|Further memorandum submitted by the Foreign
and Commonwealth Office
Letter to the Permanent Under Secretary
of State, Foreign and Commonwealth Office from the Chairman of
the Committee, 16 July 2003
The Committee was concerned to read the attached
article in The Guardian on Monday 7 July[9],
concerning a report by the Parliamentary Commissioner for Administration
criticising the Office for a "Refusal to release details
of individuals seconded to the Foreign and Commonwealth Office
from private companies". (Annex A)
I would be most grateful if you could set out
the details of the matter in a memorandum to the Committee, explaining
what happened, why the systems guaranteeing freedom of information
apparently broke down and what steps you have taken to prevent
a repeat of this incident in the future.
I look forward to your reply in the near future.
Chairman of the Committee
July 2003
Letter to the Chairman of the Committee
from the Permanent Under Secretary of State, Foreign and Commonwealth
Office, 23 July 2003
Thank you for your letter of 16 July asking
for more details of the case reported in The Guardian on
7 July about an Ombudsman's report on FCO handling of a request
for information under the Code of Practice on Access to Government
Information.
The facts of the matter are set out in the enclosed
Ombudsman's report, from which you will see that the position
is not entirely as The Guardian reported it. In particular
the report did not find the FCO "guilty of maladministration",
although it did fairly criticise the FCO's handling of the case
in respect of time taken to deal with the request, identification
of the wrong exemption and initial shortfall of information provided.
Remedial action taken by the FCO was welcomed by the Ombudsman
as a satisfactory outcome to a justified complaint.
As the Ombudsman's report acknowledges (paragraph
30), the request for information on individuals seconded to the
FCO was both complex and resource intensive to handle. The FCO
has now disclosed most of the information sought by the applicant
and the Ombudsman has upheld the FCO's position that the Data
Protection Act prevents further disclosure without the consent
of the individuals concerned. The FCO has actively sought this
consent and where we have it, we have released information to
the applicant.
In order to release information on secondees
more efficiently in future, the FCO now seeks consent to disclosure
of information about individuals and organisations at the outset
of a secondment. This move was welcomed by the Ombudsman who recommended
that the applicant in the present case was given a copy of the
new standard letter (paragraph 24). This has been done.
As a result of this case, all FCO staff were
reminded of the importance of meeting Code deadlines and of the
wider requirements of the Code (paragraph 31 of report). I enclose
a copy of the Office circular and a new leaflet which we are about
to issue as part of an ongoing campaign to raise awareness of
obligations and commitments for greater transparency in the run
up to full implementation of the Freedom of Information Act in
2005.
Sir Michael Jay KCMG,
Permanent Under Secretary of State,
Foreign and Commonwealth Office
July 2003
Annex A
REPORT BY
THE PARLIAMENTARY
COMMISSIONER FOR
ADMINISTRATION (THE
OMBUDSMAN)
1. Mr Evans complained that the Foreign
and Commonwealth Office (FCO) refused to supply him with information
that should have been made available to him under the Code of
Practice on Access to Government Information (the Code). He further
complained about the delays in responding to his requests for
information. I have not put into this report every detail investigated
by the Ombudsman's staff but I am satisfied that no matter of
significance has been overlooked.
The complaint
2. On 11 December 2001 Mr Evans wrote to
FCO and requested, under the Code, a list of staff who had been
seconded to FCO by outside organisations and private companies
since 1 January 1999. In each case he wanted to know; the name
of the secondee; the name of the organisation from which they
were seconded; the directorate or division of FCO within which
the secondee was placed; a brief description of the responsibilities
of each of the secondees; and the date on which each secondee
started and ended their secondment. He asked for the information
to be provided within the 20 working days required by the Code.
3. FCO acknowledged receipt of the request
on 18 December and, in response to an e-mail from Mr Evans they
said, on 6 February 2002, that they hoped to be able to reply
soon. On 27 February Mr Evans asked for an indication of when
his request would be answered.
4. On 13 March 2002 FCO replied substantively
to Mr Evans's request and apologised for the delay in doing so.
They said that, for the period requested, FCO had a total of 267
staff seconded from outside organisations and private companies.
They said that the non-disclosure provisions of the Data Protection
Act 1998 prohibited the disclosure to third parties of personal
data such as the names of staff, whether they were permanent or
seconded, or details of their employment, without the individual's
consent. They said that it was not practical to seek the consent
of each individual and they were, therefore, unable to disclose
that information to Mr Evans. They said that they had considered
the release of the remainder of the information requested under
the Code but had decided that responding to it would require an
unreasonable diversion of resources: they cited Exemption 9 of
the Code. FCO informed Mr Evans of his right to seek an internal
review of their decision and of his right to make a complaint
to the Ombudsman if, after the review process, he remained dissatisfied.
