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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1060-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT
Tuesday 12 October 2004 MAURICE FRANKEL CHRISTINE MILES, STEPHEN MORRIS and DR JOHN GRENVILLE
DEPUTY CHIEF CONSTABLE IAN READHEAD and CHIEF INSPECTOR PAUL BROOKS Evidence heard in Public Questions 87 - 184
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 12 October 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Ross Cranston Mr Clive Soley Keith Vaz Dr Alan Whitehead ________________ Witness: Maurice Frankel, Director, Campaign for Freedom of Information, examined. Chairman: Good morning, Mr Frankel. We are very grateful to you for coming to see us today both because of your very long involvement in campaigning for the freedom of information and the advisory role that you have played as the Government is starting to implement freedom of information. Q87 Mr Soley: I ought to congratulate you too. I cannot remember how many years I remember you mentioning this topic, but it has been a very long time. Turning to the issue of implementation, do you think that the Department has got it right to implement in one day and have this sort of big-bang approach? Mr Frankel: No, I think that is bad verging on potentially catastrophic. I think what has happened is that central government could have done this much earlier, had a lot of experience from the Open Government Code and could have dealt with a lot of the problems which are going to come up relatively easily. Instead of that, every single authority in every sector is confronting the same problem simultaneously with no opportunity to learn from anybody going ahead. That is the first problem. I think the second problem, and there are three problems, is that, apart from the extra work caused to the public authorities, you have had a large turnover of staff who were on the ball when the Act was passed and have moved on since then and been replaced by people and very often the replacements have now left as well, so you are on a third generation of officials. The final problem is for the Information Commissioner who will start to receive complaints across the whole public sector at roughly the same time instead of having it come in sector by sector with some dividing time of months to adapt to. Q88 Mr Soley: So you would have identified different sectors by local government or education or whatever? You would have done it that way, would you? Mr Frankel: That was the Government's original plan. That is what the Home Office, when they had the Bill, intended to do and that is what the Lord Chancellor's Department intended to do after the Act was passed and at a certain point the decision was taken to slow the whole process down and to bring it in all in one go. Q89 Mr Soley: Can you tell me, if you look across the whole sector of central government, education and health, which areas cause you the greatest concern? Mr Frankel: That is really hard to judge because I tend to see the people who come to various training courses and events because they have shown an interest and, therefore, are slightly ahead of the game, but quite often even then you see people suddenly react with shock when they realise that the Act is three months away or two and a half months away and we tell them that things are quite quiet in terms of the public discussion of this issue. "You have all had a lot of attention as public authorities and there is now going to be training done for journalists, for campaigning organisations, for researchers, for users of the Act and we are going to be doing some of it and on January 1st when it comes into force these people are going to be very interested and if you are not on top of the issue, they are not going to have any sympathy for you saying, 'Well, we only started to think about this three months ago'. They are going to say, 'You have had four years and two months to prepare for it, so that's not good enough'". There are a lot of white faces in the audience when I say that. There are people complaining, "We haven't had enough time", that they have just been appointed. Q90 Mr Soley: Do you not think that the Commissioner has an advisory role here so that if there was a difficulty, actually you could negotiate it out rather than for them to be running off to court or whatever? Mr Frankel: There is a sort of graded appeals process. You go first to the authority itself, to its independent internal complaints process and then to the Information Commissioner and then you can go to the tribunal if that does not satisfy you, so there are opportunities to get it right, but I think instead of staggering it, they will all start to arrive at the Commissioner's office by pantechnicon probably in March. Q91 Mr Soley: If they adopted your model and if you included, say, education, but did not include certain other parts of local government or central government, the information can be in two places at the same time, can it not? Mr Frankel: Yes, that is right. You could have started off with central government and then gone to local government, then gone to the National Health Service and then gone to the education sector. Q92 Mr Soley: How could you have firewalls on a step-by-step basis? You could not, could you? Mr Frankel: No, you would not have firewalls. The people who held the information would have to give access to it, but at the same time there is no transfer of requests under the Act. If you go to an education authority for something which started life with some other authority, it does not pass the request up to the body which generated the document, but it has to deal with it itself, if it wants to, in consultation with the people who produced it which is what they would have done under a staggered scheme as well. Q93 Mr Soley: Do you have any concerns about private sector bodies holding information and revealing that information in relation to their public funds? Mr Frankel: Well, the Act is very good in providing for those types of bodies to be designated as public authorities under the Act which is a very helpful part of the legislation. That is not going to happen straightaway; that is going to come in a little bit later on, I understand. It is a very important part of the Act and, particularly as public functions are privatised, are being done by contract, by PFI schemes, it is important that people should not lose all rights in relation to those functions and that information. Q94 Mr Soley: And you are satisfied that there are appropriate guidelines for that sort thing? Mr Frankel: Well, there are no guidelines at the moment. There is a provision in the Act which allows these bodies to be designated as public authorities and a little bit of work, as far as I know, has started in the Department for Constitutional Affairs, but I am not sure how far it has gone and how wide that net is going to be thrown. Q95 Mr Soley: But you think it can be explored as it goes on in effect? Mr Frankel: Yes, it does not all have to be done in one go, but it can be done in stages and I would certainly hope to see the PFI bodies and so on caught by this. Q96 Ross Cranston: Can I ask you about fees, not so much the policy issue of whether they will shirk off enquiries, but the process issue. As we understand it, there was a fees working group. Mr Frankel: Yes. Q97 Ross Cranston: It could not come up with one particular solution, so it came up with a number of options, but what is your understanding of where we are with fees? Mr Frankel: Well, that was not quite the process actually. I was one of the independent members on that working group and I think we had three meetings over several months and each meeting was working out the fine print of an agreed scheme set out in draft regulations which had been published while the Bill was going through this House. At the very last meeting we were told that we needed to have an alternative option which involved higher charges and what should be the basis for those charges, so a series of options was then put forward in contrast to the one option that everybody had been working on until then. The process was not good because basically everybody's understanding was overturned at the end of that whole process, at the end of what should have been a process to get these details right. Q98 Ross Cranston: So where are we now? Mr Frankel: We are waiting for the announcement on fees to be made. Q99 Ross Cranston: Do you have any idea of what the level is likely to be? Mr Frankel: No, I only know what I have read, the story in The Guardian two or three weeks ago which suggested that the Government's decision is going in a liberal direction in terms of low fees. Q100 Ross Cranston: As you know, we spend a great deal of time scrutinising the DCA and I understand that you were on that fees working group, as you have just told us, but you are also on the more general advisory working group. Mr Frankel: Yes. Q101 Ross Cranston: So can you give us a general overview of how you think the DCA has gone about implementation and is going about implementation? Mr Frankel: Well, the DCA, I think, has always been very positive about the legislation. Whenever you talk to the people there, I think they want to get an Act that works and they have been encouraging authorities to implement it in a positive spirit and I think that has been very encouraging. I think the problem has been, as far as the advisory committee goes, that since it was set up in January 2002 we have had four Ministers chairing it, a succession of four different Ministers. Q102 Ross Cranston: So has it met the needs, as it were? Mr Frankel: Well, it has not had the consistency, it has not had somebody there getting on top of the issue, sticking with the issue and seeing what needs to be done to shake the thing up a bit where that is necessary. Q103 Chairman: And there has been a similar turnover of officials supporting the advisory board. Mr Frankel: Yes, there has been a turnover of Ministers and you might say, "Well, at least the officials continued", but we have had a similar turnover of officials because you have had, I think, three directors of that division and two acting directors in less than three years, so you have had four Ministers and five heads of the division over a very short period of time, so everybody has started getting on top of it and by the time they have figured out what is to do, they have handed over to somebody else. That has been a very unhelpful aspect of the process, given that the Ministers and the officials have all been extremely positive in what they wanted to do. Q104 Ross Cranston: This turnover, is that just the normal operation of the Civil Service that people have gone after two or three years? Mr Frankel: Well, if they had stayed for two or three years, we would have been in a much better position. They have stayed for much shorter