UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1060-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT
Tuesday 19 October 2004 COUNCILLOR PETER CHALKE CBE, DR LYDIA POLLARD, FAITH BOARDMAN and KATH MATLEY RICHARD THOMAS, GRAHAM SMITH and PHIL BOYD Evidence heard in Public Questions 185 - 299
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 19 October 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Ross Cranston Mr Clive Soley Keith Vaz ________________ Witnesses: Councillor Peter Chalke, CBE, Vice-Chairman, Local Government Association, Dr Lydia Pollard, e-Government Strategic Advisor, Improvement and Development Agency, Faith Boardman, Chief Executive, London Borough of Lambeth, and Kath Matley, Association of Greater Manchester Authorities, FOI Coordinator, examined. Q185 Chairman: Good morning, Councillor Chalke, Dr Pollard, Ms Boardman and Ms Matley. May I welcome you very warmly. Perhaps I should explain that Councillor Chalke is Vice‑Chairman of the Local Government Association, Dr Pollard is the e‑Government Strategic Adviser of the Improvement and Development Agency, Ms Boardman is Chief Executive of the London Borough of Lambeth, and Ms Matley is the Freedom of Information Coordinator of the Association of Greater Manchester Authorities. Have we got that right? Cllr Chalke: That is correct. Chairman: We are very grateful to you for coming along this morning, we are grateful for your help and we look forward to hearing what you have to tell us. Q186 Mr Soley: I would like to ask you about the implementation that has been chosen by the Department of Constitutional Affairs, which is the big‑bang approach on day one. I would like to know a little more about your views on that as opposed to continuing with a steadily expanding Freedom of Information Act where you take a part at a time. Do you have a view? Cllr Chalke: In an ideal world I think we would prefer to have a gradual approach. One of the problems is that it is only yesterday we heard about the fees. We are not sure about the size of the problem. We do not know how many enquiries we are going to get. We do not know whether there will be a peak in the first month as people find it is available and make enquiries. Sometimes people do that maybe to test the system to see if we are ready. A lot of local authorities have done a lot of preparation and it has cost a lot of money over three years to do that. I do not think anyone would say they are totally up and running. We will have to wait and see if the number of enquiries warrants computer equipment and a records system. I do not think anyone is at that stage. So there will be a lot of manual searching to start with, but as we see the number of enquiries we will be putting in more electronic methods and eventually electronic retrieval will be very much easier, but where there is manual retrieval I think we will face some problems. In the early days the 20 days may be difficult to achieve. Ms Matley: I think we agree with that view. We also feel that because we have been referred to cases abroad - we have been referred to Northern Ireland for case histories, we have been referred to Canada - we have no real local government experience and we found that a difficulty when training our staff. We would have liked to have trained staff on exemptions and given real experiences and we have not been able to do that. Q187 Mr Soley: If the disadvantage of not having a big‑bang approach is that the information might be in more than one place, ie it might be with a health department which might not be chosen to be in on the partial release, would that not make it impossible to do that effectively either as a service to the public or, for that matter, as a relevant experiment in building up the experience? Ms Boardman: I think that might apply in a minority of cases, but I think in the majority of areas that we cover we would be relatively self‑contained. Q188 Mr Soley: I sense from what you are saying and from Councillor Chalke's introductory comment that in a way your concern is the number of days that you have got to do it at the beginning, is it not? Ms Boardman: I think certainly our experience is that where we do not have fully automated systems yet that may be a problem given the size of the database that we will have. An added issue there is the difference in timing between the three types of legislation that we are going to deal with, including obviously the existing Data Protection Act. In training terms that is something of an added confusion this time. Q189 Mr Soley: If I asked you what the main problems lying in wait for local authorities on this were, clearly whether or not you have got the right computer is one. What else would you say the main problems were? Ms Matley: I would say we have got a question mark over finance. Within local government we have not had any resources for additional staff but we have had to bring in additional staff, we have also got tracking and monitoring systems and we have also had to provide training resources. Resource has been one big issue certainly in Greater Manchester. Q190 Mr Soley: Another way of saying that is to say that it is just about quality of management, is it not, management delivering what it needs to deliver? Ms Matley: I would disagree with that. We have had to appoint officers in eight out of ten cases to deal with the Act and to take it forward. Q191 Mr Soley: According to survey results from earlier this year, only 4% of local authorities expected to be ready by 1 January. How much do you expect to be ready now by 1 January, and why has preparation for compliance proved so difficult for you? Cllr Chalke: The IDA have done quite a lot of work on surveys and so I think I should hand over to them. Dr Pollard: I think when they said 4% they meant being fully compliant in terms of having a records management system, in terms of having logging and tracking systems and complaints systems in place and that is why the vast majority of authorities said that they did not feel they would be ready. The majority still feel that they will not have records management systems in place by then. I think they feel that somehow they will be able to deal with the enquiries but that they will have to do it manually. So their main concern is the time that it will take them to do it manually and the resources they will have to put in. Q192 Mr Soley: So you think the vast majority of local authorities will be ready but that they might not meet the time deadlines because they will have to do it manually rather than by computer driven systems. Is that your biggest single concern? Dr Pollard: Yes. Q193 Mr Soley: When you say the vast majority, are you talking about 90% or 80%? Dr Pollard: I would think 100% will aim for it. My guess is that 90-95% will make it. Q194 Mr Soley: I would hope 100% aim for it. Do you think it realistic to say that the vast majority will meet that? Dr Pollard: I think they will meet the enquiries. If they are complex enquiries which require information from several different sources and not a single service then I think they may struggle to meet the 20 days. Q195 Mr Soley: Am I right in assuming from these answers that you would actually welcome an extension of the time limit, which might be a better way of dealing with the big‑bang approach from your point of view? Is that right? Cllr Chalke: I think what we are saying is that some flexibility around the time limit of 20 days would be better rather than local authorities just finding they have not got the resources to be able to service that time limit to start with. The ambition will be to get everyone to do it within 20 days, but there are complex enquiries which can be difficult. Q196 Mr Soley: So you would like an extension of the time limit, would you? Cllr Chalke: We think we should have flexibility on the time limit in the initial stages. Q197 Mr Soley: What do you mean by that? Flexibility can be anything, can it not? You could say it should run to the end of next year or something. Cllr Chalke: I think we need to be practical. Q198 Mr Soley: What is practical? Cllr Chalke: I am saying that there should be some flexibility because I am not sure that we know the size of the problem. It may be that we only get one or two enquiries that week and they can be easily serviced, but, on the other hand, at the start of new legislation there is always those that want to test the legislation and so we may see a considerable peak in the beginning which will overwhelm a small local authority who, after all, also have to be supplying services and do not have spare manpower just waiting for a number of enquiries that they do not know about. I would suggest something between 20 and 40 days would give a comfort zone, but obviously all local authorities will try to keep to the 20 days. Q199 Mr Soley: You cannot have flexibility defined, that would be a licence to ignore the Act in fact, so you must have a time limit. Would it not be right to say, given you have had four years knowledge of this Act, why should you not be ready? Cllr Chalke: It is a matter of what have we been ready for? Q200 Mr Soley: The Act. Cllr Chalke: Only a very short time before the Act comes into place we have now seen a speech from Lord Falconer on the fees. I would remind you that we also still do not know the fees on the Licensing Act. We have been preparing, but if Government had prepared earlier and let us have the information earlier it would have made life a lot easier. Ms Boardman: I think we have had about three problems on this. The first is a practical one, which is the nature of a local authority's business, because we provide something like 300 different services. The records management is legitimately different in that it is governed by statutes between all of those different services. I think we are peculiar in the public service in terms of the complexity of the services that we do and that certainly knocks on into issues like IT. We are moving reasonably swiftly in our case from a situation where we have had no IT in some services, very old IT in others and more modern even further, but there is a business need which all local authorities are tackling to join those systems up and modernize them. That is a very big issue and takes several years. As that comes through then I think the practical position will ease considerably. The second issue that I think we have had in practical terms is the understandable difficulty in getting guidance out to us. Obviously, in terms of actually setting out the detail of the processes and procedures and indeed the detail of the training, we do need to have that guidance in front of us. Very often, because of the timetable that we have been trying to follow, we have received them when we were part‑way through doing that phase of the work and they have proved useful, but often it is as a check‑list in terms of what we have been doing rather than being there at the start of each phase. I think those would be the practical reasons I would flag up in addition to the fees and charges point. Q201 Mr Soley: Can you give me an indication about the interface between data protection and the Freedom of Information? Secondly, is it not true to say that local authorities over‑estimated the problems of data protection and they might be doing the same with FOI? Ms Matley: I have a number of joint working groups and I have come across that point from one or two members of the group who feel that we did prepare for data protection and when it actually came to it there were not as many cases. I think these are different data protection requests. Basically we have had to do quite intensive training to make staff