Examination of Witnesses (Questions 260-279)
RICHARD THOMAS,
GRAHAM SMITH
AND PHIL
BOYD
19 OCTOBER 2004
Q260 Ross Cranston: Otherwise we would
make an FOI request!
Mr Thomas: You would make a request,
I am sure, but we wrote specifically to the Secretary of State
on 24 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.[2]
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 further 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, that 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.
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. 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 1 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. 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 Data Protection requests are 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.
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