Examination of Witnesses (Questions 40
- 59)
WEDNESDAY 25 APRIL 2001
MR MICHAEL
BUCKLEY, MR
DAVID REYNOLDS,
MR JOHN
COLMANS, MRS
ELIZABETH FRANCE
AND MR
NICHOLAS TYLER
40. That member of the public was also a Member
of Parliament.
(Mr Buckley) Indeed.
41. I am seeking information. Were there issues
of parliamentary privilege which you had to give consideration
to in examining that case?
(Mr Buckley) No. I did not find that necessary. Apart
from anything else I was just looking at departmental papers.
As I understand it there was a difference of view between the
Select Committee on International Development and the Foreign
Office regarding the whole question of access by Select Committees
on a confidential basis to papers and so on, but that was not
a matter which I needed to look at in my investigation. My investigation
was solely concerned with the departmental papers and the application
to them of the Code.
42. Mrs France, do you feel that under the terms
of the Act now there are aspects of that investigation which,
if they were being dealt with by you, would give you greater powers
to act in a way over and above what Mr Buckley was able to do?
(Mrs France) It is very difficult when we are talking
about a case which has been decided under the Code. I cannot think
that to reach the point that the Ombudsman has reached I would
have had any greater powers. I can only say that had he had difficulty,
which he did not have, in persuading the Foreign Office to adhere
to his recommendation, then the Act, at least in theory, would
give me the power to take enforcement action. Of course I should
then perhaps point out that it is an area where there would be
what in shorthand we call the possibility of ministerial override.
That is something again which this Committee will doubtless want
to take an interest in, should that be used by Ministers.
43. The other issue which interested me was
that the Chairman introduced you as a double act at the beginning
of the proceedings. Could you just explain to us, when everything
is up and running with you, Mrs France, to what extent and in
what ways you will continue to be a double act and to what extent
powers currently with Mr Buckley will transfer wholly to you and
your department?
(Mrs France) On 30 November 2005, when the Act is
fully in place, then the Information Commissioner shall have full
responsibility for access requests under the Act and for administering
the FOI Act. It is likely to be before that that the Code bodies
are all operating under the Act and the agreement we have is that
it will be a clean break, that the Ombudsman will complete any
cases he is considering under the Code, but that we shall look
at applications made under the Act. Having said that, there will
continue to be an interface, as there must be between regulators
of all sorts. I do not only have an interface with the Ombudsman,
I have interfaces with the utilities regulators, with other bodies
with whom inevitably there are areas of common interest or grey
areas. There will be cases which, although to begin with are requests
for information, are actually preparatory to an allegation of
maladministration. Or there may be cases which come to the Ombudsman
first where the first hurdle is to get the information but actually
the complainant is making clear that what they are concerned about
is an allegation of maladministration. We are fairly comfortable
that we can cope with that interface.
(Mr Buckley) Once the Information Commissioner formally
has jurisdiction over anybody who is within my jurisdiction, then
I will not be able to investigate under the Act because there
will be an alternative remedy. There will be some cases where
there is an interface; there may be hybrid cases. We find quite
a lot of hybrid cases in which the basic complaint is a conventional,
classical one of maladministration, but there is an information
component. If that is easily detachable, it will be for the Information
Commissioner and her office to deal with it. If it is so closely
bound up that it would not be reasonable to try to detach it and
put the complainant to trouble, then we shall work together. I
should say that failure to conform with the requirements of the
Freedom of Information Act is in itself a species of maladministration
because it is not carrying out what the law requires. As you know,
we both of us at the time when the Bill was being drafted pressed
strongly to have powers to exchange information so that we could
avoid this, so we would not have to face complainants with the
awful prospect of making two separate complaints simply because
we were working in watertight compartments.
Chairman
44. Just so I am clear, if you are doing one
of your regular investigations, and you stumble across an "openness"
dimension—and you have told us that you think this is maladministrative
anyway—do you still pursue that, or do you say "Hang
on a minute. This is now FOI. I must send it down the line to
Wilmslow"?
