Select Committee on Constitutional Affairs Minutes of Evidence

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 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 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 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 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 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.

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