aware of what the requests will look like, whether it is environmental information, Freedom of Information or data protection. Dr Pollard: With the Data Protection Act there was a lot of preparation and a lot of investment put into it and then very often they did not get the number of enquiries that they thought they would get. As a result of that some authorities have been quite cautious about how much they should invest for Freedom of Information because we have virtually no information about how many enquiries they are likely to get. If you are talking of implementing an electronic records management system, you could easily spend £250,000 on such a system. If you are a small district authority then that is an enormous sum of money and so before you would invest in anything like that you would need to be sure that you were getting the right number of enquiries to justify implementing such a system. So it has had a knock‑on effect on Freedom of Information. Q202 Mr Soley: And the interface between the two? Dr Pollard: The interface to me is quite clear in that they do not --- Q203 Mr Soley: It is not a problem for you, is it? Dr Pollard: No. Q204 Mr Soley: Would everybody agree with you that there is not a great problem between the interface and data protection? Ms Matley: We have got to give special training on the interface between data protection and Freedom of Information in order to recognise that structured files and unstructured files are different. I think we will have to work on that and that is what we are aiming to do. We have got a training session dedicated to that. Q205 Mr Soley: For Manchester? Ms Matley: Yes. Q206 Chairman: The Local Government Association made much of the resources problem and about local authorities not having the money or personnel to tackle this, but surely that is true of all the public bodies that have this responsibility. Part of the argument Ms Boardman advanced, which is an interesting one, is that there is a wider diversity about local government services and it is greater perhaps than the health authority because you are covering a wider range of services. Is that not the same problem for everybody? Cllr Chalke: Yes, but I would have to remind you that the Deputy Prime Minister has made very clear that local government should not have extra duties and responsibilities without the money to follow it. I suspect that, having heard him say that only on Friday at the Central Local Partnership, we have now seen the benefit of that advice coming out in the announcement yesterday from Lord Falconer, but that is only from April onwards and we have just heard from others here that £1/4 million is the cost of the electronic records management system that is needed. For a large local authority that is a large part of their budget and we have the setup costs which have been considerable over the three years and the initial start costs will not be covered by that extra grant which is available from April onwards. So we will be asking authorities to tell us what it has cost with a view to giving that evidence to the ODPM for a reflection in some reimbursement of the funding that we have incurred so far. Q207 Chairman: Could a small local authority not reach its requests without a new records management system, however desirable that might be and have access to their records in the normal course of enquiries they receive from the public? Surely the lack of an electronic records management system should not prevent them from having access to files they have to use in any case. Cllr Chalke: Electronic e‑government is an expensive proposition. I know my authority has spent billions of pounds in order to be able to do their business electronically more effectively. When you are very short of money and you are looking at social services and overspends on social services, education and such things, it is very hard to go to the public and say we are going to spend £7 million on an electronic system. You do not get much sympathy for that. There have been some grants from Government to get it started. We are all doing that investment over a fairly long period. This has brought it to a head, the fact that there may be an urgent need if there is a high volume of requests for information and they may need to bring forward those plans and spend more money in the shorter term than we expected. Q208 Chairman: I was thinking of a small district like Dr Pollard mentioned where I recognise it would be a very big capital investment. The quantity of records is smaller and the degree of familiarity with those records should be greater. Dr Pollard: You have still got the range of services. The issue is whether you are going across a range of services. It may be possible for them to do it. We do not know how many enquiries under FOI they are going to get and that is a big question. If they only get a few then they should be able to do it. If they are inundated with requests then they will not be able to cope with manual systems. A lot of them have held off to see whether they need it. The Code of Practice implies that they should have a records management system as well. There is an implication that in order to comply with Freedom of Information you should have a records management system, but in practice they may be able to get away with it. Until they know the level of enquiries that they are going to get it is very difficult to say. Q209 Ross Cranston: May I come back to the question of fees that Councillor Chalke raised. I take the point that it is only yesterday that we got the figures, but I am just wondering whether this is really the same as licensing. My borough council needs to know whether it is going to get a couple more enforcement officers to go out and do the work, so fees are quite important there, but here you have had to do the work in any event and so fees are not really determinative. Is that a correct assessment? Cllr Chalke: Yes. Q210 Ross Cranston: How is the guidance going to help? Is it going to determine how you do the work? Cllr Chalke: No, but it is symptomatic of the way we are being prepared. Very often the information we need has not been forthcoming as quickly as we may have wanted it. We do have to prepare ourselves as part of this for a charging regime. For us not to know until a few weeks before what that charging regime is to be able to set up a system of collecting the charges is unnecessary because it could have been announced months ago. Q211 Ross Cranston: I take that point. Were you really relying on the fact that you had been able to charge for work that would have cost more than £50 as opposed to the figure that they have now chosen, which I think for you is £450, is it not? Cllr Chalke: That is right. Q212 Ross Cranston: Were you relying on that in terms of your plan? Cllr Chalke: In our preparation we need to know what we are going to be able to receive in income from this. The fact that it is acknowledged that there may be cases over £450 I think acknowledges that there may be many cases which are close to that and that is a considerable expense to local government. We are reassured that we are going to be reimbursed for that, but I wonder whether anyone has done the calculations as to how much money that does entail. Ms Boardman: Until we know the level of demand it is actually very difficult to answer your question properly. There are a couple of issues to mention. There is the amount which we have already invested, which is now sunk cost, which I think would take a great deal of demand in order to recoup. Let me give you an idea of that in our case. We have had a 16 person project team working on this for three years. Three members of that project team have been full time and for some of the others it has been a substantial part, though only on a part‑time basis, of their duties. We have had to train 4,500 staff. The opportunity cost of that in terms of taking them away from their normal duties is probably the equivalent of something like ten or 12 man‑years in the run up to the introduction of this and there will obviously be ongoing training costs. Q213 Chairman: Are you talking about one authority? Ms Boardman: Yes. We then also needed to take full cognisance of this, as we have been doing, in our IT. In the main we have tried to minimise the additional cost on that because we did start this three years ago, at a time when we were beginning to put serious investment into the e‑government agenda and it is one which Lambeth is actually very keen on in business terms and service terms and it has been a high priority for us. We have probably spent certainly an additional £200,000 or so over and above what we would have done for business and services reasons and if you were starting more from scratch then obviously it would have been bigger. All those are sunk costs which I am not clear are being taken account of in this announcement, though I have not had the benefit of looking at it in full. Ross Cranston: I am not sure that we are able to understand it either. There is a separate point in that under section 13 of the Act it says that if the cost is beyond a certain amount the regulations could provide that you do not have to provide the information. I am wondering whether the £600 is actually that figure where this provision kicks in. So we are puzzled by that. I accept the point about sunk costs. Q214 Chairman: Surely you cannot have assumed at any stage that the income from fees would be significant given that there was going to be either a low fee or no fee for some of the most common types of inquiry and given what you have said to us several times, you could have no idea how many requests you were going to get and so it was not safe to make any assumptions about income from fees, was it? Dr Pollard: One of the issues about not having information about the charges actually relates to setting up your procedures for handling the enquiries and also the training of staff. If the fee was set at something like £10, as under the Data Protection Act, most authorities do not bother to charge for that, it is not worth their while, but if you are allowed to charge more than that then it becomes more worthwhile, but then you have to set in place procedures for collecting that money and also training staff so that they know when to ask for the money and there are also things like the clock ticks until you have received the money, so it has a whole lot of issues related to training. That is one of the issues to do with the lateness of the information about charging, it is not just about recovering the costs. Ms Boardman: At this stage we have largely completed our training and this will be an additional thing which we will have to go back on. Q215 Keith Vaz: What practical guidance would your members have liked to have received that they have not received? Ms Matley: We would have liked more guidance aimed specifically at local government, we would have liked more guidance on section 12(a) of the Local Government Act and obviously more guidance on fees. Q216 Chairman: Can you just explain the point about section 12(a)? Ms Matley: Consultation is going on at the moment on that and obviously it affects the local authorities in that there are 15 exemptions within section 12(a) which affect local government and they are affected now by the Freedom of Information Act. The consultation is quite late on this. Q217 Keith Vaz: What sort of training do you think the DCA or the ICO should have given? Ms Matley: The training that we have given within Greater Manchester has basically been in‑house training. We have purchased e‑learning packages and we have done in‑house training based on the guidance