5. On 22 March 2002 Mr Evans requested an
internal review of FCO's decision. He also modified his request
to exclude the names of the secondees. He said that he did not
believe that the Data Protection Act 1998 could be held to apply
to the remaining information if the names of the secondees were
not being disclosed. He also asked FCO to reconsider their position
regarding Exemption 9. He highlighted the fact that the Department
for Trade and Industry had compiled a list of 104 of their secondees
(House of Commons Written Answers, Official Report—28 June
2001, column 143W), and demonstrated that FCO had been willing
to provide this type of information in the past (House of Commons
Written Answers, Official Report—12 May 1998, column 109;
and 9 December 1998, column 223). FCO acknowledged receipt of
Mr Evans's request on 10 April.
6. On 11 May 2002 Mr Evans complained to
FCO about the time it was taking to review their earlier decision
and noted that their target time for completing internal reviews
under the Code was 20 working days. He also asked them to take
into account the guidance issued by the Lord Chancellor's Department
to government departments on how to respond to requests for information
about secondments. That guidance was issued by the Freedom of
Information unit of the Lord Chancellor's Department on 7 January
2002 and said that; "Departments receiving requests are advised
that information about secondees' identities and roles should
be disclosed and that the individual concerned should be asked
for their consent to the disclosure. The information should only
be withheld in exceptional circumstances."
7. On 15 May 2002 FCO wrote to Mr Evans
and said that they had reconsidered his information request in
terms of the modifications he had made to his initial request.
They said that the names of organisations from which an individual
was seconded and the dates of their secondment constituted data
which still fell within the scope of "personal data"
as defined in the Data Protection Act 1998. They noted that the
Act specifically defined "personal data" as:
". . . data which relates to a living individual
who can be identified
(b) from those data and other information
which is in the possession of, or likely to come into the possession
of, the data controller."
FCO said that removing the names of the secondees
did not necessarily make individuals unidentifiable. They regretted,
therefore, that they were unable to disclose the information Mr
Evans had requested. They said that details of the functions of
each job were not held centrally and were also "personal
data" set by the jobholder and their line manager. They had,
however, examined the centrally held data available to them and
had produced some statistics on the type of work undertaken by
the 267 secondees referred to in their previous correspondence,
87 of whom worked in the UK and 180 overseas. They enclosed a
table which showed how many of the 267 secondees worked in each
of the following areas: Aid, Defence, Political, Consular, Visa
and Commercial. They reminded Mr Evans of his right to make a
complaint to the Ombudsman if he remained unhappy with the findings
of their review.
8. On 28 May 2002 Mr Evans told FCO that
he wished to restrict his request for information still further
to individuals who had been seconded to FCO from private companies
since 1 January 1999. He clarified that his request was now for;
the list of the private companies from which each secondee came;
the dates on which each secondee had started and ended their secondment;
and a brief description of their work while at FCO.
9. FCO replied on 10 June 2002. They said
that, since January 1999 they had taken on 51 secondees to the
FCO from private companies and organisations. They provided the
names of the companies from whom 11 of those individuals had been
seconded but said that they were still seeking the agreement of
other companies for details of the remaining 40 to be disclosed:
the names of those companies were provided on 28 June. FCO said
that the individuals seconded from these organisations were all
employed in commercial work either in the UK or overseas. They
informed Mr Evans of his right, if he remained dissatisfied with
their response, to make a complaint, via a Member of Parliament,
to the Ombudsman.
Departmental comments on the complaint
10. The Permanent Secretary of FCO said
that Mr Evans's request had been carefully considered against
the provisions of both the Code and the Data Protection Act 1998.
He apologised for the fact that Mr Evans did not receive a reply
to his original request of 11 December 2001 until 13 March 2002
but said that they had not been able to collate the information
and assess the various issues raised within the target of 20 working
days. However, he said that Mr Evans had been kept informed of
progress regularly during this period. He said that his staff
had made every effort to meet Code deadlines and he had reminded
them of the importance of doing so.
11. As regards the information requested
by Mr Evans, the Permanent Secretary said that his staff considered
that the Data Protection Act 1998 prohibited them from disclosing
the names of staff and details of their employment without the
consent of the individuals concerned. He said that it was not
practical to seek such consent from 267 officers. He said that
other aspects of Mr Evans's complaint, such as the identification
of organisations that had seconded individuals to FCO and their
place of employment while working there, were considered to fall
under Exemption 9 of the Code as collation of the information
for 267 secondees would have required an unreasonable diversion
of resources.