times. Q105 Ross Cranston: Is this because it has not seen as sufficiently important? What is the problem? One can expect a normal turnover in the Civil Service, but, from what you are saying, this is a much quicker turnover. Mr Frankel: Well, it is a much quicker turnover and Lee Hughes, who has been the head of this unit from the time the Bill was devised and passed, moved on after about six years which was a natural move for him. There was a temporary person and his successor was appointed for six months and moved on to go and deal with some problem that had come up over the Supreme Court. Q106 Ross Cranston: I hope we had not caused that one! Mr Frankel: No, I do not think you had caused it. I think the judges themselves, the Law Lords themselves were very unhappy and the Department decided, "We've got to deal with this problem", and it took the guy who had just got on top of the freedom of information away and on to fire-fighting this problem. Well, that might have had logic for them, but it had a very poor logic for freedom of information. Then there was a very long period where you had a new acting director and the new acting director finally was replaced by a new, permanent head of that division, so everybody has had learning and not operational time, as far as I can see. Q107 Ross Cranston: Apart from that, are there any other deficiencies that you can identify in the way that the DCA handled it? Mr Frankel: Quite possibly ---- Q108 Ross Cranston: It could not control the turnover and good people were taken off to do other things, but are there any other particular things that you could identify in the way the DCA handled it? Mr Frankel: Well, how departments should manage change is not my strength. I think that there are people who would be better able to comment on that side of things than I could obviously. I think everybody was late in their guidance, in producing this. I think at the end of the day the fact that this was delayed for four years and two months, those four years have not been well exploited in those cases. There are some sectors which have done a lot of work, but in general you have not seen four years of benefit and what you have seen is a delay which has allowed a lot of people not to think about it for nearly four years. Q109 Ross Cranston: I speak for myself, but I have some difficulty in actually working out where the different responsibilities are. Maybe this is just because I am trying to master the subject, but is it clear who has which responsibilities, DCA or the Information Commissioner? Is that clear? Is that clear to the people out there who need to know, apart from us? Mr Frankel: Well, I am not sure how clear it is. I think it only becomes a problem when they are saying different things or when neither of them is doing something and each is leaving something to the other. To the extent that they are both encouraging authorities to get to it and so on, I do not think that matters. Q110 Ross Cranston: I am sorry, I did not mean just the DCA or the Information Commissioner, but other departments and agencies. Mr Frankel: Well, I think one of the great problems has been that we have got parallel regulations on access to environmental information as a result of a European Directive. These are in some ways more far-reaching, more powerful, more demanding than the Freedom of Information Act. They have had less attention in terms of the profile and they have been quite properly under the control of Defra. For other reasons we did not even see a proper draft of the regulations until about three months ago and they have now been pulled because of drafting defects. That has all been held up by departments objecting to the things they did not want to see in those regulations. Q111 Ross Cranston: This is the environmental regulations? Mr Frankel: Yes, and that has caused a real problem because lots of authorities are just beginning to figure out that there is a Freedom of Information Act and they are barely aware of this parallel regime which is not just to do with pollution, but it is to do with the management of the land, the conditions inside premises; it is far-reaching. Q112 Ross Cranston: In terms of the other agencies and departments, as we understand it, the DCA encouraged each to appoint a champion. Now, has that had a beneficial effect? Mr Frankel: Where that has happened, where there has been a champion and the champion has been active, yes. How active those champions have been, it is difficult to gauge. Q113 Ross Cranston: So not everyone has actually done that then? Mr Frankel: I am not talking about central government, but I am talking about across because you were asking me about central government. Q114 Ross Cranston: Well, central and local. Mr Frankel: I think one of the things that is noticeable certainly at the training events and the conferences and so on is that a lot of the people that turn up from public authorities are positive about it, the people who are doing it are positive about it, but they do very often say that they have problems bringing their top managers along with them. It is a common thing to have questions, asking, "What are the penalties for non-compliance?", hoping to be told that they are Draconian, not hoping to be told that they can get away with it, but hoping to be told that they are powerful so that they can go back and frighten the boss and frighten the top managers. When I say, "We are going to be training journalists and the journalists are not going to have the patience to go through the whole appeals process, so you are going to be on the front page with your initial response", that worries them, but it may be helpful in frightening them and driving the incentive to get going on this and not just wait and see what it is like when it comes into force. Q115 Chairman: Have you seen any evidence so far of departments developing protective regimes or procedures designed to minimise their embarrassment rather than to secure compliance? Mr Frankel: I am probably not the first person they would show those arrangements to actually if they were developing them. Peter Bottomley: Is that a full answer? Q116 Ross Cranston: I think we will have to wait so we can get access to them. Mr Frankel: I think we do have to wait and see. It is clear that some of the freedom of information people are very positive in trying to drive the departments in a positive manner. You do not necessarily get the same message from other parts of government, but you do not really know how indicative that is of how the whole machine is going to work when it comes into force. Chairman: We will keep an eye on that. Q117 Dr Whitehead: I think this follows from the thoughts which have just been expressed. There is, I understand, to be a centralised system of lobbying and the processing of requests across public bodies as far as FOI is concerned. One of the suggestions about that particular way of doing things is that it, as it were, smooths out the potential for what one might call 'divide and conquer', which some people may regard as a good thing and other people may regard as a bad thing. What is your view of how that is likely to develop? Mr Frankel: Well, I can see perfectly reasonable reasons why departments would want to do it, but I think the danger is that it is vulnerable to the lowest common denominator approach and I think we are quite likely to see departments, who would want to do something positive in response to a request that has gone to other people, being urged to lower their ambitions, not to make it difficult for others. Actually we saw that in one of the big cases under the Open Government Code where a round-robin request, I think, from The Guardian asked about conflicts of interest and statistics about the number of declarations by Ministers to their permanent secretaries about possible conflicts of interest as required by the Ministerial Code. It is clear that one or two Ministers were very happy to reply and in fact did reply and at a certain point the system got hold of that request, recognised it as going round and stopped it in its tracks. In fact Jack Straw was sitting here in front of the Public Administration Select Committee on this very point 18 months ago or two years ago and he was the one who put up the objection. It was put up in his name basically and his case had to go to the ombudsman. One of the objections was on privacy grounds and he said, "I had no objections on privacy grounds". It was obvious that he was asked to argue the case on privacy arrangements in order to stand up another objection to disclosure. Q118 Dr Whitehead: So when you say "the system", who is the system? Mr Frankel: Well, I assume this is the Cabinet Office and the permanent secretaries and so on saying, "It is no good, those Ministers, who are keen on openness or think they've got nothing to worry about, disclosing everything because those of us who do not want to be so frank are going to have no ground to stand on if the complaint goes to the ombudsman and it is clear that if half our colleagues have released the information, we're not going to be able to say that we can't disclose it because it is a breach of our privacy or it is harm to our thinking, the frankness of our internal thinking process, so let's get all in line and let's all say we can't do it". I think that is the problem we are going to see with a co-ordinated system. That is going to be the threat. What you are going to have is a vote, "Shall we go for a positive line across the board or shall we go for a minimal line across the board?" Q119 Dr Whitehead: Yes, the opposite interpretation could be put on it which is that a centralised lobbying process ensures that everybody is as open as possible and the people who are thinking of dragging their feet, as it were, or withholding material which ought to be put in the public domain are encouraged uniformly not to do so. Mr Frankel: I will believe it when I see it. I think in theory it could work that way, but I think people would be better off with guerrilla tactics rather than round robins. Q120 Peter Bottomley: Do we know where the log is going to be held? Mr Frankel: I do not, I am afraid, no. Q121 Dr Whitehead: Following the thought about the extent to which co-ordination may or may not cause a lack of complete openness under the regime, I think a number of concerns have also been expressed about the operation of the exemptions regime. Have you been made aware of the difficulties? Mr Frankel: Well, I have my own concerns about the exemptions regime. Are you talking about the concerns expressed within the Whitehall system? Q122 Dr Whitehead: Yes. Mr Frankel: I imagine there is concern about how the public interest has to be operated and I am sure that is a matter of concern. We are certainly concerned about how the ministerial veto will operate in relation to the public interest test. Q123 Dr Whitehead: You