that we have got from the DCA and from the Information Commissioner's Office. Q218 Keith Vaz: So the packages are from whom? Ms Matley: We have purchased them as a consortium from a private company because we could not wait for the guidance to come out from the Government. So we are pretty advanced with our training. We began with cascade training very early on. As a consortium we have had the e‑learning package and now we are into in-depth training for those people who will take the decisions, which is obviously based on the exemptions, and we need to bring the fees into that. Q219 Keith Vaz: Dr Pollard? Dr Pollard: In terms of guidance, the comments that I have had back from a number of authorities have been that the guidance that has been provided tends to be at a high level and too legalistic. We would like something that is in plain English and more directional as well, something telling authorities specifically what they need to do, almost a step‑by‑step guidance to implementing Freedom of Information. I believe that in the NHS, for example, PCTs were given a lot of very specific guidance and something like that would have helped for district councils, particularly where they do not have specialist staff and to get up to speed does take some time. Q220 Keith Vaz: As far as the public is concerned, the reputation of local government is not that great ‑ I am not talking about your individual councils, obviously they are the exceptions ‑ as far as providing information is concerned. Do you think this creates even greater responsibility on local government to be able to provide information accurately and quickly? I have been writing letters to a council trying to get some hedges cut down for the last six weeks and I cannot find who is responsible in the council for cutting down these hedges. What makes the public more confident that you will be able to provide this information? Cllr Chalke: My own council is Wiltshire County Council. We perceived that problem a few years ago that. I am amazed to hear that an MP cannot get a response. I have to tell you that you would have had priority in my authority and you would have had a response within days. It is the general public that we must worry about. We found that the worst thing was the phone was being answered but then you were passed from person to person and no one ever got to the right people. Our aim is that you make one phone call and within that one step you get to speak to the right person who is going to be able to answer those queries. I think all local government has become aware of its customer focus and it needs to be doing that. All this electronic expenditure is about is being able to achieve that. The Local Government Association will be persuading as many members as possible to take that course. Q221 Keith Vaz: Do you not think that the effect of the legislation on the public is that they believe that you will now respond quicker and that you will provide better information for them, even though it may be nothing to do with who cuts the hedges in Leicester? Does this create a greater responsibility on yourselves? Cllr Chalke: Obviously it will create a greater responsibility. I think responding to enquiries is something different to asking about what information is held, but the very fact that you have more access within the council to information means that we should be able to respond to those enquiries more quickly. I would like to think that the Leicester experience that you have had is an isolated one and not the norm. I believe that in most cases local government does want to be more responsive. I think there is a perception that people cannot get information, but I am not sure that is always the truth. Q222 Keith Vaz: Are you clear which aspects of the Act are going to be implemented by which government department, and are the responsibilities of central government to the DCA and the other agencies clear to you or is there still confusion? Cllr Chalke: The DCA is the lead department on all of this and any reporting or monitoring will be back to them. Q223 Keith Vaz: So if there are any problems you get in touch with the DCA, do you? Cllr Chalke: That is as we understand it, yes. Q224 Keith Vaz: And they ring back immediately or are they at lunch, or ill? Ms Matley: I do not know about that. I get in touch with the Information Commissioner's Office because I find that I get good practical guidance from there, it is often slanted towards local government and I find that an easier source. Q225 Keith Vaz: Is it quicker or more efficient than the DCA? Ms Matley: For me personally, yes. Q226 Keith Vaz: You would choose the DCA, would you? Dr Pollard: I would choose the ICO for similar reasons. I have had comments back that getting through to the right person within the DCA can be difficult and getting a response that is meaningful to them can be difficult as well. Q227 Keith Vaz: Tell us about a 'qualified person' to assess the exemptions under section 36(5). Your submission talks about the delay in deciding who this great qualified person is. Why is the decision needed so quickly? Cllr Chalke: We need to set up a system so that we know that the person who is the qualified officer will be trained and ready to take the decisions. At this moment we suspect it may be the monitoring officer. It cannot be too difficult to nominate who that is. Those sorts of things could have been done so much earlier on in this and would have made life easier. Q228 Keith Vaz: Who is dragging their heels? Who is not providing you with this information? Cllr Chalke: It is the department's job to nominate that officer. We are not getting the information, so it has to come back to the DCA. Q229 Keith Vaz: What practical difficulties does this place you in if you do not know who this qualified person is? Cllr Chalke: The monitoring officer is already very busy and we have to find the time to train people and to get them up to speed on the legislation. This is the area in which there will be many challenges. What we think is exempt might not be exempt in other people's eyes, so this could be a difficult process in some cases. Q230 Keith Vaz: So you needed this decision yesterday, you should already have been told. Cllr Chalke: More than yesterday, we should have had this decision months ago. Ms Matley: In my area the monitoring officer is part of the appeals system. If he is going to be the qualified officer there is a conflict of interest, so we are going to have to change the appeals exemption. I think that is the main issue for us. Q231 Keith Vaz: Presumably, because you represent local government through your various organisations, you carry weight with central government and you meet the relevant secretaries of state very frequently. You had Geoffrey Filkin there until recently, so you had a mate in the centre of Government. Have you met ministers to discuss this subject? When was the last time you would have met a minister or the Lord Chancellor? Cllr Chalke: We are on the Lord Chancellor's advisory group, the LGA, so we are in the process there. Q232 Keith Vaz: Have you met him or a minister to discuss your concerns, because clearly you have a lot of concerns judging by what you have said? Ms Matley: I represented the Local Government Association at the last but one meeting. Q233 Keith Vaz: The last but one meeting of the advisory panel? Ms Matley: Yes. Q234 Keith Vaz: Does the Lord Chancellor come? Ms Matley: Yes. Q235 Keith Vaz: And you raised these concerns then? Ms Matley: Yes. Q236 Keith Vaz: Did you get a satisfactory response? Ms Matley: It was just heard at the meeting. Q237 Chairman: You also said in the LGA submission that there is a continuous stream of guidance coming from six Government bodies, the Information Commissioner, the DCA, the Office of the Deputy Prime Minister, National Archives, Defra and DfES, which seems uncoordinated and appears on six websites on a drip-feed basis. In addition to that you have got an outside commercial concern because the advice was insufficient to provide a proper basis for training. That is a pretty desperate situation, is it not? Cllr Chalke: First of all, we are being asked to co‑ordinate electronically all our departments so that we can respond. I do not believe it is beyond the wit of man to have some coordination across those six websites so that at least you can get some consistency and we know which one to go to straightaway. Ms Matley: I think that is true. We have to network with other authorities, but because there is advice coming from different sources and certainly from different mailing sources as well as those that you have mentioned we do have to trawl around the systems. Q238 Chairman: Do you find differences in the advice? Ms Matley: Yes, in some areas. Q239 Ross Cranston: We have heard some talk about the fact that some public authorities want a centralised logging of requests to avoid duplication and possibly overcome the 'divide and conquer' approach as well. Is local government intending to have some sort of centralized logging system? Cllr Chalke: We have no plans at the moment to centralise to the Local Government Association any monitoring or that sort of thing. We believe that each authority should be doing its own process, but there may be cooperation. There is cooperation between counties and districts and, as we have heard, between ten Manchester authorities, but we believe that this is an area which the Local Government Association should not be involved in at the moment and that local authorities should make their own arrangements. Q240 Ross Cranston: What about the situation where one local authority is more open and more sympathetic to requests than others, are you going to be discussing that and trying to bring that particular local authority back into line? Ms Matley: Yes. We will continue to work on this certainly for the next two years. We are currently developing a secure portal and we will be able to use that to highlight cases and we will have regular case assessment sessions. My position as Joint Adviser on Freedom of Information for Greater Manchester means that I will sit on some of the appeals within Greater Manchester and I will be able to co‑ordinate issues from there and to liaise with the Information Commissioner as well. Q241 Ross Cranston: But that is only within the northwest, is it? Ms Matley: Yes. Ms Boardman: Within London we are not doing it as a consortium. There have been regular meetings as we have gone through the process to share experience and to try and get best practice and we do envisage that sort of relationship continuing with the equivalent of Ms Matley. Q242 Ross Cranston: Is that done at a national level? Dr Pollard: No. We have set up a discussion forum and we have put sample answers and questions on there as they come up, but it would be done on an information basis for people and the networking would be an informal network. Chairman: Thank you all very much indeed. You have told us a great deal this morning. Witnesses: Richard Thomas, Information Commissioner, Graham Smith, Deputy Information Commissioner, and Phil Boyd, Assistant Information Commissioner, examined. Q243 Chairman: Welcome back, Commissioner, and welcome to your colleagues. Mr Thomas: Thank you very much. We are delighted to be back here again. We were with you in May and we are happy to take your questions this morning on this issue. Graham Smith is my Deputy and Phil Boyd is the Assistant Commissioner dealing with FOI work. Q244 Chairman: Thank you very much indeed. What do you make of that then, confusion and uncertainty as to who is responsible for six websites? Mr Thomas: I think there are concerns about