Examination of Witnesses (Questions 1
- 19)
WEDNESDAY 25 APRIL 2001
MR MICHAEL
BUCKLEY, MR
DAVID REYNOLDS,
MR JOHN
COLMANS, MRS
ELIZABETH FRANCE
AND MR
NICHOLAS TYLER
Chairman
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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