mentioned, for example, and I questioned your statement about how, as it were, the system might intervene during the course of a round robin or a multi-department request for disclosure. Is your view about the exemptions regime that the exemptions regime could be, as it were, applied while something is in process as opposed to framed and being clear from the outset? Mr Frankel: Yes, I do not think anybody is going to be clear from the outset in terms of exemptions. I think it is going to be a case-by-case determination. What you may have is a group of cases decided in common simultaneously because they are the same request or very similar. I am not sure how sensible it is to try and work out exactly how an exemption will apply before the Act comes into force because reality is going to shake up any attempt to do that. Q124 Chairman: Can I turn to the publication schemes. Departments have to have a publication scheme. How are we to judge, and who should judge, whether the scheme is an adequate one? Mr Frankel: Well, I think the main test is what it adds to what went before. I think in too many cases the answer is practically nothing and in fact what you see is schemes built up by taking stuff that is on the website already and just a link to it being put on the publication scheme and a slight restructuring of the information. I think we would have liked to see, and would still hope to see, schemes being used, first of all, to make previously inaccessible or unpublished information available and, second, to provide material which will help people understand what it is that departments hold, what type of material goes into their files, what type of documentation is produced at different stages in the decision-making process so that people can anticipate what will be there that addresses the issue they are interested in rather than have a black box into which people have to fire at random with no idea whether there is a target they can hit. What we also would like to see is departments and public authorities publishing their request logs and their disclosure logs, and this co-ordinated system of monitoring would provide a basis for that so that people can see what is actually being disclosed and people can see what is being treated as exempt and what is not being treated as exempt. I think that will help to improve the level of disclosure because it then becomes very difficult for the people who have not done the work, departments which have not thought about it or authorities, to withhold stuff which their colleagues in other departments have been releasing. It helps to drive the standards up if that is published. Q125 Ross Cranston: You have spoken about some of the problems of what has been done and you have just identified what departments can do now, and it is rather a naïve question, but if you were the permanent secretary at DCA, what three things would you be doing now or five things or whatever? What are the key things that the Department should be doing? Mr Frankel: The key thing, I think, whether this is in the Department's power or not, is for the Prime Minister to indicate a personal commitment, to renew the personal commitment he at one time made to this issue, which he made in 1996 in a talk to our annual awards ceremony. He made a very powerful and persuasive commitment on freedom of information in terms of his own approach to government and I think that to renew that commitment would be the single, most important thing that could happen to give the signal to public authorities that the sub-text was that they were expected to do a good job, not that if they dragged their heels, nobody would really mind too much, that it would be between them and the Information Commissioner, but the Whitehall machine would not mind. Q126 Chairman: When did you say he made that statement? Mr Frankel: In 1996. Q127 Peter Bottomley: Could you send us the speech? Mr Frankel: Yes, of course. Q128 Chairman: A lot has been spoken since 1996! Mr Frankel: Yes, exactly. Chairman: Thank you very much for the most illuminating, although brief, and extremely valuable session for us. We appreciate it very much indeed.
Witnesses: Christine Miles, Chief Executive, The Royal Orthopaedic Hospital, Birmingham, Stephen Morris, Programmes and Performance Directorate, Department of Health, and Dr John Grenville, Member of BMA General Practitioners Committee, examined. Q129 Chairman: Good morning, Dr Grenville, Mr Morris and Ms Miles. We are very glad to have you with us. Mr Morris, I gather, has changed his job which we find is pretty frequent in this area of work, but that still I think will enable you to answer on the things we want to find out about. There was an NHS FOI project which was wound up, I think, in January of this year. Why was it wound up and had it achieved its objectives when it was wound up? Ms Miles: Yes, there were three objectives to the original project. One was to ensure the orderly introduction of the Act in the NHS. Another was to ensure that there were effective publication schemes approved on the basis of model schemes by the Information Commissioner by the deadline of 31 October 2003. The final objective was to review and evaluate the implementation plan and recommend the way forward from January 2004 to the full access regimes being in place by 1 January 2005. The Board met all those three objectives and in meeting the third objective, it reviewed in January 2004 what would be the best way in terms of moving forward to the full access regimes and it was felt that there was a sufficient performance management framework within the strategic health authorities and within governance arrangements of NHS trusts to enable that to be the main performance management framework for the full access regimes. To give an example, the information governance toolkit, which is a list of 160 questions, which we, as an individual trust, will answer, includes at least half a dozen questions on freedom of information and your readiness for implementation and that score on the information governance toolkit forms an element of your balance score card towards your star rating of the trust. By doing that and including it within the governance arrangements of trusts, it became more mainstream than actually an add-on to the trust's business. Mr Morris: I think the project went as far as it could in raising awareness and it was about how you get the balance right between handing over the accountability for implementing freedom of information to the about 800 NHS organisations across England which hold that responsibility at board level so that the boards, trusts and PCTs were aware of their responsibilities, had achieved the first hurdle which was to establish publication schemes and then had a system of inspection and regulation to assure their boards that freedom of information was being tackled appropriately in their local situation. Q130 Chairman: So who is really exercising a significant role now and from now onwards in monitoring what these numerous organisations do? Is it the NHS central management, is it the Department of Health, or is it the Department for Constitutional Affairs of course as well as the Information Commissioner who has responsibility for all of them? Who do you think is looking over your shoulder? Mr Morris: Individual trusts and PCTs have a responsibility to comply with their control assurance regime which includes FOI within the information governance, so their external auditors will effectively be signing off on a statement of internal control within each trust's annual report and accounts. Q131 Chairman: Their external auditors being? Mr Morris: Their external auditors for the purposes of control assurance, so accountants, for example, would be a normal external auditor of a trust or PCT. Q132 Chairman: Do they sound a very likely body to be enforcing freedom of information effectively? Mr Morris: Well, in addition the Healthcare Commission has a series of standards which has recently been published which it uses to regulate the trusts and PCTs. In addition to that, the strategic health authorities have the responsibility for ensuring that the NHS meets its requirements. Q133 Chairman: What about the Department? Mr Morris: The Department of Health has that ultimate responsibility which it exercises through the strategic health authorities, 28 strategic health authorities. Q134 Chairman: There are a lot of fingers in this pie, are there not? Ms Miles: I can speak as a trust chief executive, that there will be, in particular, the information governance toolkit which has to go to your board and the board will review your scores in an action plan for improvement for 31 March 2005 where you have to resubmit your scores as part of your star rating and clearly the Healthcare Commission will want to see an improvement in that score. An element of that information governance toolkit and list of questions is the freedom of information. Also the internal auditors, which is another group of accountants, will be looking at your risk assurance framework where the trust board have to approve the list of risks and your progress to reduce those risks, and they will be looking for items like freedom of information within that risk assurance framework. Q135 Chairman: So the risk of a breach of freedom of information is being assessed on the same terms as the risk that you might take the wrong leg off? Ms Miles: Yes, in terms of your balance score card and your star rating. Mr Morris: And the accountability for these public authorities, and we are very clear about this through the project, lies with the chief executive of the PCT or trust, so that is the person who, should things unfold in a negative way, would be subject to the Information Commission. Ross Cranston: It is getting near to being a Prime Ministerial commitment, is it not! Q136 Chairman: Can I turn to the BMA and the role that it has played in preparing for FOI implementation. What kind of support are your members receiving and what kind of progress do you think they are making? Dr Grenville: We have received some support, and I am speaking really of GPs here because, as independent contractors, it is different. Clearly with doctors working in trusts, it is the trust which is the public authority, be that a hospital trust or a primary care organisation. I should talk about PCOs because obviously this is England and Wales legislation and they are not PCTs in Wales. I think probably it came as a surprise to most GPs to realise that they were covered by this Act. I think those who had read the Labour Manifesto in 1997 probably thought this was about open government rather than GPs having to give information, so I do not think they followed it very closely until they began to be told that it did apply to them and that they did have to do something. Interestingly, although I have been involved in this at the BMA level, it