(Mr Buckley) It will depend on the case. I am not
trying to flannel. It depends very much. Where there is a relatively
small aspect, particularly where there is no question of enforcement,
it will be sensible for us to complete the investigation, consulting
the Information Commissioner and her staff as appropriate. In
other circumstances it may turn out on investigation that this
is really the nub of the complaint. In those circumstances we
may want to say to the complainant and referring Member that this
is a matter which would be better handled by the Information Commissioner.
Basically what we shall try to do between us is work out satisfactory
arrangements, just as we have with the Information Commissioner
in her capacity as Data Protection Commissioner. I hope that with
common sense we can avoid getting ourselves and complainants into
jurisdictional tangles.
(Mrs France) It is perhaps worth making the point
that it is not really a new issue brought with FOI. I am sure
there are many occasions when the Ombudsman is looking at cases
where an element of it will have been satisfying a data subject
access request under the Data Protection Act, but it will only
have been an element of the allegation. In that case, particularly
if it is resolved, we do not need to have it referred to us.
Mr Trend
45. When Mr Buckley gave his explanation a little
earlier about how you interpreted the different functions of your
offices, I noticed that Mrs France smiled. When Mr Buckley gave
evidence earlier to the Committee he said, "It is my view
that `hybrid' complaints should continue to be dealt with by my
office". Then he said, "Mrs France ... shares my view
that whatever arrangements are devised should be as simple and
convenient for complainants as possible", which is not quite
the same as agreeing with his basic position.
(Mrs France) We have a common objective, as indeed
we should have in the positions we hold, to make sure that citizens
can exercise their rights as simply as possible and that must
be the start and the finish in a sense of what we are trying to
do. We do not want to play games about where our jurisdictional
boundaries are simply for the sake of it. Where Parliament has
given one of us powers to deal with something and it clearly would
be more appropriate for us to do it, then that would be the case.
It rather depends what we mean by a hybrid case. So long as we
are clear that it is an element which does not require the enforcement
powers only available to the other one of us, then it seems reasonable
to take a common sense approach to handling the complaint made.
46. While Mrs France was speaking Mr Buckley
was smiling.
(Mrs France) It is a double act.
47. Only the future will tell.
(Mr Buckley) It was contentment.
48. May I come back to the question of the dam?
Would it have been different if this had been a Select Committee
matter rather than an individual? Can you simply not take a complaint
from a Select Committee?
(Mr Buckley) The law is clear: it must be a complaint
from a member of the public. If the Select Committee as a collective,
as an institutional body, as part of the House of Commons, wished
to take the case up then it would have to do so directly. That
would not be a matter within my jurisdiction. Formally I had to
regard Mr Wells as a member of the public and he had to enlist
the services of another member in order to refer the complaint
to me. I must not go on or I shall start my diatribe against the
1967 Act.
(Mrs France) It is interesting talking here to realise
that I do have a wider remit in this respect because the FOI Act
talks about persons, not members of the public, and persons includes
bodies. Whether a Select Committee would count I am not quite
sure.
Chairman
49. When are you going to be sure about this?
(Mrs France) When I have an application.
50. That is very interesting. Let us hang onto
this. So it is not at all beyond your remit as you understand
it for Select Committees to come knocking on your door?
(Mrs France) The example given when the Bill was going
through Parliament by somebody—and I forget who—was
that Mickey Mouse could make a request under the FOI Act. All
that is needed is a name and an address. I really do not think
that I have the restrictions of definition that the Parliamentary
Commissioner's Act has.
Chairman: I can see a good trade building up
here.
Mr Trend
51. Has it happened before, that somebody as
it were impersonated a parliamentary committee in bringing something
to you?
(Mr Buckley) I cannot readily think of a case in which
a complaint has been referred by one Member of the House on behalf
of another. It may well have happened in the past because Members
of the House do have their civil rights and they may have problems
with the Benefits Agency or whatever which they would wish to
have taken up. It is not at all common in our experience.
