Select Committee on Public Administration Minutes of Evidence

Examination of Witnesses (Questions 40 - 59)



  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.


  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.


  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.


  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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