any imminent deadline, but I think it is a mistake to think that everything happens on D‑Day, i.e. 1 January 2005. That will be the start of requests being received. I have made it very clear that I have statutory functions and that I cannot be tolerant of those public authorities who have not taken advantage of nearly four years to get ready. My job is to adjudicate and to adopt a quasi judicial role in the handling of complaints. I very much recognise that I have the responsibility for giving as much guidance as possible as to the approach I will be taking. A lot of my effort in the last couple of years has gone into the preparation of guidance from my office as to how we will be undertaking that particular responsibility. On our website now we place 24 different items of guidance. I have here the various guidance papers which we have made available and there is still more to come. As we speak more material is being placed on our website on a regular basis. We have to take care with the preparation of our guidance. What we say carries a great deal of weight because clearly we are the independent statutory body concerned with implementing this regime. We have consulted very extensively with relevant organisations in the preparation of the guidance. I do not think I would ever want to give any impression whatsoever of complacency, but I think it is a mistake to think that we are heading for any sort of major difficulties. Q245 Chairman: What is it that you are not responsible for? We have heard about six organisations being involved in possibly giving conflicting advice. What can you say is nothing to do with you or do you have to monitor all of it to see if it is consistent? Mr Thomas: I do not think we are there to monitor as such, Chairman. I have very explicit responsibilities under the Act under four main headings: the promotion of good practice, the handling of complaints and a quasi judicial role in dealing with dissatisfied requesters, there is the overall enforcement responsibilities where if we believe, for example, a public authority is not adopting good practice then we can either serve a practice recommendation, or, if there is evidence of systemic failure, we can serve an enforcement notice. We have very clear and explicit statutory responsibilities. We have to stick within that sort of regime. Q246 Chairman: The DCA have said to us that "the department is focusing its resources on central government ... responsibility for the wider public sector falls to the Information Commissioner". Mr Thomas: I do not think that is an entirely fair way of putting it. We were aware earlier this year that some bodies were alleging that there was some confusion as to the collective responsibilities of my office and of the department. We did sit down with the department and draw up a document, which we have submitted to you with our written submission, which records very clearly the different responsibilities and we spelt out in there, as I have just summarised to you this morning, what our statutory functions are. That does record that the department has seen itself as giving the lead on giving guidance to central government departments. They have overall responsibility for the statute itself, for the secondary legislation coming forward under the statute and on giving guidance to central government departments. We have to give guidance to all public authorities. There is no distinction drawn in the Act between central government and other public authorities. So the guidance that we are giving, particularly guidance on exemptions, applies right across all public bodies caught by the Act. Q247 Ross Cranston: Richard, last week we had Maurice Frankel before us and one of the points he made to us was that there has been a real turnover of staff at the DCA. I think he said that there were three directors and then two acting directors of the division in charge of this and, of course, you get the normal rotation of ministers. He made the point that that had made it very difficult in terms of implementing FOI. What is your perception of that? Mr Thomas: I do not think I should be drawn into the staffing matters within the DCA. There has been a turnover. On the other hand, we have had almost the same Secretary of State and Lord Chancellor on all occasions. Lord Filkin has been in most for most of the time that I have been Information Commissioner. I have already established a dialogue with Baroness Ashton who you are seeing next week. The Director of the Constitutional Unit, Andrew McDonald, has been in post for almost the whole of the time that I have been the Commissioner. He has a strong personal background in FOI, but he was previously at the Public Records Office and The National Archives. So I think there has been continuity, but, at the same time, I would not want to disguise from this Committee that we have had some frustrations with these aspects. I think we are particularly concerned at some of the delays in bringing forward the secondary legislation. Having said that, I was with the Secretary of State yesterday in Newcastle when he made his announcement about fees and I have to say that perhaps it was worth waiting for because I was raising my concerns about fees for a very long time. I have been articulating two very, very clear principles: first of all, that the fees regime must be as simple as possible for all concerned, both for public authorities and for my office in interpreting disputes about fees; and, secondly, that the fees regime should not act as a deterrent to ordinary members of the public in bringing forward requests. Subject to seeing the small print of the regulations, the announcement made yesterday was very welcome and worth waiting for. We have raised issues about fees on a number of occasions. It surfaced in very robust form at the last meting of the advisory committee. I wrote to the Secretary of State in June, I met him in July and there has been a lot of activity over the summer period and although it is late in the day, there is no doubt that the result has been worth waiting for. Q248 Ross Cranston: I would echo that, although it is late in the day. Let me ask you about this issue that Mr Vaz raised earlier about the exemption provision. Who is responsible, the DCA or is it ODPM? I think you make this general point that within central government it is sometimes a bit difficult to identify which particular part of it is responsible for implementation of specific parts of the Act. Mr Thomas: I understand the point, but I do have to be very careful. My independence is paramount. I suppose you could see me a little bit like the football referee. The referee has to make sure that the rules of the game are followed out and enforce them appropriately. I am not sure it is the referee's job to go into the relative training rooms and make sure that everybody is fully trained and ready for the match. We do have responsibilities as to how we are going to interpret the rules. Q249 Ross Cranston: Why do you think there might have been this misunderstanding about who had the particular responsibility? Mr Thomas: I think this is in danger of being considerably over‑played. You heard from the previous witnesses that on the one hand there is not enough guidance available and on the other hand they are being bombarded with guidance. Q250 Ross Cranston: They did tell us that some of it was contradictory. Mr Thomas: I am not sure we have seen any examples of that. We have taken enormous pains to consult and to make sure that our guidance is authoritative. We are going to be the ones who are deciding on complaints and so people will take our guidance that much more seriously and we have taken great care to articulate our message. DCA has been giving guidance to central government departments. There is some draft guidance which we have seen, which I think the DCA is going to publish fairly soon now, which looks at this in great detail. Perhaps one of the problems is that there have not been coordinating bodies, for example, for local authorities in the education area and in the health area. You heard from the police last week that they are very well prepared. ACPO, the Association of Chief Police Officers, has taken that lead; it has given guidance to all police forces and seems to be very much on top of the game. Q251 Chairman: What did you think of their claim that had some decisions been taken earlier and more coordination taken place a lot of money could be saved with common IT systems? Mr Thomas: I think it is perhaps unfortunate that it has taken quite a long time to reach some of these decisions on matters of secondary legislation, but I think that is a matter which you will have to put to the department when you see them next week. Q252 Ross Cranston: ACPO told us about the Lord Chancellor's advisory panel which, as I understand it, you co‑chaired and they were fairly critical of it. I do not know whether you have got any particular view about that? Mr Thomas: Perhaps my colleagues will say more about it. I inherited the joint chairmanship of that. I think there was a little unease when that was set up that we might get too close to Government. We have to maintain our independence. I think the advisory committee has been quite useful as an information exchange. Having said that, at the last meeting there were 23 people round the table, but we did cover quite a lot of ground. Let me give you some examples. We talked about records of management standards coming from the National Archives, we heard about the consortium in Greater Manchester which you have been hearing about this morning, we talked a great deal about police guidance and training, the local government network in Northern Ireland, the Department of Health support for independent practices, problems with the Millennium Commission, there were various discussions about workload projections and a very robust discussion about fees that I mentioned earlier. That is just some of the items which were covered in a single meeting the last time the committee met. I do not think it is very much more than a useful information exchange but I think it has served a purpose. Q253 Ross Cranston: The terms of reference included items like monitoring progress, identifying best practice and advising on the needs of users. Has it met that particular goal? Mr Thomas: I think, with hindsight, those have been rather ambitious terms of reference. I think it has performed a rather more modest role. Mr Smith: I think one of the issues here is in relation to the nature of the public sector and its diversity. This is a fairly unique piece of legislation in that it applies across the whole of the public sector, from the largest government departments to individual practitioners in the Health Service. The statutory obligations on them all, as public authorities, are not any different and our role and responsibilities to all of them are no different. I think there is a link back to the previous question with respect to the role of other government departments. The health practitioners, the people in the Health Service are used to dealing with the Department of Health, schools and academic institutions are used to dealing with the DfES and, as we have heard this morning, local authorities are used to dealing with the OPDM. The DCA has had overall responsibility for this legislation, but they, I think you would find, you must ask them next week, would be the first to admit that they do not have expertise with regard to what goes on in detail in all of those different sectors as to what their needs are, hence the requirement or the perceived benefit of an organisation, like the Advisory Committee, to