(Mr Reynolds) We have had one but not another case
involving a committee or chairman of a committee.
(Mrs France) There the FOI Act is quite clear that
it is applicant blind. Everybody has a right to whatever information
is available. I do think it is a case where there is a broader
definition of who can be an applicant.
Mr Trend
52. Can you give us some help on how you define
public interest?
(Mr Buckley) I and my predecessors in my office have
been really rather reluctant to define public interest just as
we have successfully avoided defining maladministration for over
30 years. There are several considerations which are relevant
and which indeed are more than hinted at in the Code itself. It
says things like the aim of the Code is to improve policymaking
in the democratic process by extending access to the facts and
to protect the interests of individuals and companies by ensuring
that reasons are given for administrative decisions. Those are
very relevant. The basic proposition from which the Code starts
and which we of course accept is that information should be disclosed
unless there is a good reason to withhold it. One starts with
the proposition that it is in the public interest to disclose.
We would add to that questions like the desirability of public
bodies showing that they are using the taxpayers' money wisely.
We have had cases in the past where we have tried hard to strike
a balance between the perfectly legitimate commercial interest,
which of course is a matter of safeguarding public funds and not
disclosing a public body's negotiating position while getting
a reasonable amount of information disclosed so that Parliament
and the public could see what the position was. There is another
public interest which was relevant in the Ilisu dam case. If information
is disclosed it should be disclosed in full. One of the potential
mischiefs in information is the wish to use information selectively,
to disclose what suits one's own point but not to disclose the
full story. That is another thing. There are several considerations
which have come up. We have certainly never tried and I should
not wish to try for an exhaustive definition of public interest.
53. In the course of your investigations you
were told by the Minister of State that correspondence between
government departments was not normally disclosed and he saw no
need to depart from that practice. How far have you tested that?
How much is that just law which you accept and how much in this
and other cases do you probe to see?
(Mr Buckley) The Code does itself contain an explicit
exemption for internal discussion and internal advice, recommendations,
consultation and deliberation and confidential communications
between departments, public bodies and regulatory bodies. I have
said more than once that I accept that it is reasonable for government
departments and other bodies within the Code so to speak to have
the ability to exchange their thoughts in private without constantly
thinking that everything they say may be brought into the light
of day. There is the exemption in the Code but of course it is
then necessary to bring in precisely the balance of public interest.
Another reason why one cannot define public interest is that things
change. For example, once the decision has been taken the arguments
for disclosing the basis on which the decision was taken become
all the stronger. This is not a novel proposition. It is not outside
the Code. The danger is that it is tempting for departments to
say it is internal communication therefore it cannot be disclosed.
We still occasionally get that wonderful thing, "Oh, this
was prepared for internal use, therefore it cannot be revealed".
There is still too much of a kneejerk reaction, "It was an
exchange between departments therefore it cannot be released".
54. A mischievous office could just make everything
internal correspondence and think there was a blanket prohibition
on it appearing in print.
(Mr Buckley) Indeed so; it would be perfectly legitimate
if it were internal opinion and advice and recommendations. Then
they are right that the exemption applies, as I quoted from it.
But, you then ask whether disclosure would harm the frankness
and candour of internal discussion and even if it would, whether
the balance of public interest in disclosing that information,
not necessarily word for word as we saw in the Ilisu dam case
but the substance, would still favour disclosure.
Chairman
55. Just so we do not lose this particular point
because what you are saying is quite interesting, if the request
had simply come to you to have information about what the Foreign
Office had been saying about these human rights questions, not
in the context of a conflict of evidence to a Select Committee
between DTI and the Foreign Office, but simply because the Select
Committee came to you and said that they were supposed to be able
to send for persons and papers—in fact that is a fiction;
we cannot—but they would like to see in practice what is
being said by a government department on an issue, if they just
come to you straight like that, not because of this issue of conflict
and the falling out and all that, would your response have been
different?
