Memorandum by Sir Michael Buckley, Parliamentary Commissioner for Administration (OM 6)
ACCESS TO OFFICIAL INFORMATION
BACKGROUND
1. The Code of Practice on Access to Official Information (the Code) came into effect in April 1994. The Code is non-statutory and covers the bodies within the jurisdiction of the Parliamentary Commissioner for Administration (the Ombudsman), which are listed in Schedule 2 to the Parliamentary Commissioner Act 1967. In essence the Code requires these bodies to release such information as they hold, both proactively and on request, unless that information is covered by one or more of the fifteen exemptions set out in Part II of the Code. These are listed in the annex to this memorandum[1].
2. My role is to investigate complaints referred to me by Members of Parliament that information that should have been provided under the Code has been withheld. Such complaints may be investigated only if the complainant's request was first subject to an initial refusal by the relevant body, and (usually) if that refusal was confirmed on review. When considering complaints, my Office will assess whether or not any exemptions quoted by the government department or other body have been correctly applied: if the exemption(s) have been correctly applied the refusal to release the information requested is justified under the Code; if not, it should be released.
3. Although the Freedom of Information Act 2000 is now on the statute book, the provisions regarding individual rights of access are not expected to come into effect until January 2005. This means that it seems likely that the Code will remain effective until that date; and that I (and my successor) will continue to investigate complaints under it.
THEMES FROM COMPLAINTS DURING 2001-02
4. During 2001-02 my Office aimed to complete investigations of complaints about refusal of access to official information within an average of 23 weeks after receiving sufficient information to enable a statement of complaint to be issued. During the year, a number of my Office's investigations were severely hampered by a lack of co-operation from government departments, which manifested itself in two main ways.
5. First, on a number of occasions departments did not identify a relevant exemption when refusing information or delayed in identifying relevant exemptions; in one or two cases the body complained about did not identify the exemption or exemptions on which it wished to rely until my staff had sent it the draft final investigation report for comment. I believe that it is good practice to inform the person making the request at the outset which exemption(s) of the Code a refusal to release that information is based on. In another case my staff had substantially to re-write an investigation report because the department had, at the last minute, identified a statutory prohibition that prevented the release of the information sought[2].
6. Second, some investigations were seriously delayed by the growing failure of departments to respond to requests from my Office either for information and papers or for comments on draft reports within a reasonable timescale. The main reason for these difficulties has doubtless been the fact that a number of the complaints considered over the past eighteen months have involved highly sensitive political issues. However, I remain concerned that these sensitivities continue to have an impact on complaints currently under investigation: we still encounter delays due to poor departmental response times and due to the protracted provision of relevant papers on these cases.
7. The Committee will take evidence related to two of the more serious examples of cases in which my staff encountered difficulties in obtaining the co-operation of the relevant government department.
ROBATHAN (A.28/01)
8. A full account of this case was published as "Access to Official Information: Declarations Made Under the Ministerial Code of Conduct" (HC 353). The complainant, Mr Andrew Robathan MP, had asked the Home Secretary on how many occasions Ministers in his department had made a declaration of interest to their colleagues under the Ministerial Code of Conduct and how often, under the same code, Ministers had sought the advice of the Permanent Secretary. The Home Secretary refused to provide this information, and quoted exemptions 2 and 12 of the Code when so doing. I found that neither of these exemptions applied, and invited the Home Office to release the information, which they have refused to do. This is the only occasion so far on which a department has refused to accept an Ombudsman's recommendation in relation to a complaint under the Code.
9. However, the Home Office's refusal to implement my recommendation is not the only aspect of this case that is a cause for concern. My Office sent its draft investigation report to the Home Office for their comments on its presentation and accuracy on 20 March 2001. During April and May the Home Office told my staff on several occasions that they were unable to reply because of the need to consult colleagues in other departments. I understand also that the Secretary of the Cabinet also wished to consult the Prime Minister before the Cabinet Office replied to the Home Office. Matters were then further delayed by the 2001 General Election. In the absence of further developments, I wrote to the Home Office in August 2001 to chase progress but did not receive a reply. I then wrote to the Secretary of the Cabinet on 26 September 2001, again without reply. Finally, a reply from the Home Office was received on 19 October 2001—some seven months after my Office had sent the draft investigation report to the department.
BEDFORD (A.33/01)
10. A full account of this case can be found in "Access to Official Information: Investigations Completed, February-April 2002" (HC 844). The complainant, a BBC journalist, asked the Home Office for information relating to a telephone conversation that had allegedly taken place between the Rt. Hon. Peter Mandelson MP (then a Minister in the Cabinet Office) and Mr Mike O'Brien MP (then a Minister in the Home Office). This alleged conversation was about an application for naturalisation as a British citizen by Mr Srichand Hinduja. The complainant also asked for the dates of all the letters written about the Hinduja brothers by Mr Keith Vaz MP since May 1997, and for the information contained in them. These matters had been covered by "The Review of the Circumstances Surrounding an Application for Naturalisation by Mr S P Hinduja in 1998" (the Hammond Inquiry: HC 287), the report of which was in the public domain by the time that my Office's investigation began. The Hammond Inquiry had found no evidence to confirm conclusively that such a telephone conversation had taken place; the information sought in relation to letters sent by Mr Vaz was considered by the Hammond Inquiry and was released as part of that report. My investigation considered whether the Home Office's refusal to release information related to the alleged telephone conversation (exemption 4(a) had been cited as grounds for refusal) was justified and the exemption correctly applied.
11. In May 2001, I wrote to the Home Office to ask them to provide all of the relevant papers so that my staff could conduct an investigation into the complaint. When the papers were examined by my staff in July 2001, they discovered that several key papers were missing from the files, and that no papers from Mr O'Brien's Private Office had been included. In August, I wrote to the Home Office to provide points of contact in both the Home Office and the Cabinet Office to arrange examination of both sets of Private Office papers by my staff. I received no reply to this letter. After efforts by my staff to elicit a response were unsuccessful, I wrote to the Secretary of the Cabinet on 26 September 2001 to ask for early progress on this and on another case in which my Office had encountered problems. As noted above (paragraph 9) I did not receive a reply to this letter. On 7 November 2001 I wrote to the Home Office to tell them that, as my Office had met with a lack of co-operation from the government departments concerned, I proposed to discontinue my investigation and to tell the referring Member the reasons why I had taken this course of action.
12. After further correspondence, I received replies from both the Permanent Secretary to the Home Office and the Secretary of the Cabinet. The Permanent Secretary said that, due to administrative error, papers I had referred to as not being present in departmental files were, in fact, held on "associated folders". These had not previously been shown to my staff. No explanation for this situation has been forthcoming.
13. The Secretary of the Cabinet said that he was writing, with the agreement of the Prime Minister, to say that the Cabinet Office were now content for my staff to inspect the papers made available to Sir Anthony Hammond for his Inquiry. These papers would include some further papers that Mr Mandelson had recently forwarded to them, and which had also been made available to Sir Anthony Hammond.
M S Buckley
Parliamentary Commissioner for Administration
July 2002
1 Ev not printed. Back
2 A.4/01 in "Access to Official Information: Investigations Completed, January-June 2001" (HC 160). Back
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