came as a complete surprise to me when I was asked to give evidence to this committee that it is in fact an Act under the aegis of the DCA. I had no idea. Q137 Chairman: So the DCA had not impinged on you in any way? Dr Grenville: No, it had not, no. The help that we had had was through the NHS Freedom of Information Unit and I think as a part of that work there was liaison with us about GPs. I suspect that the vast majority of that organisation's work was to do with trusts and PCOs, but the information that we got was helpful and it enabled us to talk to our members about what they needed to do to prepare a publication scheme. We got through that and we now find that we are coming up to 1 January and we are going to have to mount some sort of a campaign to remind people that things change on 1 January and that they will have to respond to requests. I think we will be able to do that. The timing is a little difficult. I suppose it is the same in that there is always a lot going on, but there does seem to be a very great deal going on at the moment for GPs. We are struggling at the moment with the implementation of our new contract both in general medical services and indeed in personal medical services. Most PMS practices should have signed their contracts last week and almost none has, we are about to start quality and outcomes framework visits, we are doing our enhanced CRB checks at the moment, we are coming to terms with the Disability Discrimination Act and we are thinking about the implications of the Shipman and the Ayling inquiries, to name but a few. In amongst all this we have to comply with the Freedom of Information Act. We will do it, we are quite good at doing things, but I do not think that there will be huge enthusiasm amongst GPs that we want to get out there and make information available. I think many GPs will think, "Here's another hoop that we have to jump through, but we have to, so we will". I think, as GPs, we will find it easier because we are used to giving information, it is what we do. I think that once GPs understand what sort of information they may be asked for and how they will have to respond to it, they will probably do it reasonably well. I think they will find a difficulty in that we are anticipating that it will only be a very small minority of requests that will come from patients themselves and we are used to dealing mostly with patients. We think that the press will make a number of enquiries and we worry, as we have said in the written evidence, that they will make simple enquiries and build simple and crude league tables out of what is in fact some information that is very complex. We will probably be advising our members, if asked, for the number of points, for instance, that you score on the quality and outcomes framework, not just to send in the number of points, but to send an explanation of what you are trying to achieve, what your population base is and what your prevalence rates are for diseases. We fear that the press may not use that extra information, but all they will be interested in is the number of points. We also fear that the same will happen with the Freedom of Information Act as happened with the Data Protection Act and it will actually be hijacked by the legal profession. The Data Protection Act, as a vehicle for patients understanding what was being said and done about, and to, them, was very useful. The use of it by solicitors to run personal injury cases, particularly of course under the impact of the Woolf reforms, means that in a recent survey, 96% of Data Protection Act requests that are received by GPs come from solicitors, not directly from patients, and they are not for patients to understand what is going on about them, but for solicitors to run their cases. We find that quite difficult. It does have workload implications, particularly with the third party screening which has to be done by the doctors themselves. We fear that the same will happen with Freedom of Information Act requirements, so along with the request for, "How did you treat this patient?", we will get at the same time a request under the Freedom of Information Act for your policies on treating patients with these particular problems. Q138 Dr Whitehead: As far as publication schemes are concerned, your evidence suggests that it has been difficult to arrange for the co-ordination of primary care organisations hosting GP practice publication schemes and that, therefore, GPs have tended to rely on the NHS FOI website for publication schemes. Firstly, what is the status, in your view, of publication schemes across the whole health sector and, secondly, of course the FOI project in the NHS has now been wound up, so what is the status of co-ordination as a result of that practice among GP practices with the winding up of the FOI scheme? Dr Grenville: Well, perhaps I could start with GPs because it is a small part and leave the trusts and PCOs to my colleagues. As far as GPs are concerned, yes, it has been difficult, I think, to arrange for the PCOs to host the publication schemes largely because PCOs themselves have at least as much on their plates as GPs do and I think as far as freedom of information has been concerned, they have been considering it in terms of what they have to do as a public authority themselves. They have a lot of information and in fact the bulk of a PCO's work is around commissioning secondary care services, so that has not really been on their horizon. Because GPs found that they could complete their publication schemes on the FOI website and had been told that that was sufficient to put it in the public domain, I think many of them have taken the easy option and have done that. Some who run their own websites will of course have transferred that information to their own website, but I suspect that in general GPs will say, "Okay, we've done it, we've got it, it's in the public domain on that website and if anyone actually comes into surgery and asks us about it, we will print it off from that website and give it to them", and I have in fact brought along an example of one. I think that is how GPs will handle it. Obviously I cannot speak for the other organisations within the NHS. Ms Miles: All of the trusts and strategic health authorities adopted the model publication schemes that were compiled from pilots, volunteers who constructed them, and they were all approved by the Information Commissioner which meant that there was a lot of work that was saved by individual trusts doing their own individual publication schemes and we could, therefore, guarantee a high standard as well. Since those publication schemes have been populated, Stephen has taken on a role nationally through the 28 strategic health authorities to support the continued awareness and learning from the original project and the heads of corporate affairs for the strategic health authorities are again undertaking awareness campaigns locally within their strategic health authorities, supported by the website that was developed during the original project which will no doubt be of great importance after 1 January because we hope that trusts will then start sharing information and knowledge about the requests that they are getting in and how they are actually dealing with them. Mr Morris: I just wanted to add that the project which I was involved in in fact covered England and it did not cover England and Wales, so I am talking purely about the implementation in England and that we believe that all of the NHS trusts and PCTs completed their publication schemes in the model form to the due date. With regard to the independent contractors, we worked hard to agree the model scheme, which we did do, and I have the figures here that 30% of the 9,000 GP practices in England have signed up to the model scheme on the on-line version, so that is where we have reached with GPs. We sought to encourage and make as easy as possible that model scheme. Q139 Dr Whitehead: In terms of overall compliance from January 2005, Dr Grenville, in terms of GP practices, what is your assessment of likely effective compliance and what areas would you be most concerned about regarding effective implementation? I note in the BMA submission that it is mentioned that a number of GPs, for example, have reported that they have not received any requests under the Act and do not seem to be aware that there is a reason for that, ie, it has not come into force. Dr Grenville: Well, that is true. I think there is a lot of legislation around which affects GPs both as a part of the NHS and as independent small businesses. I think the increasing way of running things, where if something is published on a departmental website, it is in the public domain and everyone is assumed to know about it, causes us problems. The average GP does not actually sit down before morning surgery and log on to the Department of Health website to see what is new today, let alone the DCA website, the Home Office website, the Defra website, et cetera, et cetera, so to some extent GPs do rely on getting specific information directed to them to know what they have to do to comply with legislation. I think that the BMA and LMCs are working very hard to ensure that GPs are aware and, as I say, we will be mounting a campaign between now and 1 January. We would expect GPs, I think, to turn to their local medical committees for advice and guidance and we will be looking to make sure that LMCs can give that advice and guidance and that if they do not know the answer, they can get it from BMA House. I do not expect huge difficulties in GPs actually not being prepared to give information. They will be prepared to give information, but, as I said before, it is what we do, we give information to people in the consultation. I think they will look at information and say, "Is that really something that I need to give because I am a public body?", and we have made reference in our written submission as to the difference between the income that a practice receives from the NHS and the income that it receives from elsewhere which is private income, and there may be some problems around differentiation there. I do not think we will have any great difficulty with GPs as between what is a request under the Data Protection Act and what is a request under the Freedom of Information Act. We are very, very used to the concept of personal information being confidential and, therefore, anything that we would regard as being confidential is covered by the Data Protection Act and things that are more general and not patient-specific and confidential would come under the Freedom of Information Act, so I do not think we will have a big problem there. I think that GPs will do their very best to comply, though they may have technical difficulties. The question is going to be one of workload and the resources required to deal with it. The difficulty of