12. The Permanent Secretary said that when
Mr Evans narrowed his request for information to include only
those individuals seconded to FCO from private companies this
so changed the nature of his request that they took it as a new
one, rather than as one requiring internal review. He said that
the delay in responding to the request was caused by the time
taken to obtain the companies' consent to this disclosure. He
said that, in future, the consent of such companies to the disclosure
of this information would be obtained at the outset of an individual's
secondment to FCO. The Permanent Secretary said that the remaining
information sought by Mr Evans was not held centrally for all
51 secondees and it would have been an unreasonable use of resources,
and caused further delay, to attempt to compile it. Again, Exemption
9 of the Code applied. He said that it was also relevant that,
under paragraph 4 of the Code, departments were not required to
acquire information they did not possess in order to answer a
request. He regretted that this had not been referred to in the
replies sent to Mr Evans on 10 and 28 June.
THE CODE
OF PRACTICE
ON ACCESS
TO GOVERNMENT
INFORMATION
13. Paragraph 4 in Part I of the Code reads
as follows:
"There is no commitment that pre-existing
documents, as distinct from information, will be made available
in response to requests. The Code does not require departments
to acquire information they do not possess, to provide information
which is already published, or to provide information which is
provided as part of an existing charged service other than through
that service."
14. Paragraph 8 in Part I of the Code is
headed, "Relationship to statutory access rights" and
reads:
"This Code is non-statutory and cannot override
provisions contained in statutory rights of access to information
or records (nor can it override statutory prohibitions on disclosure).
Where the information could be sought under an existing statutory
right, the terms of the right of access takes precedence over
the Code."
15. Exemption 9 in Part II of the Code is
headed, "Voluminous or vexatious requests" and reads:
"Requests for information which are vexatious
or manifestly unreasonable or are formulated in too general a
manner, or which (because of the amount of information to be processed
or the need to retrieve information from files not in current
use) would require unreasonable diversion of resources."
16. Following the Ombudsman's intervention,
FCO also quoted Exemption 12 of the Code, which is headed, "Privacy
of an individual" and reads:
"Unwarranted disclosure to a third party
of personal information about any person (including a deceased
person) or any other disclosure which would constitute or could
facilitate an unwarranted invasion of privacy."
17. Although not quoted by FCO, I have also
considered Exemption 15 of the Code, which is headed, "Statutory
and other restrictions" and reads:
"(a) Information whose disclosure is
prohibited by or under any enactment, regulation, European Community
law or international agreement.
(b) Information whose release would constitute
a breach of Parliamentary Privilege."
INVESTIGATION
18. When providing his comments on the complaint
the Permanent Secretary of FCO enclosed all of their papers relating
to Mr Evans's request for information. One of the documents contained
within those papers was entitled "Private Sector Secondments
into the FCO January 1999-June 2002". Although this document
did not include the names of the secondees, it did include the
name of the company from which each of the 51 secondees came as
well as their grade, their job title and the start and end dates
of each secondment. In the light of this document, and FCO's statement
that it would take an unreasonable diversion of resources to compile
such a list, I asked FCO to clarify their reasons for not providing
this information to Mr Evans.
19. I also asked FCO to explain exactly
how difficult it would be to compile the remaining information
sought by Mr Evans, ie a brief description of the work undertaken
by each of the 51 secondees. In doing so I pointed out that, in
providing a response to similar requests for this information,
other government departments had provided the job title of the
secondee and their posting (eg First Secretary Financial, Tokyo).
(Note: I asked Mr Evans to clarify exactly what information he
was seeking when he asked for "a brief description of the
responsibilities of each of the secondees" (paragraph 2).
On 15 November 2002 he confirmed that he was seeking the secondee's
job title and posting and said that this was the information that
had been provided by other government departments and by FCO previously
(paragraph 5)).
20. In reply, FCO said that they had reviewed
their original decision and decided that they would release the
information requested by Mr Evans where Exemption 12 of the Code
did not apply and where they were able to do so without breaching
the provisions of the Data Protection Act 1998. They said that
there seemed to have been an initial misunderstanding about the
kind of information Mr Evans had asked for as they believed that
he had wanted the job descriptions of each secondee; these were
agreed between each individual and their line manager, and were
not held centrally. FCO said that they were now happy to give
Mr Evans a brief description of the duties of each of the 51 secondees,
based on their job titles, their location and also the dates covering
their secondment to FCO. They said that this information was held
by British Trade International (BTI), a joint FCO and Department
for Trade and Industry organisation, who were responsible for
arranging secondments to FCO and BTI. They said that BTI were
seeking the consent of the companies concerned to release this
information, although they thought that, in view of the time that
had elapsed since January 1999, they might not be able to make
contact with all of the individuals concerned. They also said
that, if consent was withheld, the Data Protection Act 1998 would
inhibit the release of information about individuals and that
Exemption 12 would apply.