(Mr Buckley) I think not. It is perfectly legitimate,
being pedantic, for a member of the public, someone within the
Act, to come along and say they want information. It is a type
of information. The Code, as we all know, does not carry any right
to documents, so if our hypothetical complainant through his or
her MP said that they wanted to see the documents, we have to
say no, they may only be entitled to the information which is
in those documents. Yes, if they say they would like to know information
about what a particular department was saying on a particular
subject, then that is a matter which would be investigable under
the Code.
Chairman: A very interesting answer, if I may
say so.
Mr White
56. Has the Human Rights Act changed the way
that departments approach that issue?
(Mr Buckley) The short answer to that is no. The Act
has only been in force for a relatively short period of time.
Generalising, I do not myself believe that the Human Rights Act
is going to have a huge effect on the work of my office. We like
to think that we are already applying standards of decency and
proportionality and so on and so forth and if someone wants a
legally binding declaration, then of course that is something
for the courts rather than for my office.
Mr Trend
57. Our sister Select Committee was concerned
that exemption 2 was being used more frequently, that Government
were taking refuge in this area. Is there any quantification of
this? Have you done any work as to whether this is the case or
not?
(Mr Buckley) No, I do not think we have statistics
on which exemptions are pleaded. My impression—and it can
only be an impression—is that there is no greater recourse
to exemption 2 than to others, in fact many cases would involve
some of the later ones, for example exemptions 13 and 14 about
commercial and confidential information, information supplied
in confidence.
58. May I ask Mrs France about the Knowledge
Network of which she has some experience? We have asked questions
about this in the past and there is a concern—not shared
by all members of the Committee—about the potential party
political aspects of this system. You said that it is a way of
getting speeches by Ministers into the public domain and I am
sure the public is queuing up to read these speeches on the internet.
It is also a means of disseminating information on a constituency
basis to Members of Parliament who—an example we have had
recently—know the right questions to ask, indeed if they
wish to ask the questions. It may be a startling coincidence that
supporters of the Government have recently all been asking the
same question about statistics for their constituency. There is
possibly the possibility of political mischief here and also at
the time of the General Election as to who has access to different
levels of information that the Government holds. I just wondered
whether Mrs France had given this matter any thought, not about
the data issues of the Knowledge Network but about the way in
which it can be accessed and the way in which it is developed.
(Mrs France) I have not because under my current responsibilities
my interest in it or any developments of these kinds have been
limited to my application of the Data Protection Act and the sorts
of issues there. However, I understand what you are saying, but
I think what we would want to be saying to those responsible for
populating the database, making things available through it, is
that if one person asks a question—and this is something
we have said in informal advice we and the Home Office have so
far been giving—which seems to have a general application
and you can make it available to that person, then you should
make it generally available. If you are saying that there are
in some ways hurdles which have to be jumped before you can find
your way through the information which is available, then that
might be something which needed to be looked at, but it is difficult
to see the problem which might be seen to arise under the legislation
if information is being made available.
59. The Knowledge Network seems like a very
straightforward system but very often with knowledge it depends
on knowing what bit of knowledge you want and whether the system
can produce it and there is privileged access to questions as
well as answers.
(Mrs France) Perhaps I could generalise from the Knowledge
Network to our concerns on publication schemes where we are concerned
to ensure that those do not obfuscate rather than offer clarity
to the citizen. It is no good if you say it is all out there,
but there is so much out there that nobody can find their way
through to the information they actually want. Although we have
said publication schemes are a good way of making sure that you
do not have to wait while your individual request is dealt with
and should be a positive thing for the public servant who then
does not have to deal with the individual request, we will be
anxious to make sure that publication schemes are easily navigable
and that people can actually find their way to the information
they want. To generalise from your point about a specific system,
the sort of good practice advice we shall begin to develop will
certainly be designed to make sure that it is made easy not difficult
for anybody to find the information they want.
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