course for GPs is that we have had no extra resources to cope with this and we do not know about payment schedules and so on. We do not know what, if anything, we will be allowed to charge for and, if so, how much or indeed how little if it mirrors the Data Protection Act. That would have been helpful to know. If we get a small volume of requests, I think they will be dealt with very well. If we get a high volume of requests, I think it just may be that practices will be overwhelmed because of all the other things that they have to do as well and I think there is very little doubt that practices will take the view that if they are completely overwhelmed, things that relate to individual patients and their care will have to take preference over things that relate to freedom of information. Q140 Dr Whitehead: Ms Miles, as far as NHS hospitals are concerned, perhaps your hospital in particular, how prepared do you think your hospital is for full implementation by the starting date? Ms Miles: I think I am cautiously optimistic. We have obviously got our publication scheme on our website which is populated and we have going to the Trust Board next week an operational policy on how we are going to deal with individual requests within the Trust and then doing another awareness campaign across the Trust for staff because obviously enquiries come from all parts into the Trust in all different ways. We have had a project team going for about 18 months now on freedom of information. We have not had any additional resources, but what we have done is looked as to the most appropriate place for the responsibilities to be held and, for my own Trust, that is going to be with the Director of Governance who covers complaints and also works closely with the communications adviser. Q141 Dr Whitehead: A difficult question I know, but how typical would you say your hospital was with the NHS in general? Ms Miles: Well, it is hard to say from January onwards, but certainly during the first phase of the project I was impressed with the amount of enthusiasm. Every trust attended one of the regional workshops and went away with a CD-rom with the information of the model publication scheme and everyone achieved the deadline of 31 October. I think it needs to be set into the context that over the past few years there has been a lot of emphasis about making more open the decisions made at the trust. For instance, trust boards are held in public. A number of trusts have had quite active websites for a number of years where minutes of trust board meetings are put on those websites and trusts are used to dealing with the press and with complaints from patients. I think the area that we all need to focus on in trusts is about records management. Medical records management has been a real focus, but general records management is an area that I think we all need to work on in order to be able to ensure that we can deliver the information that is requested. Q142 Dr Whitehead: How concerned are you about the extent to which there may be different practices between different trusts and that, therefore, you may get, as a result of that, people coming back, say, to your hospital and saying, "Well, down the road they gave me this information and this form and you haven't done that at all. Therefore, you ought to do this"? Ms Miles: There are two mechanisms that will hopefully reduce that variation. One is that the questions on the information governance toolkit are quite specific and you have to answer them and give yourself a mark of one, two or three against these questions. There are very clear definitions on how you score a one, a two or a three, and that information is being looked at by the strategic health authorities so that they can see the individual performance of trusts and of trust boards as well, looking at their individual performance. Also at strategic health authorities, the responsibility for freedom of information is with the head or director of corporate affairs and with other projects they will be holding meetings with the designated leads in trusts and getting that exchange of information. Also there is the exchange of information through the website which is a very active freedom of information website and I think we are all going to be exchanging experiences over the first six months and I am sure that the press will make sure that if there is a variation between trusts, that is highlighted in the press as well. Mr Morris: I met at the end of last month with the heads of corporate affairs of the 28 SHAs to discuss where people felt this was at so as to get the local knowledge in their discussions with their local trusts and PCTs and yes, of course there will be some variations, but the use of networks is well developed in seeking to understand where we are with this, particularly between communications teams. What we decided at that meeting as we run into 1 January is that we put a little bit more resource at this point into the website because that is used widely within the NHS and we associate that with an e-based helpline so that people can actively have managed issues which they are coming up with on a day-to-day basis and we will continue that through into the early part of 2005 and see what the level of activity actually looks like, so there will be an additional piece of support which will enable people to compare what is the actual experience. It is very difficult to get a sense of how readily and quickly various users of FOI will be doing this because a lot of NHS information is already available in the public domain. Q143 Mr Soley: Can I turn to an area which I know you do not individually have detailed knowledge of, but it is this area of mental health and behavioural problems within the Health Service generally. I understand that in terms of individual patients you are covered by patient confidentiality, but where the behaviour is disturbed and potentially dangerous or, alternatively, where you fear the onset of mental illness, particularly certain types of mental illness, how would you communicate this within your organisation if you felt it was necessary for other people to know that information? Dr Grenville: Within primary care I think there are two elements here. One is what is required to help that particular person. If a referral is being made to someone else within the team, or indeed outside the team in the secondary care system, then the referral must give as much information as that person requires. It is in most practices' basic documentation where we describe to people (in our practice handbook, for instance) how information that we hold about you will be used that we say that when you are being referred to someone else as much information as that person requires in order to help you will be given to that person unless you specifically object to something being told to them. So to that extent, yes, if I were referring to a community psychiatric nurse I would give all the details. If I were referring to a psychiatrist, again, I would give all the details. When it becomes a question of public safety, if I think that someone may be so disturbed and they may be going to harm someone else then I have to make a judgment about whether I can breach that person's confidentiality or not. A particular instance that I have had to face is a man who had been prevented by the courts from having any contact at all with his children and who sat in the surgery saying, "I am very angry, I want some treatment for my anger, and if I do not get it I am going to kill my wife and my children." He seemed fairly genuine about that and the police were informed. One has to make that judgment. The bottom line for a doctor in that situation is that he may have to appear before the General Medical Council and justify that decision. Q144 Mr Soley: If it was a situation where you feared the onset of paranoid psychosis or something of that nature, which is often very difficult to tell in a person, what would you do in that situation, particularly if you wanted a second or third opinion? Dr Grenville: There are people whom you think are at risk of developing a psychotic illness for various reasons and one talks to those people and tries to explain what the problems are. Some people are receptive; some people are not. However, the actual onset of a psychotic episode is usually fairly clear‑cut and at that stage if a patient agrees to treatment that is fine, if he does not you have to consider the use of the Mental Health Act. In terms of someone who is at risk of developing a psychotic illness of whatever sort, there is very little that one can do in advance. They are not ill, they are not a present danger to anyone, it is really just a question of trying to build up some sort of a rapport with them so that if and when they feel that they are getting into difficulties they will come to you or if, as often happens, when the illness finally appears, they have no insight, when other people start coming to you, at least you can go to them and they know who you are. Q145 Mr Soley: I understand that but you are talking about treatment there or building up to treatment and what I am asking about is what you would record about such a person and how you would communicate that within the National Health Service? Dr Grenville: I would record that I had concerns very often about young people. I would record in their personal notes that they had a very flat affect or that their thought processes were slightly odd and that I was concerned that this person may in the fullness of time develop schizophrenia. I would not actually communicate that to anybody else unless and until I felt I needed help in the management of that patient unless I thought that that patient presented a danger to other people. If, for instance, I thought that someone presented a danger to another member of my team, perhaps the practice nurse, but that they did not have a formal diagnosis of a psychotic illness, I might just say to the nurse if she was seeing the person say for a dressing, "You need to be careful about this chap, he is slightly odd." It probably would not go any further than that. Mr Soley: Could I ask all three of you on a general area ‑‑‑ Chairman: --- We are running very short of time. Q146 Mr Soley: I am sorry, if I could have a quick answer to this. It is a difficult area but it is one we need to tackle. On this whole area of behavioural mental health, without going into details, do you think it does cause particular problems for the Health Service? Mr Morris: I think the simple answer to that is yes because these are judgments which are having to be made. I think we have certainly in the area of mental health significantly improved the communications and the protocols and policies for communications, particularly between agencies such as mental health trusts, the police, probation and social services, and I think the