co-ordinate those activities. I think then you have seen it coming through in terms of some of the guidance, as you heard from those involved with the health sector last week and with the police sector, where they have all gone about with the implementation of freedom of information in their own sectors, taking account of their own particular needs, so they have all produced guidance which is relevant for their own sector on their own websites because they know that is where people who are going to be looking for guidance are going to look for it. One extreme example was that we heard last week that one representative from the health sector was not aware of the Department for Constitutional Affairs' involvement, but I think my view of that would be: does that really matter, as long as the appropriate information in order for him to discharge his responsibilities under FOI is getting through? Q254 Ross Cranston: So indirectly you are saying that the Advisory Committee did have beneficial effects because, even though it might mean, for example, that they maybe did not develop best practice, it provided some sort of incentive for others to go away and look for best practice? Mr Smith: It was certainly able to be a useful information exchange to understand what was going on and what the issues were in each different part of the sector, also how they were being addressed, and I think that has been a theme which continues. In relation to the qualified person, for instance, although this has been highlighted as an issue for local government, it applies to all public authorities. The issue is that without the identification of the qualified person, certain parts of the public sector, like local authorities, cannot actually use the exemption under section 36, and that exemption is where there is prejudice to the effective conduct of the affairs of the public authority. However, the DCA are working with the ODPM and my latest understanding is that it is the ODPM who are going to be asked to designate the qualified person in local government rather than the DCA. The Act is silent and that is a machinery-of-government issue. I think the uniqueness of the freedom of information in spanning the whole of the public sector has actually led to a number of the issues that you have been hearing about in this inquiry. Q255 Chairman: It is a fairly fundamental point which was raised, we understand, two meetings ago in the Advisory Committee and still has not been resolved. Two meetings ago I presume is well back in the year, in the spring or early summer, I guess, I do not know. Mr Smith: Yes, and in the meantime we have certainly been encouraging and have been instrumental in bringing the DCA and the OPDM together on this issue. Chairman: We will ask them about it. Q256 Keith Vaz: Mr Thomas, I am astonished at your complacency over what has been happening over the last few months. You presumably have been following the proceedings of this Committee, have you? Mr Thomas: Indeed. Q257 Keith Vaz: You have been looking at the evidence on the website, et cetera? Mr Thomas: Indeed. Q258 Keith Vaz: You paint yourself as a kind of Mother Teresa figure about all the disputes between local government and the DCA. The fact is that there are real problems. I am looking at my brief prepared by our officials where they talk about your vision: "He has put openness for public bodies and respect for personal information at the heart of his vision for the organisation". Now, presumably you have still got this vision and you have looked at the proceedings of the Committee and you know that a lot of groups, the police, local authorities and others, are very, very upset over the way in which this matter has progressed. You come to this Committee and you tell us that with the Lord Chancellor in Newcastle, you welcomed what he said about fees, but can you point to a single letter that you have sent to the Lord Chancellor, expressing the concerns that have been raised with you over the last 12 months over the implementation of this Act? Can you point to one document that says, "I am frustrated, I am concerned. These issues have been expressed to me"? Mr Thomas: You have raised many points there, Mr Vaz. I do not think that we are complacent and I do not see myself as a Mother Teresa figure. I do see myself as having statutory responsibilities which I have to take very seriously. I have to make sure my own organisation is fully prepared for the demands which are placed upon us. I am not aware of any criticism which has been seriously levelled at my organisation. I think we are seen, in the language you just quoted, as an open, transparent and helpful organisation. That phrase which you quoted comes from our corporate plan which sets out our vision of reorganising ourselves in various ways. I have indicated frustrations with the level of preparation. I had regular meetings with Lord Filkin who has been the Minister until quite recently responsible in this area and I have raised some of the concerns with him. I had a meeting with Lord Falconer in July and I wrote to him in June, and I have a copy of my letter here with me. Keith Vaz: And that letter expresses your concerns? There is a letter where you say you are not happy with what ---- Q259 Chairman: Is that a letter you are happy to let us have? Mr Thomas: I have to be a transparent and open Commissioner. Q260 Ross Cranston: Otherwise we would make an FOI report! Mr Thomas: You would make a request, I am sure, but we wrote specifically to the Secretary of State on 24th June following up the various matters and making particular concerns about the charging regime and saying that that was the one area where we were very aware about concerns. I am paraphrasing now what I said, which was that I made it very clear what I wanted, that I was looking for an early decision and setting out my priorities in terms of simplicity and it not being a deterrent for members of the public. Q261 Keith Vaz: That is about fees, but, you see, what worries me is that Mr Smith comes before us and he says, "The poor old public sector, they are used to dealing with the Department of Health and they don't really understand what's going on". In fact you paint yourself, if not as Mother Teresa, then as a referee. There you are in the middle of the pitch, you reach for your pocket book, somebody has made a complaint and people are very unhappy. We have very senior police officers here telling us that in effect millions of pounds of taxpayers' money has been wasted by some of this process. What do you do? Do you issue a yellow card? How do you, as the great referee, say to the Lord Chancellor and the Department for Constitutional Affairs, "This is not what the public expect"? Surely that must be part of your remit as the referee? Mr Thomas: No, I am not a referee. Q262 Keith Vaz: You must be able to express a view? Mr Thomas: I am not a referee on the conduct of central government. I am a referee on dealing with individual requests where someone has made a request for specific information. They come to my office with a complaint that their information has not been disclosed and we are then in a quasi-judicial role as an independent statutory body accountable to Parliament for making sure that we discharge our functions in considering that request, so my priority has been to make sure that we and the public authorities understand how the Act is going to work. One of the points that I have been very, very keen to get across is the benefits of this legislation. We have heard rather a lot this morning and last week about the burdens, but we have heard not enough, in my view, about the benefits. Q263 Keith Vaz: Mr Thomas, we know about that. I am sorry to interrupt and nobody wants to stop you talking about the benefits, but I am talking about the process. This Committee is concerned with the process of implementation and that is what has occupied us in this inquiry. We are not concerned with the benefits. A Liberal Chairman has been trying to get us to implement this Bill for goodness how many years, so we know about the benefits. We want to know about the process. Mr Thomas: But, with respect, this is a matter of enlightened self-interest for the public authorities themselves. The benefits should be there. If you look at virtually any website of any public authority, they will say these days, "We are an open and transparent body". We have heard a lot about public bodies claiming that they have not had enough support, but I think one has to ask the public bodies themselves, "What are you doing to get ready?" because they are the ones who have, if you like, to live within this framework, but to a large extent doing what they should be doing already. We heard a lot about records management, so are we seriously saying that public authorities do not already know where their records are and have not got sufficient systems in place to handle their own records management? If you like, the Freedom of Information Act is no more than a sort of extra driver to get themselves properly organised in the handling of their own filing systems and their own records. Q264 Keith Vaz: So it is their fault? Mr Thomas: I am not saying it is their fault. I am not sure that it is right to start talking in terms of fault or blame. I do not wish to sound complacent, but I am not of the view that everything is as black as perhaps you were suggesting just now because I do not think it is all doom and gloom. All the messages we are getting are pretty positive. We carried out our own surveys of central government and of local authorities last year and we shared the information, the results with the Committee in May. We did write a further letter to all local authority chief executives just a couple of weeks ago to put a third sort of prod in their direction, but I have a total of 33 staff dealing with FOI at the moment, a very limited range of people, with over 100,000 public bodies; we cannot go around making sure that each of them is fully prepared. All we can do is send out general messages of encouragement, exhortation and try to do everything in our power and resources to get this Act working as from the beginning of January. Q265 Peter Bottomley: Why is the guidance on exemptions still in draft form? Mr Thomas: Most of it is now on our website. Are you talking about our guidance or the DCA guidance? Q266 Peter Bottomley: Well, those who are going to implement the Act need both. Mr Thomas: Well, our guidance is largely in final form. Having said that, we may want to make some adjustments after live running in the light of actual cases. There are still one or two items in draft or which are being finalised. I can only speak for our guidance, but it has been through a long process of consultation with relevant organisations. On national security, for example, we have been in extensive discussions with the Ministry of Defence. On the guidance on prejudice to commercial interests, we have talked to various organisations concerned with government contracting and the like. In an ideal world I would have liked to see our guidance a little bit sooner, but I do not think it has been seriously delayed. The DCA guidance is targeted very much on central government departments. That has been in existence as a draft now for two or three months, but I think that is really a question for them next week as to its current status. Q267 Peter Bottomley: Has it always been reasonably clear where the boundaries are, where the overlap or the underlap is between the two groups essentially putting up the exemption guidance? Mr Thomas: There have been suggestions over the last year or so, but it has not been as clear