Examination of Witnesses (Questions 60
- 67)
WEDNESDAY 25 APRIL 2001
MR MICHAEL
BUCKLEY, MR
DAVID REYNOLDS,
MR JOHN
COLMANS, MRS
ELIZABETH FRANCE
AND MR
NICHOLAS TYLER
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 rightsand 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 earlythen
clearly there will be some people who make a businessif
that is what you meanof 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.
Chairman
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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