21. Having received this response from FCO
I asked exactly what information the secondees were being asked
to agree to release and when FCO expected to be in a position
to provide Mr Evans with the information he had requested. In
response, FCO said that BTI were asking consent to disclose; the
name of the secondee (in line with Mr Evans's original request);
the name of the seconding organisation; their job title; and the
dates of the secondment. The names of the seconding organisations
had already been released to Mr Evans but they said that, if consent
was withheld (or not obtainable) for one or more of the remaining
pieces of information, they would not be able to release it to
Mr Evans as they considered it to be personal data. They said
that this was in accordance with the broad definition of personal
data in the Data Protection Act 1998. They also considered that
Exemption 12 of the Code was relevant.
22. FCO said that, although it would be
difficult to put a timescale to this task, they hoped to be able
to give Mr Evans a full reply by early 2003. They said that they
were happy to collate the replies and send him one response or
provide the information piecemeal as and when consent was received
by BTI.
Assessment
23. Mr Evans's original request for information
was for details of all the secondments to FCO from outside organisations
and private companies (paragraph 2). He then narrowed that request
to exclude the names of the secondees (in an attempt to circumvent
the terms of the Data Protection Act 1998) and then narrowed it
even further to include only those secondments from private companies.
His final request, therefore, was for the following information:
(a) a list of the private companies who had
supplied the secondees to FCO since 1 January 1999;
(b) the dates on which each of the secondees
started and ended their secondment;
(c) a brief description of their work at
FCO.
24. On 10 and 28 June 2002 FCO released
a list of the names of the seconding companies. Following the
Ombudsman's intervention FCO have now also decided to release
the remaining information, subject to the agreement of the individuals
and companies concerned. I welcome that decision and I shall leave
the details of how that information is to be released to Mr Evans
and FCO. I am also pleased to note that, in future, FCO will seek
the consent of individuals and their seconding organisation to
disclose this information at the outset of their secondment to
FCO. I have seen a copy of the letter that FCO intend to send
to the seconding organisations seeking such consent and I believe
that it would be helpful if Mr Evans was also able to see that
letter: I see no reason why it should not be released to him,
and I so recommend.
25. There is, however, the outstanding matter
of the details of those secondees who refuse to provide consent
or who cannot be contacted due to the passage of time since they
were on secondment. In both cases, FCO have made it clear that
in their view the Data Protection Act 1998 inhibits the release
of that information because they consider it to be personal data
as defined by that Act. In taking this line I believe that they
have taken this matter outside the scope of the Code. That is
because the Code is non-statutory and cannot override provisions
contained in statutory rights of access to information or records,
or statutory prohibitions on disclosure (paragraph 14). The Data
Protection Act 1998 thus takes precedence over the Code and if
Mr Evans is now denied any of the remaining information that he
is seeking because consent has not been given then this is a matter
for the courts, not the Ombudsman.
26. As FCO have now agreed to release the
information sought by Mr Evans, subject to the consent of the
individuals concerned, it seems to me that no value would be gained
by considering whether or not the exemptions they cited could
have been successfully applied to the information requested had
they continued to withhold it. Nonetheless, there are several
aspects of the way in which FCO responded to Mr Evans's request
for information that I feel I should draw attention to.
27. The first is FCO's continued use of
the Code to justify non-disclosure of the information sought by
Mr Evans even though they considered the information to be personal
data for the purposes of the Data Protection Act 1998. Paragraph
8 in part I of the Code (paragraph 14) sets out the relationship
between the Code and statutory rights of access to information
and, as I have said above, the terms of the Data Protection Act
1998 take precedence over the non-statutory Code. A closer look
at the Code would have shown that Exemption 15 (paragraph 17)
relates to statutory restrictions on the disclosure of information.
Where there is a statutory restriction on the disclosure of information,
that is the only Code exemption that need be applied. In such
cases a department should cite Exemption 15 and make it clear
at the outset that an approach to the Ombudsman would be unlikely
to succeed because the law takes precedence over the Code. The
Ombudsman's role in such cases is limited to confirming that a
department was not falsely claiming that the information requested
fell within the area covered by the statutory prohibition. All
I can say in this case is that the details of an individual's
secondment to FCO do, in principle, fall within the broad definition
of personal data as set out in the Data Protection Act 1998.