as it could have been and that is why we sat down in May and drew up an absolutely clear document setting out for ourselves and for all interested organisations exactly what the powers and functions were. Q268 Peter Bottomley: Has there been any slippage? Obviously it is open to you to say because the public sector bodies concerned are involved in the consultation on the draft exemptions and they are not having things from them, but has there been slippage? Mr Thomas: We are a little further behind, two or three months, than we would have liked to be on some matters, so we are not as up to speed as I would like us to be, but I do not think we are seriously behind. Mr Boyd: I think that within a fortnight we should have published advice on all of the exemptions and a number of other matters in the Act. Perhaps I should explain that we are publishing two sorts of advice. There is a series of awareness guidance which is stuff which is addressed to public authorities. Also at the same time we are developing some more detailed internal guidance, and primarily internal guidance should inform the work of our case-handling when we deal with complaints so that as and when we develop that, we will also publish that on our website as an exercise in transparency, so the public authorities who want to see the more detailed guidance working to ourselves will have that available, but the programme of awareness guidance is largely complete. The other thing I would say is that we have also had input into other people's guidance and perhaps it was an omission, but it was a little odd that the local government people who were on before did not mention the, I think quite good, guidance on implementation that was published by the Local Government Association earlier this year and we worked quite closely with them on that. That in many ways is our approach on the sectoral guidance. We have worked with ACPO, we contributed towards their guidance, we worked with the Public Audit Forum where we had input into guidance which was being prepared for public auditors, so there is that other element to the programme of guidance which we have been carrying out. Q269 Peter Bottomley: Is it likely that the final allowable-for-revision exemption decisions are likely to end up going for more openness or for more exemptions? Mr Thomas: I think you have put your finger on one of the issues. I am concerned with getting as much information into the public domain as possible. The whole structure of this Act is a presumption in favour of disclosure and people look to 23 exemptions and they think it is all about keeping information hidden, but I think what people have perhaps failed to appreciate is that 16 of these exemptions are qualified exemptions which means that even where the exemption applies, you then have to look at the public interest test and determine whether the public interest in disclosure outweighs the public interest in the particular exemption. We have commissioned a great deal of research on how the public interest test has been applied in other jurisdictions. We asked the Constitution Unit of University College London to compare the experience in Canada, Australia, New Zealand and the Republic of Ireland with that of our own Parliamentary Ombudsman and that has been very helpful to us in articulating how the public interest test has been applied in other areas. We have put the whole of that on our website and we have gone on to articulating our own approach to these public interest considerations, so we have tried to put as much emphasis as possible on the presumption of openness and I think that does, to a certain extent, mean that we do not want to be sort of over-generous with advice on the exemptions. We have got to interpret the exemptions as they are set out on the statute and we have done that, but if everyone focuses purely on the exemptions, then there is a risk that there will not be as much disclosure as there should be. I have stood up at many conferences over the last 18 months or so and said, "Don't start with the exemptions. Start with your commitment to openness and see the benefits for you as an organisation and only go to the exemptions if you have really got what I would call 'crown jewel' material which really cannot be disclosed and you have then got to bring it within the terms of one of the exemptions". Q270 Peter Bottomley: But when the draft exemptions become the exemption guidance, will this require much change to public bodies' publication schemes? Mr Thomas: Well, I think one point which is gradually getting across is that publication schemes can provide a very good means of avoiding some of the burden of the legislation. The more that a public authority puts into its publication scheme, which in effect is automatically an exemption from disclosure, the more satisfied everyone is going to be. I think that message is getting across. We have plans to put pressure on selected public authorities to upgrade their publication schemes. Q271 Peter Bottomley: Do you want to tell us which ones? Mr Thomas: I do not think we have identified any yet, but we are obviously looking at some of the early candidates for upgrading, but I think publication schemes have been a bit of a sort of Cinderella of this legislation. We are pleased that I think every public authority now has got an approved publication scheme, so we have gone through that entire process, and yesterday the Lord Chancellor himself was giving some good examples of what now is coming out on a proactive, voluntary basis, like the MRSA figures for hospitals, the submission of his own department to the Senior Salaries Review Body for judges' salaries, all that sort of information coming out on a more voluntary basis through the mechanism of the publication schemes. The police gave a recent example at the Advisory Committee. The police told us then that they are getting more enquiries about speed cameras than any other subject put together and they have responded to that by now giving guidance to all police authorities to put some frequently asked questions about speed cameras into their publication schemes, and I think these are all good examples of this legislation already having a very beneficial effect. Q272 Chairman: When you approved all these publication schemes, did you apply the test: "Does this scheme increase the amount of information available to the public over what would have been available before?"? Mr Thomas: No, we did not and perhaps Graham will say a bit more about that. Mr Smith: What we did was we said to them in our guidance that they ought to be publishing more information than was already available. When they were submitting their publication schemes, they were required to complete a form which asked them whether, and what, additional information was made available under their publication scheme which previously had not been put into the public domain, so that was one of our criteria, but given the size of the task, it was not possible for us to cross-check each and every instance of that. The way that we approached the approval of publication schemes was very much getting all public authorities, if you like, on to a first base, and we took that view particularly given the timetable for implementation which the Government by then had announced, that publication schemes would be phased in sector by sector, but that the individual rights would not come in until the "Big Bang", as it has been described, on 1st January 2005. From our point of view, this piece of legislation has been put together as a coherent whole and the experience on requests will inform what a public authority needs to put into its publication scheme, so we saw the initial round of publication scheme approvals as getting authorities on to first base, but that they would then get into the way of putting more information out proactively, and then there is a later stage where they will see the benefit and perhaps the demand for more information once individual rights have kicked in. It is for this reason as well that we used the provision in the Act whereby the Commissioner can put a sunset clause into publication schemes, that approval would be time-limited initially for four years because we felt that after four years we would have completed the cycle of having 12 months' experience of requests being processed and that would inform the next round of approvals both for public authorities, but also for ourselves because we certainly do not have a monopoly of information about the information that public authorities hold and which they can, and should, put in their publication schemes. Q273 Chairman: So at this stage it was sufficient to have a scheme? Mr Smith: Largely, yes, which met the basic statutory requirements. Q274 Mr Soley: Can I return for a moment to the issue of local authorities, and this was picked up from some of the questions Keith Vaz asked you. You seemed to give the impression, Mr Thomas, that the local authorities might have been painting a bleaker picture than you feel is reasonable. First of all, have I interpreted what you said correctly? Mr Thomas: Certainly we have not been made aware of major concerns within local authorities. I heard what was said this morning and I know that they have had considerable anxieties about resources, and I think they were clearly very pleased with what was said yesterday about resources being made available, and I think that perhaps has been one of their priorities, to fight that particular battle. We have had good relationships with the Local Government Association. My colleague, Phil Boyd, mentioned just now the very considerable work we did with them on the practical guidance which was published, I think, in April of this year, so that has been in existence now for some time. They must speak for themselves, but we have not been made aware of any major concerns on their part. Q275 Mr Soley: So were you not aware of the problems they were having between computerised and manual records? Mr Thomas: Well, yes, I have heard this point made, but there is nothing in the legislation which says, "You must put in place electronic records and document management system". That has been seen for many, many years now as good practice. It has been stimulated further by the Government's e-government initiative and I think in most cases the FOI legislation has simply been seen as another reason, as it were, to go down this particular road, but I think in the vast majority of organisations, they would be going down this road in any event, but some are further down this road than others and there will be inevitably a mixed picture, as the legislation goes live next year, with some authorities having virtually everything under electronic control, others having almost nothing under electronic control and some having a rather more mixed picture. That is true inside my own organisation. Q276 Mr Soley: Were you aware of the difficulties they were having in training people on the distinction between data protection and freedom of information? Mr Thomas: We are very much aware of the importance of training in this area. I am responsible, as you know, for both data protection and freedom of information. Both are about access to information and both are about good information-handling. We have been doing data protection now for 18 years and there were some concerns at the outset and sometimes still some rumbling concerns about the burdens it imposes, but for the most part I think it is a regime that delivers good results and works reasonably well in practice. There is a little concern now that it will not always be easy to distinguish between an FOI request and a data