experience of the FOI project in terms of discussing this with a wide range of NHS bodies across England was to focus attention as much on the importance of patient confidentiality and data protection as it was on freedom of information and to reinforce the arrangements such as the Caldecott guidelines or the Caldecott Report in improving those, but it is a very difficult area. Q147 Mr Soley: Do you think we ought to re‑visit this? Mr Morris: In talking with professionals who are directly involved with secondary mental health services, I think that the honest answer to that would be at the moment they feel, from my discussions with them, the breadth of decision-making which is left to professional judgment is very wide. Having said that, and then in discussing that with the Information Commissioner, how to legislate that does not look at all easy. Q148 Peter Bottomley: My personal view is that I have very much more confidence in the way that health services are going to deal with data protection and freedom of information through having the publication thing in. If my doctor thinks I should not be driving and writes to Swansea and says, "You ought to check on this person", that is data protection if I asked for the information, quite clearly. If I asked my GP practice how many times they had written to Swansea in the last year saying one of their patients ought not to be driving, do you think that is clearly freedom of information and is it the sort of thing that could require a practice to search through all of their records? Mr Morris: I think I would take it in stages. Is the data readily available? Does the practice collect the data on a regular basis? If it does not I do not think ‑ correct me if I am wrong ‑ the Act requires them to analyse their own data further, so that would in a sense be the simplest response. If for whatever reason they were collecting that data, maybe they were doing research or something, then I think they would need to weigh whether the disclosure of that information would be prejudicial in terms of leading back to the identity of those patients who were involved. I do not think we have to make these things necessarily more complicated and we were very keen in the project to avoid this defensive "reach for your lawyers" response. In fact, doctors have been doing this kind of stuff a lot for many years. Dr Grenville: I would agree with that response. As a GP I would probably say giving you the actual answer to that question is very difficult but the real answer is about once in five or ten years. However, I would be much more careful if it was a newspaper reporter asking me the day after the front page had said "Epileptic man kills little girl on road". Q149 Ross Cranston: I just wanted to get a very brief view of your perception of the DCA. Dr Grenville did not know the DCA was involved so he can be excluded, but how do you think the DCA has gone about implementing this? Have you had very close relations? I think you, Mrs Miles, were on the Advisory Group? Ms Miles: My understanding is that the DCA did get involved in our regional workshops and when we asked them to attend they always sent somebody and they were very supportive and certainly it was useful on the committee to actually hear what other sectors were doing. However, I must admit we did get funding from the Department of Health for the central project and so our focus was on that and we were learning from each other within the sector. Q150 Ross Cranston: We heard about the turnover of staff. Was that a problem in terms of contact? Ms Miles: I personally did not find it, no, but there was continuity within our own project and so it did not really matter. As I say, they were very supportive of the regional workshops that we ran. Chairman: I am reluctant to draw this part of the evidence to a close but we need to because we have got some more witnesses. We are very grateful for your help, thank you.
Witnesses: Deputy Chief Constable Ian Readhead, Hampshire Constabulary and the Association of Chief Police Officers (ACPO) and Chief Inspector Paul Brooks, FOI Project Manager, Hampshire Constabulary, examined. Q151 Chairman: Mr Readhead, Chief Inspector Brooks, welcome. You have been very patient in listening to all the preceding evidence and we are grateful for the time you are going to spend with us this morning. Could I start by looking very quickly at what ACPO's general approach is and what it sees its role as in freedom of information implementation? Are your recommendations binding on chief constables? What is the role of the Prison Authority relative to yours? Deputy Chief Constable Readhead: ACPO is in fact an organisation established to assist in guiding chief constables. We are a company limited by guarantee. We have no right to enforce our policies upon any chief officer. Every chief constable is a data controller in their own right. What we seek to do is promulgate best practice and corporate policy across the service which hopefully drives through good efficiency savings and adds to the consistency that you would like to see in every force. Q152 Chairman: Did the Humberside experience of confusion about the Data Protection Act lead you to believe that you had to do anything differently in terms of making sure that chief constables were aware what the implications of a piece of legislation in this area are? Deputy Chief Constable Readhead: I suppose historically you could look at the Police Service and some cynics might say they represented 43 fiefdoms. I do not think that that is the case and has not been for some time. The ramifications of the experiences in Humberside clearly showed that in that particular force the interpretation of the Data Protection Act was extremely restrictive. You will know that all of the evidence given to Sir Michael Bichard indicated that data protection officers appeared to be actually removing intelligence from their IT systems. I do not think that actually represented the systems that existed elsewhere across the country. In fact some are very much at the other extreme of that. What it did indicate to the Service is that we have not in fact developed national processes whereby we can exchange accurate, relevant, timely information which will have a real impact upon the safety of the public, the way in which we carry out our disclosures under the Criminal Records Bureau, and of course at the end of the day to assist front‑line police officers in knowing the criminal activities of people who they stop on the streets. There is a tremendous amount of work now being undertaken under the management of the Home Office to deliver that and you are probably aware that Sir Michael intends to look at the progress we have made in December as a result of the recommendation contained in his report. Q153 Chairman: In learning from that experience, including the area of freedom of information, there are mistakes that can be made which are not always so drastic, but in some cases the actual disclosure of information in the wrong circumstances or the refusal to disclose information, if gathered together, might help public safety generally, although the same process is not being applied, are you confident that you can now spread good practice in time to get the show on the road in January? Deputy Chief Constable Readhead: Yes, we have worked very hard over the last two years with great assistance from the Information Commissioner's Office to ensure that we have corporacy across the service. I would have to say that this has caused a shudder through the backbone of some of my colleagues especially in Special Branch and in the Police Service in Northern Ireland for quite obvious reasons, but what we have tried to do is to communicate to them how we think the legislation will impact on their business, how they will meet compliance and how they can use the Act legitimately in order to sustain public confidence and public safety whilst at the same time being transparent and accountable as a public service. So we are confident that we have achieved the core aims of the legislation. Q154 Keith Vaz: If this Act had been implemented do you think we would have had the same problems in Humberside? Deputy Chief Constable Readhead: I think my opinion in relation to that is that it really does depend. I am not sure at the moment where the actual request will be focused. If it is upon personal data, well then, the legislation already exists under the Data Protection Act for individuals to get to know what a force holds about them. Freedom of information, as has already been said, is much wider, it is about the wider corporate policies of an organisation. I suspect it may well have honed chief constables' minds to the fact that they have to account to the public for the way in which they hold and share information across the piece. Certainly if I look at the moment at the compliance of my colleagues nationally there are some, even today, where I am having to go back and say to them, "You do realise on 1 January you are going to receive some requests. Your publication schemes at the moment are not fully compliant and there is an inevitability that you will not be able to keep secret some of the things which you feel are personal to your force. I just do not think that is the future regime." Q155 Keith Vaz: You mentioned the concerns of your colleagues in Special Branch. This presumably is because of the overall war against terrorism and the need to be able to keep information about terrorist suspects. Is this Act going to make it more difficult to keep that information secret? Deputy Chief Constable Readhead: No, I do not think so for one moment. There is a clear balance to be drawn here between the right of the public to know and the right of the Service to sustain public safety in general, and the legislation gives ample opportunity for us to be able to secure information and keep information confidential which would threaten public safety if it were exposed. I do not think that is the issue at all. Frankly, I think that within the culture of the Service and especially within some departments in general the concept of secrecy is one which means we should not say anything at all about the way in which we do our business. Frankly, I do not think that is sustainable. There are many things that you could say about the way in which the Special Branch carries out its business which would not prejudice public safety at all. Q156 Keith Vaz: In ACPO's opinion did the implementation of the Act from DCA from the centre start early enough? Deputy Chief Constable Readhead: Yes in my view it did. I would have to say up until we had compliance with publication schemes in June 2002 I thought that there was a tremendous energy coming from the Department of Constitutional Affairs. As has been said, I thought Lee Hughes was a real leader in this particular regard. I felt everything up until that