  18. One of the great fears when we were looking at the Bill—and as you said it changed as it went through Parliament—was the whole question of factual information in the exempt category. Have you looked at that in the work you have done so far?
  (Mrs France) No, we have not looked in detail at how the individual exemptions are going to work yet. Our focus is very much at the moment on the front end of the process but we shall obviously be developing guidance as we go through the transition period.

  19. You said that there were four aims you would seek to achieve in setting up the office, one of which was looking at publication schemes. How are you getting on with the other ones, generic schemes, your own scheme and the criteria by which you judge publication schemes?
  (Mrs France) We have a piece of work being done for us at the moment by University College London, which we have given them to do, to look at possible methodologies for publication schemes. We started work on our own draft publication scheme and we intend to bring these together in an open consultation exercise which we hope will run from July to September this year. At the same time as that consultation exercise is running, we intend to run some pilot schemes to test out what is in the consultation paper with a range of the bodies we expect to be in the first wave. We expect bodies covered by the Code to be in the first wave. We hope to finish those also in that three-month period so that we can write some authoritative advice by the turn of the calendar year for those who have to produce publication schemes for me by, let us say, the summer of 2002.

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