Examination of Witnesses (Questions 243-259)|
19 OCTOBER 2004
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
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 statutory 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 taking 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 office 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, and 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
and enforce them appropriately. I am not sure it is the referee's
job to go into the relative changing 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
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
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
codes 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. Those are 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
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
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
Q259 Chairman: Is that a letter you are
happy to let us have?
Mr Thomas: I have to be a transparent
and open Commissioner.