time was very much on stream. As Maurice has already said, I think post that, whilst I am sure the Department was still fully committed to this, I do not think the turnover of staff has assisted us in ensuring that we actually develop some of the key areas which I think could have been matured under their leadership, especially things like the way in which we are going to procure nationally workflow systems, manuals of guidance, and training. All of these would have been, I think, very much within DCA's remit to ensure we could have driven through national corporacies. Q157 Keith Vaz: At what levels did you have your meetings? You seem to be painting a picture of a degree of chaos here in dealing with some of the departments. Deputy Chief Constable Readhead: Not chaos at all. I am simply saying that I think the turnover of staff did not assist the strategic development of the Act in the way in which we had seen it develop up until the publication scheme. As has already been said, I am sure that is not a failure in commitment at all. I think it is an inevitability when you are trying to drive through a business change process. If you have lots of different people come to it then the thrust and robustness of it can be lost and that is what I think actually happened. Q158 Keith Vaz: Were they individual meetings of the DCA or did you have the Home Office there as well, bearing in mind a lot of your work would relate to the Home Office? Deputy Chief Constable Readhead: I sat as a member of the Advisory Board as a whole and what we did was within the way n which we developed freedom of information in the Service we had the representation of the DCA on our executive board along with the Home Office and the Information Commissioner. Q159 Keith Vaz: So did you find that a consistent point of contact as far as dealing with the DCA was concerned? Deputy Chief Constable Readhead: We did up until the publication scheme but since that time we have tended to get a different representative come to each meeting that we had on a quarterly basis, and I sense that is where we have lost some of the guidance which would have been very useful. Q160 Keith Vaz: I understand that you had to take legal advice on certain aspects of the wording of the legislation. Deputy Chief Constable Readhead: Yes. Q161 Keith Vaz: Why did you do that? Why did you not simply go to the Department and ask for their advice? They have got enough lawyers there, I understand! Deputy Chief Constable Readhead: There are some elements of the Act which have certainly caused us some concern in relation to its interpretation. For example, the name and address of the applicants. We are not clear, and the legislation does not help us, whether that means somebody has to put their full name and address or whether it can be an e‑mail address. We had conversations with the Information Commissioner and the Commissioner took the view that an e‑mail address was sufficient. We had some concerns about that and sought legal advice. I have to say the likelihood is that the Information Commissioner is going to be right in relation to address but perhaps not right in relation to name. So if we get Mickey Mouse making an application to us we might take a view that could come from a vexatious applicant, and those are some of the balances we have to do. The other significant area is the public interest test. Just recently we have had advice through the Attorney-General's office which will, I think, reshape our view on how that test will be interpreted but it has come quite late to the way in which we would have wanted to develop and train our staff nationally in relation to this important area of judgment. Q162 Keith Vaz: You have got funding until March 2005, is that right? Deputy Chief Constable Readhead: That is correct, yes. Q163 Keith Vaz: How do you keep the rest of the 44 informed as to what is going on? How would Matt Baggott in Leicestershire know what Chief Inspector Brooks has been up to? Do you make regular presentations to ACPO colleagues? Deputy Chief Constable Readhead: Yes, it works through regionalisation. What we tried to do was to engage our colleagues in Scotland as well and we divided the country into six regions. Those regions meet on a frequent basis. We have created a national facility through what is called the Genesis database where all forces can come to one central point (operated through Hampshire) in relation to interpretation of the Act, and I have also personally briefed my colleagues at national meetings about the way in which the compliance strategy is being implemented and key things I think will impact upon them as chief officers. Q164 Peter Bottomley: Is the Compliance Toolkit a public document? Chief Inspector Brooks: Not at the moment but it can be and it will be, the same as the manual and guidance will be from 1 January made public. Chairman: Put in a request for it! Q165 Peter Bottomley: Do you think the Attorney‑General's guidance that the Deputy Chief Constable was referring to will be available under an information request? Chief Inspector Brooks: At the moment it is available to the Police Service. That is what the Attorney‑General has advised us. I cannot see why it cannot be. If a request came in that would be something we would have to take up with the Attorney‑General but there is nothing in there that would be damaging ‑‑‑ Q166 Peter Bottomley: I am not absolutely certain you would have to take it up with the Attorney‑General. Under the Freedom of Information Act I could take it up with you. You have issued the toolkit and it sounds a competent way of doing things and probably very helpful to the Police Service. What feedback have you had and are there lessons that have been learnt from it? Chief Inspector Brooks: The toolkit, up to the point of the publication scheme, was made up of a lot of advice from the DCA which we corralled together and the feedback was good and that is how all forces agreed to sign up to the one publication scheme. A benefit of that was that record management was a key area and that kicked off a number of other projects that the Service was obviously lacking but we are now trying to challenge that and do some Service‑wide work to save money and be consistent, so it has had a number of knock‑on effects. Q167 Peter Bottomley: But beneficial? Chief Inspector Brooks: Absolutely. Q168 Peter Bottomley: Do you think you will need to revise the guidance as experience develops and how is that going to be likely to be organised? Deputy Chief Constable Readhead: We mentioned earlier on the ramifications of the investigation and Sir Michael Bichard's recommendations. The Service will now look across the piece in relation to how we are going to implement a number of codes of practice. These will cover data protection, freedom of information and a number of other areas of police business, and what is important is that there is a common template within the manuals, so I think it is likely that our manual will need to be reshaped quite early in its time‑frame and have a public‑facing statement as to how the public can best use the process itself and also an inward‑looking process so that officers at all levels understand what their obligations are under the Act, and that will be consistent and required under the code of practice. Q169 Peter Bottomley: People should not be too worried that it takes 350 pages to compile a guideline to the Manual of Guidance? Chief Inspector Brooks: The manual is there for a purpose so that when you get a particular request in a particular area you just go to the index and that will help link you across to a) what the legislation says, b) the guidance coming from the ICO or DCA, c) what ACPO say, and d) what the force standing order is in relation to that. That is what the whole purpose of it is. That is for the actual practitioners who will be applying the public interest test, so a small number of people. Q170 Peter Bottomley: The basic message is that the co‑operation between the ACPO organisation and the Information Commissioner's Office and the DCA has been very helpful. Deputy Chief Constable Readhead: Yes it has. Building on what Paul said, it has always been very important to us that if Widow Jones who lives in Dorset makes an application to Hampshire, Thames Valley and to Dorset that she can reasonably expect a common process, that there is consistency and transparency in what we do. That is why the manual is developed as that so that those who are decision makers should be interpreting things exactly the same way. Q171 Peter Bottomley: And helpfully? Deputy Chief Constable Readhead: And helpfully, yes, sir. Q172 Mr Soley: Across the 44 police forces can you give us some guidance as to how many you think are ready for this Act, how many are nearly ready, and how many are not ready at all? Chief Inspector Brooks: I attend every regional meeting including Scotland and I get advice from their project managers. The project managers who raise concerns will be reported back to the board and Mr Readhead will actually write to the chief constable. At this moment in time I would say we are quite compliant in all forces but there are some forces which are very much ahead of others. Everyone is aware and everyone has a publication scheme and everyone is publishing. Q173 Mr Soley: Are there any which give you cause for concern that they will not be ready? I am not necessarily asking you to name names at this stage. Chief Inspector Brooks: There was one about four months ago but we have just recently been over and visited them and they have come on leaps and bounds in relation to a lot of areas. Q174 Mr Soley: Generally speaking you are fairly confident that most people will be at least up to speed on 1 January; is that right? Chief Inspector Brooks: Yes. Deputy Chief Constable Readhead: We have trained 350 decision‑makers nationally. We have put in place all of the structures that we think are important for them to be able to comply with the legislation. You will know that we put in place a framework agreement which 28 forces have actually signed up to in relation to procurement of workflow systems so there is significant commitment of people and resources and we have encouraged chief constables to structure their organisation so that there is one manager over data protection and freedom of information, which again seems to be best practice in the way in which you should manage applications under this process. Q175 Mr Soley: You will have heard my questions to the Health Service people about behavioural problems. Again thinking essentially of how you record it and transmit the information, as opposed to factual information such as court convictions in your case, have you got worries or do police forces have worries about how they do that? Chief Inspector Brooks: I think the way we deal with individuals is the same as the Health Service in that we are very