protection request. It may not matter a great deal in practice because as soon as you recognise which it is, then you either have to provide the personal information under the Data Protection Act or the more general information under the Freedom of Information Act unless, in either case, one of the exemptions applies. I think one prediction I would have is that in fact a lot of people will think that they are making a request under the Freedom of Information Act, but in fact it will be a request for personal information and, therefore, will be a data protection request, but the regimes are not as completely harmonised as I would like them to be. For example, there are different time limits, but they are pretty close in practice. One is 40 days and the other is 20 working days, so in practical terms they come quite close to each other, but I would not pretend to you that it is an ideal, harmonised situation. Q277 Mr Soley: I understand that, but my question in a way is whether you are aware of the difficulties they were expressing on that issue? Mr Thomas: Yes, that is a matter which we have had extensive discussions about with many public bodies, not just local authorities, but right across the public sector and they have raised that point. Q278 Mr Soley: But, from what you are saying, local authorities are saying, "We've got more problems here". Now, one interpretation of that is they are over-fearful of the problems, which is what you seem to be implying, or the other one is that maybe they are right. Mr Thomas: I think they are somewhat over-fearful, but I think everyone is having enormous difficulties, including myself, at predicting the volumes of casework. That, I think, is the number one concern that I have. We do not know how many requests are going to be made to public authorities, no one can say for sure and we ourselves do not know how many of those requests are going to turn into complaints to my organisation. We commissioned some research, we looked again at regimes all around the world and we published again all of that research on our website. It is helpful, but not by any means definitive because there is no country which precisely matches up to the approach we have in this country. In most of the other jurisdictions, what we would call the Data Protection Act is actually within the Freedom of Information Act, so it covers both personal and governmental requests in the same legislation, so that is one difficulty in sort of separating out the two streams for ourselves. Q279 Mr Soley: Do you think some of the difficulties that local authorities were describing are down to the fact that they themselves, or maybe the chief officers on many occasions, do not give the commitment to freedom of information because they cannot make a judgment about what is going to be involved? Mr Thomas: That may be a factor, but Councillor Chalke just now talked very much about the benefits of freedom of information. He said that over the last 20 years or so local authorities have become a great deal more customer-focused, and I recognise that and I welcome that. He talked about the need to be more responsive. It seems to me that providing your citizens with good information about how you operate is fundamental to the good management of any public authority. Q280 Mr Soley: But that is different in a sense. I understand your argument and I agree with it, that freedom of information in a way reinforces good practice, I understand that, but that is slightly different from being in tune with a law which you are obliged by law to fulfil. Mr Thomas: I do understand the distinction, but I think it would be a mistake to over-emphasise that distinction. I am extremely keen at every opportunity to stress the benefits of this legislation and I say to every public authority, "You've got a fundamental choice: you can embrace this legislation and you can make the best of it and really make sure that it delivers your agenda of being more open, or you can be dragged kicking and screaming into this and you can fight every case and come across as a resistant, closed and secretive organisation". I quote the evidence which was published recently by the Committee on Standards in Public Life which revealed that the public now regard the telling of the truth by politicians and senior officials as a more important matter than not taking bribes. That is an astonishing finding, but that is what the public are feeding back to the Committee. The Committee's sort of headline on that is, "The public are now concerned more about spin than they are about sleaze", and I think that that plays very strongly to the freedom of information agenda because this is all about rebuilding trust in public bodies and, as someone said this morning, local authorities do not enjoy the best reputation with their public. I, at every opportunity, am urging them to embrace this and I think getting the spirit of it right frankly, in answer to your precise question, would be more important in the short term than absolutely complying with every last detail of the legislation, so I am putting the emphasis on the spirit of this and we will do our best to help them get it right. Chairman: As it has been raised, I am advised that I had better declare an interest, that my wife is a member of the Committee on Standards in Public Life. Q281 Mr Soley: Do you have some sympathy with the view, not just by local government people, but others as well, that in the early stages of the operation of this Act it may be beneficial to have a 40-day deadline instead of a 20-day deadline for a limited period of time? Mr Thomas: I think everyone has been working on the assumption of 20 days; it is on the face of the statute. There is the power to vary that, but I think at this late stage there has not, to my knowledge, been any discussion with me, the Government has not come to me ---- Mr Smith: There is provision in the Act for the Secretary of State to make regulations extending the time limit beyond the statutory 20 working days up to a maximum permitted of 60 working days. I understand, I have been informed by the Department, that there has been a consultation within Whitehall just in the last six months, I could not put it more definitely than that, asking the departments whether they wanted to suggest that in certain circumstances that 20 working days should be extended. I understand that a submission has been put forward to the Minister and some draft regulations are being formulated, but my understanding is that that was an exercise purely within central government and I am not sure whether the Local Government Association were consulted or not, but my understanding is that they were not. We have not been formally consulted. There is a provision in the Act which states that the Commissioner may be given discretion to waive the time limit and the discretion has to be given in the regulations. We have not been consulted about that specifically, so our understanding is that there is no proposal to give the Commissioner the power to waive the working day deadline within these regulations, but I understand that there may be some regulations between now and 1st January, but I am sure the Department would be able to enlighten you on that. Mr Soley: Are you sympathetic to that as a proposal? Q282 Chairman: Can I just clarify what that means, as far as you know. Are you envisaging a situation in which it might be 20 days still for local government and 30 or 40 days for central government? Mr Smith: As I understand it, nothing as generic, if you like, as that has been suggested. It is only in very specific circumstances that there might be a deadline, but one example which is perhaps not controversial of itself, although one might ask whether it might apply to others is school holidays. Each governing body of a school is a public authority for these purposes and the 20-working-day time limit applies to them as it applies to everybody else, but during the summer months schools tend to be closed for around about six weeks, so a request technically could be made and received, but there would be nobody to deal with it or process it and the time limit has expired before they go back for the autumn term. Q283 Mr Soley: Is this not the case for being a bit more flexible in the early days of the Act, that there will be difficult periods and rather than try and identify all of those examples, such as school holidays, for example, it might be better to have the flexibility to say that in the first six months or whatever of the operation of this Act, a 40-day one is possible maybe on referral to the Secretary of State or whatever, but something of that nature which provides a safety valve for the unpredicted and difficult cases? Mr Smith: I think there are different ways that this could be approached. The first would require either regulations or a variation to the primary legislation because the 20 working days is in the primary legislation, so we are looking at least at secondary legislation to change this and I understand that there may be some secondary legislation coming. I think the other area though, which authorities have raised with us and I understand it has been raised specifically with you by one authority, is that people are questioning what action we will take for a technical breach where the 20 working days have been exceeded, but, as the Commissioner has explained, we do not have a discretion as to whether or not we investigate a valid written complaint made to us. There are four circumstances in the Act where we can: one is where they have not exhausted the internal appeals procedure; one is where there has been undue delay in making the complaint to us having had the response from the authority; another is where the complaint is either vexatious or frivolous; and, finally, it is where the applicant has withdrawn their complaint to us, so those are limited circumstances. Otherwise, we have to consider the complaint and we have to issue a decision notice, so if there has been a technical breach of a 20-working-day time limit, there is no question about it, the determination almost makes itself, but the question then is what we are going to do about it. Authorities seem to be concerned that we are going to impose some dreadful sanction on them and issue some adverse publicity, that they have failed miserably in achieving their statutory duties. That is the area where we have some flexibility and some discretion. We have to look at each complaint on its own merits and it would not be appropriate, I would suggest, for us to say that there is no need to worry about a 20-working-day time limit, but if there were genuine reasons as to why it has been difficult for them to comply with the 20 working days, then our investigation will find that out and that is the way that the Act is structured. It will then be that we will discover whether there has been a genuine problem because of the nature of the request, because of the complexity, because the information is held in very different places, or whether it has simply been that they have not trained their staff and they would not recognise a Freedom of Information Act request if they fell over one. Q284 Chairman: And if it is the latter? Mr Smith: If the latter, then I suggest that we would need to be much more directive and that we would be more likely to use our enforcement powers, having first discussed with the authority what the issue is, having made sure that they are properly informed about the requirements of the Act and to give them a chance to comply because I think, as was suggested by one of your Members earlier, we go into this assuming that there is goodwill and that