28. The second issue is FCO's use of Exemption
9 of the Code (paragraph 15). There are two strands to this exemption:
the first relates to the amount of information sought, and the
second to any difficulties that there may be in identifying, locating
or collating the information requested. In each case the test
is whether or not these factors would mean that meeting a request
for access to information would require an unreasonable diversion
of resources or otherwise undermine the work of the department.
FCO's argument was that the information sought by Mr Evans was
not held centrally and that it would have taken an unreasonable
use of resources to compile it. Having received FCO's internal
papers, therefore, I was surprised to find that much of the information
sought by Mr Evans had already been put together (paragraph 18).
In response to my request for clarification, FCO said that there
had been a misunderstanding about the kind of information Mr Evans
was seeking regarding the job description of the secondees (paragraph
20). I have considered FCO's explanation for this misunderstanding
but I have to say that I am baffled as to how it could have occurred.
In an attempt to highlight inconsistencies in the release of secondment
details throughout Whitehall, Mr Evans had indicated to FCO the
type of information that several other government departments
had released into the public domain (paragraph 5). Indeed, Mr
Evans had also pointed out to FCO details of secondments they
had issued in May and December 1998. In most of those instances
the information provided about the job description of the secondee
was the job title and posting, information that FCO have now agreed
to release to Mr Evans (subject to the consent of the secondee).
To my mind FCO should have been aware of the type of information
Mr Evans was seeking. Had they considered this issue more carefully,
and made appropriate enquiries, it is clear to me that FCO could
have provided Mr Evans with the information he was seeking much
sooner than he will now receive it. I am critical of FCO's actions
in this regard.
29. I also note that the Permanent Secretary
referred to paragraph four of part I of the Code (paragraph 13),
in particular that part which states that departments are not
required to acquire or create information they do not possess.
However, as all of the information requested by Mr Evans was held
either by BTI, for whom FCO have partial responsibility, or (potentially)
by one or more of FCO's consulates or embassies abroad, I do not
consider that paragraph four can be held to be relevant to this
information.
30. As to the general handling of Mr Evans's
request for information, I am concerned by the time taken by FCO
to respond to his request. I acknowledge that his original request
was not a simple request for information, which the Code recommends
should be responded to within 20 working days of receipt, and
that there was a significant amount of information that needed
to be collated. FCO also had to wait for central government guidance
on how to deal with requests for this type of information (paragraph
6). However, it is disappointing to note that it took FCO over
three times as long as recommended by the Code to reply to Mr
Evans's first request for information and nearly twice as long
as recommended to reply to his request for a review. Commendably,
Mr Evans was kept informed of developments and I note that FCO
responded to his revised request for information well within the
target of 20 working days. Nonetheless, I am critical of that
final response because, although FCO provided the first part of
the information requested (paragraph 23), they failed to address
Mr Evans's request regarding the second and third parts, neither
providing the information nor explaining why they could not do
so.
31. While I am pleased to note that the
Permanent Secretary has reminded his staff of the importance of
meeting Code deadlines, in the light of the comments I have made
above, I believe the Permanent Secretary should also remind his
staff of the wider requirements of the Code. Of particular relevance
to this case is that, while all requests for information should
be considered under the terms of the Code, there are occasions
when those terms are overtaken by statutory rights of access to
information and statutory prohibitions on disclosure.
32. In reply, the Permanent Secretary said
that he was pleased that we had agreed that some of the information
sought by Mr Evans was outside the scope of the Code, since it
was personal data covered by the Data Protection Act 1998. He
said that they had now obtained consent to the disclosure of this
information from most of the individuals concerned and this had
enabled them to provide it to Mr Evans without breaching the non-disclosure
provisions of the Data Protection Act 1998. The Permanent Secretary
agreed to provide Mr Evans with a copy of the standard letter
which they send to individuals at the outset of their secondment
to FCO seeking consent to the disclosure of details of their secondment
(paragraph 24). He also agreed to remind all members of his staff
of the importance of the Code, its wider requirements and the
time limit that it stipulates for responding to requests for information.
Conclusion
33. While I am pleased that FCO have agreed
to release the information sought by Mr Evans, I have criticised
them for several aspects of the way in which they handled his
request for information. The Permanent Secretary has said that
he will use this opportunity to remind his staff of the requirements
of the Code and I see that, and the release of the information
requested, as a satisfactory outcome to a justified complaint.
Senior Investigation Officer
Parliamentary Commissioner for Administration
February 2003
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