Select Committee on Public Administration Minutes of Evidence

Examination of Witnesses (Questions 60 - 67)



Mr Lammy

  60. Do you see any evidence in the cases which are coming to you of a cultural change, that, for example, people are seeking information for political purposes or campaigning purposes?
  (Mr Buckley) We have detected no substantial change. Ever since the Code came into effect and complaints started to come to my office, there have always been some among those complaints which have been by pressure groups who obviously have some political interest. I do not think that there is any tendency we have detected for those complaints to become proportionally more important. They are still there, but much the same as before.
  (Mr Reynolds) It is a mix really. As our latest report shows, there are several cases there from some groups who have a particular interest in a subject and others where there are individuals who have a particular problem they want addressed as private citizens. I do not think the balance has really changed.

Mr Turner

  61. A couple of tidying up questions and you have probably touched on this. It is about the actual culture within government. Do you think there is still a culture of "shan't tell" rather than "should tell"? "Shan't tell and how can I make sure that I can make that stick", rather than "I should tell this but are there any reasons why I shouldn't?". Do you think that culture is gradually changing because of the FOI?
  (Mr Buckley) It is very hard to say. I have no doubt that there are some parts of Whitehall, government departments and other bodies, which still have the attitude that someone needs to produce a good reason for them to disclose information rather than that they should be under the obligation to produce a good reason to withhold it. It is hard to say whether that culture is systematically changing because candidly we investigate too few cases to make that sort of statement on firm grounds. Maybe, being a little optimistic, we have detected some shift inasmuch as people are rather more willing to fall in with suggestions from us saying they could meet the request by doing this, by anonymising or by taking some things out and revealing the rest. It would be dangerous for me to offer categorical conclusions. I really do not have sufficient evidence to say that.

  62. Do you think that the Act is an "Anorak's Charter"?
  (Mrs France) The FOI Act?

  63. Yes.
  (Mrs France) I certainly had not thought of it in those terms because it is very unlike, in anorak terms, the things I deal with on the data protection side. It seems to me that in fact if we get our education of the public right about the way they can use their rights—and we are not going to start to do that until the public authorities actually have the responsibilities to respond otherwise we shall raise an expectation too early—then clearly there will be some people who make a business—if that is what you mean—of asking questions. It is going to be difficult and actually inappropriate to try to monitor that too closely. It goes back to: what is this about? If we believe that the right to know is an important right, then it is a right which can be exercised by anybody for any purpose and we really should not be concerning ourselves about who uses it and how they use it. I should be very concerned about any pressure on me to monitor who is asking the questions in more than broad categories for that very reason. One of the other points I should perhaps make, which is something that is only just really having its full impact on my thinking, is the fact that everybody who makes an application can appeal against my decision. Under the Data Protection Act only the data controller can appeal. That fact may mean that we do have some Tribunal decisions which will have an iterative effect on public authorities. While I might support their decision, they are still going to have to justify that possibly in a hearing, if the individual chooses to appeal my decision to support the public authority. I am hoping that all of these things will encourage openness, where there is an area of discretion, and perhaps one which goes beyond what I could reasonably enforce. Public authorities will perhaps begin to think that actually they can disclose information although they are not obliged to, and the culture will then gradually change.


  64. Anoraks are very useful things, are they not? May I finish off with a couple of final things? Mrs France, in an earlier answer, when there was discussion about you versus the Code and how effective you were respectively, you said that you were minded to wait to see what the Tribunal said about some of these things. May I ask you to say a little more about that? Does that mean that you are going to be rather tentative in coming to views on public interest until you have some guidance from the Tribunal?
  (Mrs France) No; on the contrary. Perhaps one of the criticisms of the way we have used the data protection regime is that we have sought to achieve compliance by conciliation. While I think that is the right way forward, it does mean that there is very little jurisprudence because we have actually very rarely taken cases before the Tribunal. We have achieved huge changes in compliance with data protection law, but we have done it by talking to people. That is still the right approach and the approach I would expect to take. What I am actually saying is that in cases where there is a doubt, the fact that there is a Tribunal there should mean that one can be more robust on the basis that there is somebody else who can reconsider the decision and that we can have an opportunity, for all of our benefits perhaps, to have some open discussion before the Tribunal on some of the more difficult areas of interpretation.

  65. It is very useful to have that on the record. You mentioned the executive override. We have talked about this a lot over the period of this Bill, now Act. Are you better able to understand now, given the existence of the Tribunal and the whole system we are going to have in place, why anybody has thought this override is required?
  (Mrs France) I simply now have to apply the law as it stands and wait to see how that override is used. The override can be used in two different points in the process. It can be used either after I have taken a decision, or after the Tribunal have taken a decision. I have to say that it is the second one I find more difficult to understand or see precedent for, but it is there in the law. We need to see now how it is used. The valuable thing from Parliament's point of view is that the certificate has to be laid before Parliament and that it gives an opportunity for scrutiny at that stage. The way it has been set up is sufficient to discourage it being used lightly and we have to wait and see whether it is used at all.

  66. Can you really imagine a Minister pressing the override button, having had a Tribunal decision going in the opposite direction?
  (Mrs France) It would be a very difficult thing for a Minister to do, but clearly, having put the provision there, it is something which has been contemplated. It is going to be interesting to try to envisage the situation which has gone so far down the track before such a decision is taken. We shall have to wait and see. I cannot envisage circumstances at the moment. I know, as I am sure this Committee does, that in other countries where overrides exist, they have not been overused, although there was some initial overuse until an amendment in the law in New Zealand.

  67. There is a lot of discussion currently about Government spending on advertising. One of the criticisms of the Code always was that people knew little about it and therefore did not access it very much. We would expect, would we not, there to be some quite substantial advertising going on around the introduction of the Act. Can you give us some information about this?
  (Mrs France) Yes, but not until individual rights come on stream. It would actually be misspent money if it were spent now because we would be raising people's expectations about a right that they will not have until, let us say, summer 2002 and then only in relation to Code bodies. I shall be including in my budget bids proposals for advertising campaigns which come on stream as individual rights come into place. It is a statutory responsibility which I have under both Acts to raise public awareness. On data protection we do not have vast amounts of money, but we did run a television advertising campaign last year and we do have more long-term things already in place on data protection such as material for school curricula and other ways of beginning to educate people about their rights, which we would obviously expand to cover FOI as well as data protection. I would expect most of the advertising of those rights to come from my Office and to come on stream at the same time as the individual rights. There will not be huge sums of money available. I hope though to make best use of them in terms of raising awareness.

  Chairman: Thank you very much for that. We have had a very good session. You are a double act, but you are also a class double act, if I may say so and one which through popular demand we shall want a repeat performance of at some point in the not too distant future. Thank you very much indeed to you and your colleagues for coming along and giving evidence to us today.

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