keyed into how we deal with individuals, how we record data and how we transfer data and where it is required. We are pretty good at that part of investigations. Pretty much the same as the Health Service, I do not think our records management for the overarching policies and procedures is as good. So I have no concerns about particular areas in the core business of policing but in how the business is run it is far more difficult to get your hands on to that data quickly and easily within the time constraints of the Act. Q176 Mr Soley: So it is access and not recording that is your concern? Chief Inspector Brooks: Yes. Deputy Chief Constable Readhead: It is access that is an issue. Of course, many of the things that we recorded historically were not recorded with freedom of information in mind so in my force for the Paulsgrove riots, which as you know were very much about paedophile offences, all of the documentation still exists in relation to those issues. My guess is that there may well be some access requests come in from local newspapers because it is still a very topical issue. What we have got to do then is look carefully at how we access documents and how we release them. I suspect that it is those historical, major incidents that will present us with some real complexities as we go through the process of release. Q177 Mr Soley: Does that make individual police officers nervous about recording data? Chief Inspector Brooks: There is a concern, and we have learnt lessons from overseas, that people will generally try to either not record it or they will put it on yellow Post‑it notes and try and dispose of it at an early opportunity. That is certainly a message we have put across to all forces and officers within leaflets and things like that: "Please carry on business as usual. We do not think this Act is going to cause us too much concern because there are enough exemptions in there to cover our core business". However, it is getting that message across to the actual police officers doing the recording. Q178 Dr Whitehead: One of the things I think that has come out of your submission and what you have said to us today is the theme of avoiding duplication and repetition. How far do you think that has been achieved in terms of the approach of the force generally? Deputy Chief Constable Readhead: I think we have tried to achieve it within the Service itself. I have mentioned, for example, we try and use the power of our leverage in relation to procurement of IT solutions that will help us with this business end and we have also logged into Centrex to deliver national training so where we have been able to be corporate we have been. I just sense that we have missed a trick. If you look at what is coming out of the Gershwin review and the Office of the Deputy Prime Minister in relation to the wider public arena and how public services can act more collaboratively in procuring solutions, we probably have not done that as effectively as we should have done. Q179 Dr Whitehead: Do you think perhaps on the board at public sector level the position that you have depicted within the police force is not so advanced? Deputy Chief Constable Readhead: Yes I do think that that is the case. We found that when we have looked at data-sharing and we have gone to other organisations who we share data with. We sense that they are pretty under‑developed in relation to their compliance strategy. Of course you have heard from the Health Service that they are well advanced, as are other colleagues, so my honest answer to that is I think it is still a bit patchy if I am honest with you in some of the public service areas. Q180 Dr Whitehead: Do you see your level of ironing out issues of duplication and repetition as something which might effectively resist what has been described in the ACPO submission as the "divide and conquer" problem? That is requests to several different forces which can then be, as it were, fed back to the original receiving force for more information. Do you see that as a method of bounding the information that is provided or as a method of securing full compliance? Deputy Chief Constable Readhead: What we are particularly concerned about, and we have seen this in New South Wales in Australia, is what are called "mosaic" attacks. What they have experienced there is for example a Right Wing group made 30 separate requests for information on paedophiles. Each request in its own right did not reveal that much but when you put all 30 requests together what it revealed was the source of the intelligence. We have already been receiving access requests from a variety of bodies which touch upon all forces and where unless we have a common national response I think there is a real danger that the Service could get divided. I will give you a good example of the recent ACPO decision that officers should not be members of the BNP, which has caused a lengthy request to come from the BNP about how we come to those conclusions, all e‑mails at all levels up to and including the Home Secretary. It seems important to me that we should manage that centrally and in this particular case Matt Baggott was in fact the lead for ACPO on that particular issue and so we had a co‑ordinated and single response. I think it is important that the Service does speak with one voice on critical issues such as this, which is why I think it is necessary for us to have those national structures in place for us to co‑ordinate requests of that type. Chief Inspector Brooks: You were asking whether it would be secrecy or out for publication and the whole idea of the referral process is where you have six or seven requests going to six or seven different forces asking for the same thing that is when we will corral those six or seven forces to come up with a general answer. They will answer for themselves as a separate authority; we will not answer on their behalf. It pushes boundaries of why should we not publish this, how do we employ the public interest test? What you end up getting is full disclosure from each force, "I agree this is how far we will go because of the danger so that we can apply those exemptions with care." It is more about getting consistency rather than one force releasing very little and another force releasing everything, it is everyone releasing to the point where we all see in the public interest that is where we should release to, and that is the difficulty we have across the 44 forces because they all do the same job. Q181 Dr Whitehead: There is a further extension of that issue and that is of course you share data with partner agencies and you are giving them data, they are getting data to you, and you may then get requests for information that has been used and processed by you but actually belongs to a partner agency. How do you secure the sort of level of disclosure and the effective working of that, bearing in mind that structure? Chief Inspector Brooks: I think Mr Bottomley's viewpoint was exactly right. I will go back to the Attorney‑General's office and ask but it is my decision. We have got to put in place a system so that everyone is aware that where you are getting data from other sources you have to go and ask, "What are your concerns? Give us the dangers and we can then consider that," so we get informed decisions rather than I am looking at this with no prior knowledge. It is that sort of factor we are putting in place to try and get some protocols locally so people we do share with have that in place and we are signed up to it to say we will go back to hear your concerns about why we should not disclose. Q182 Dr Whitehead: When you say you are putting in place protocols does that mean that they are not in place? Will they be in place for the going live and what role has the DCA been playing in this? Deputy Chief Constable Readhead: We are presenting a paper later this month actually to the Advisory Board in relation to data sharing. The world has changed significantly since Sir Michael Bichard's report and there is an acknowledgement that probably between Police Services and Police partner agencies we have not shared data to the extent that we ought to. I sense that the pace has changed slightly between the wider interests of the public and public safety vis‑à‑vis the rights of the individual to privacy and so in our paper we actually encourage methods by which we think data‑sharing should take place. There are protocols already in existence but we think they need to be widened. The important point ‑ and this again goes back to Mr Bottomley of course - is we have the Attorney‑General's advice but it is for us to decide whether or not we release it because we have it. We will still of course talk to the Attorney‑General but that is the way in which the legislation works, so clearly as you share things with your partners you do so in the full knowledge that if they get asked they will decide whether or not they release that information. Q183 Chairman: That brings us to another point which was touched on earlier. In your written submission to the Committee you suggested that millions of pounds of taxpayers' money could have been saved if the Department for Constitutional Affairs had provided essential information a bit earlier for the procurement of a workflow system for the logging of FOI requests. Did you raise those concerns with the DCA at the time? Deputy Chief Constable Readhead: We have said for some time since I have been attending those meetings that we thought there was potential to do a number of things through their office - a manual of guidance, training, and procurement of IT workflow systems. It may well be that they simply are not constituted to try and do that on behalf of the public service but nonetheless I think that there was a real opportunity here to drive down costs. There are only about six suppliers of these kinds of solutions and clearly they are going to maximise their potential for profit as they supply to a variety of different public agencies. I would have thought that against the backdrop of a really thought through framework agreement, perhaps procured through the OGC, we could have potentially saved the public purse some money here. Q184 Chairman: Was the DCA not listening to you or was the person you told then moved on to some other job and nobody given responsibility for responding? Deputy Chief Constable Readhead: I do not think the idea was grasped at the time. I sense that in some places we have managed to influence but it does go back to that requirement that you have got to have people who can get hold of an idea and see it through, and inevitably we would get to the next meeting and the personnel had changed again. I never sensed that we were locking in strategically to get those kind of concepts actually accepted and implemented. Chairman: Thank you very much indeed for your evidence. We are very grateful for your help today. |