public authorities want to comply and that if they fail to comply, initially it will be out of ignorance or for some very good practical reason rather than a wilful refusal to comply. Q285 Mr Soley: I want to be very clear about this because it is your view as an organisation that I am interested in. Am I right in concluding from what you have just said that you would not favour an extension, say, to 40 days and what you would rather do is put the Act into effect and where there was delay for good reason, you would simply extend the time on your judgment about it being the right thing to do? That would be your interpretation of flexibility rather than a period of time for organisations to get used to operating the Act? Mr Smith: Well, broadly that would be my approach, but I think technically there is this issue about the duty to issue a decision notice where you do not have the flexibility, but broadly speaking ---- Q286 Mr Soley: You would prefer that to, say, 40 days or a period of time while you are going into it? Mr Smith: Yes. Mr Thomas: Please do not forget that on the face of the Act itself there is provision for effectively an extension to the 20 working days where public interest matters are engaged, where if any issue arises as to the competing public interest, then there is an extension for such reasonable period as may be required, and that is on the face of the Act already and my judgment is that quite a lot of the cases are going to involve issues of public balancing of public interest considerations. Q287 Mr Soley: On the health issue, there seems to be some uncertainty in the health sector about the responsibility about the Freedom of Information Act itself and I am interested in, first of all, whose responsibility is it to see that within the health sector there is a full awareness of what is involved generally? Is that your responsibility or is it the health bodies' responsibility? Mr Thomas: Well, I have no specific sectoral responsibility, but I am aware that the health area is one where perhaps there have been no co-ordinating bodies. There has been for central government, there has been for the police and there has been to quite a considerable extent for local government. I am aware that in the health area it is a very complex area of very many players involved and that there has not been the co-ordination one might have liked. There have been two people on the Advisory Committee, one from the Health Service Confederation, another who is an ex-Department of Health civil servant who has been a consultant to the various bodies in the Health Service and they have given us reasonably positive feedback as to what has been happening in the health area. We have not had that much direct engagement ourselves. Phil may just talk a bit about some of the limited engagement we have had, but I want to stress one point which is that our work has been focusing very much on the various exemptions and there is no exemption which is specifically relevant to the health area. Obviously we are interested in all the exemptions at the horizontal level, but unlike those exemptions which are of interest to the police or to defence or to the Foreign Office and so on, there is nothing which is specifically health-related in the legislation itself. Q288 Mr Soley: In summarising your feeling about this, is it your feeling that the health sector is the least prepared? Mr Thomas: If I said yes, I am sure we would find the example in January or February of another area which seemed worse prepared, but I certainly have some anxieties from some of the feedback I have been receiving that the health area is perhaps one that does need some highlighting, yes. Q289 Mr Soley: Another question which I think needs looking at in more depth, though we cannot do it right now, is this problem of what happens when someone, particularly in the health profession, but this also applies to police, puts down in writing a comment about a person's behaviour and it cannot be proved, ie, it is not a formal mental illness, for example, it might be a comment about dangerousness, and how that is then transferred to another organisation. Are you satisfied that that area of concern has received sufficient attention because it is a very important one? Mr Thomas: I am not sure of the exact example you are referring to, but clearly it will fall within the exemption dealing with privacy which is cast in terms of the data protection legislation. From what you have told me so far, I think any example like that about personal information relating to a mental health patient would not be disclosable under the freedom of information legislation. Q290 Mr Soley: But perhaps it had to be transferred to somebody else within another sector which deals with mental health problems, for example, from health to social services? Mr Thomas: I do not think either public body would be required to disclose that information, but that being transferred from one to another would not make any difference. A request could be made to either public body, but I think in both cases the same answer would come out, that it is not disclosable because it is personal information. Q291 Ross Cranston: I am not strong on saints, as a non-conformist, but obviously your advocacy of this simple regime for fees and not being a deterrent for requests has proved beneficial in terms of the announcement yesterday. We are still not sure though about the guidance on fees because the Lord Chancellor says in his statement that that is going to come up later on. What would that cover? What is that going to cover? Mr Thomas: Well, I think the regulations themselves, he said, would not be laid until November and I have to say that is very late in the day. The guidance, as I understand it, is going to come from the Government and it will be for you to ask them more about this next week, but I think it will, for example, cover what would be an appropriate hourly charging rate for central government and for other public bodies. One of the matters which the Secretary of State clarified yesterday when he was asked this specifically by Maurice Frankel at the conference yesterday was that the limits of £600 and £450 would only deal with the cost of finding the information, but they would not deal with the cost of considering the information in terms of whether it is disclosable or not. I know that Maurice Frankel derived some comfort from that being put on the record yesterday by the Secretary of State and I would imagine that that sort of matter would be covered in the guidance itself. Q292 Ross Cranston: I have perhaps misunderstood this, but beyond a certain level if the cost is disproportionate, then that acts as a barrier? Mr Thomas: Yes. Q293 Ross Cranston: This figure is not an indication of when it is going to become disproportionate, is it, this £600 figure? Mr Smith: Well, I think the intention is that the regulations will designate that figure as the cost limit for the purpose of section 13. I think that has always been the case so that once you reach the stage for non-government bodies of £450, the duty to comply with the request disappears. Q294 Chairman: Nobody would ever pay any fees because the only requests that will be pursued will be those below the fee level? Mr Smith: That is for simplicity. Q295 Chairman: But you cannot insist on the information if you are prepared to pay over the fee level? Mr Smith: You cannot insist on it, no. The authority has the discretion to give the information, but they can charge then on a full-cost basis. Q296 Chairman: But it becomes wholly discretionary, in your view, above these levels? Mr Thomas: There is nothing new in that. That has been the position from the beginning of this legislation. Q297 Ross Cranston: But it would still have to be on the hourly rate? Mr Thomas: Yes. Mr Boyd: It is worth remembering that public authorities will have a duty to provide reasonable advice and assistance, so if your request takes you to £750, the authority must come back and say, "What is it you really want? Can we agree a smaller amount?" They cannot simply say, "Over the limit", and walk away from it. They have to assist you in reformulating your request. Q298 Chairman: You could have a piece of information of very considerable public interest, let me just dream up an example, let's say, the separate values of all the buildings the Inland Revenue sold off and the Inland Revenue turned around and said, "That's going to cost us £2-3,000 to assemble that information", and the applicant says, "I'm quite prepared to pay for that", and the Inland Revenue says, "But we are not obliged to give it. It is embarrassing and we are not going to give it". Mr Thomas: Well, that is the nature of the legislation, Chairman. That is what we have to enforce and that is the policy behind the legislation. That has always been the case the whole way through. I believe it was broadly meant to align with the same approach for parliamentary questions. You will know, I am sure, that on occasions they say, "This can only be effective at disproportionate cost". Well, this is giving a statutory sort of formulation for the same approach. Mr Smith: The issue then might become one of maladministration, the way in which the discretion had been exercised by the public authority, and their refusal to consider a request might then become a matter for the Parliamentary Ombudsman as an issue of maladministration, but that would not be a matter for us in terms of enforcement of the Freedom of Information Act. Q299 Chairman: You did not say much about how ready you felt central government departments were. We have concentrated rather on local authorities and health authorities today. Do you want to correct any impression that might leave about the relative preparedness of the sector? Mr Thomas: We did say in our written submission to you that we are getting reasonably comfortable feedback from central government. I have been talking to some of the permanent secretaries and I have got a meeting with them all tomorrow morning. The survey we conducted of central government departments gave some pretty encouraging feedback from the Home Office, the Department for Education, the Department for Transport, DCMS, ODPM, all putting some very strong language behind the principles of openness and I think to a large extent all the indications we have been getting are that central government are taking this seriously. They want to get the right balance between open government and effective government, but I think it is recognised that you can have both, that you can be both open and effective at the same time. We have not mentioned it this morning, but the National Audit Office have been looking at the state of preparation of my office and of central government. There is a draft management report and I have to say I am very comfortable with what the NAO say in their draft report about our efforts. They pay tribute to the size of our task and what we have been doing. One does not always expect a light ride from the National Audit Office, but we are pleased with all that they said. I have also commissioned Price Waterhouse Cooper to carry out an internal audit of the state of preparation of my office. They did recommend that we needed to formalise some of our activities, but they again paid tribute to the huge amount of work that my team have been doing in getting ready for this legislation, so I take some comfort from those two independent reviews which have been conducted, the latter of my office alone, the former by the National Audit Office of both ourselves and central government. Chairman: Thank you very much indeed for your help this morning. |