Examination of Witnesses (Questions 20-39)
RICHARD THOMAS,
GRAHAM SMITH
AND JANE
DURKIN
14 MARCH 2006
Q20 James Brokenshire: It is interesting
that you focus on central government: because I think the statistics
show that central government itself is only satisfying the 20-day
time limit in 75% of cases. Do you think that they should be setting
targets for the compliance themselves, or what more do you think
they should be doing, given that you have already told us of the
fulsome guidance notes and the steps that you have already been
taking. It does not sound as if it is a lack of information that
you are providing; it is a lack of response on their side.
Richard Thomas: I think there
is a range of reasons. Graham may want to elaborate on some of
the these in a moment. Where they are giving us a good story,
they are saying, "We need to contact some third parties",
"We need to seek legal advice", "We have gone to
counsel on this", then I think we can be a little more tolerant
than if we think they are just letting it go to sleep or they
are not on the case. At our conference this morning we were hearing
about a couple of cases where key staff had gone on holiday, and
we are making it clear that is not acceptable. They have got to
keep the pressure on. If we think they are trying, then we will
be less draconian than if they are not trying.
Q21 James Brokenshire: It does not
sound as if 25% of the cases would be where they are going to
counsel or seeking detailed legal advice on this sort of thing.
Richard Thomas: I am not suggesting
that. I am saying that is one of the examples. Having said that,
I think quite a few public authorities, particularly those nervous
about disclosing information which they do not really want to
disclose, are looking deeply into the exemptions, looking at the
various grounds on which they do not have to disclose the information,
and that, I think, is causing some of the delays.
Q22 James Brokenshire: But would
you accept that there is value in information being provided quickly,
and if information is not being provided quickly that that can
reduce its impact, can reduce the invaluable nature of the information
that is provided and that therefore delay and prevarication is
going to be a very useful tool in the armour of somebody who does
not want to give it?
Richard Thomas: I recognise entirely
that information, if I can coin a phrase, can be a perishable
commodity, and it is taking longer than some public authorities
should be taking in dealing with requests, it is taking my office
longer than I am comfortable with. I am coming clean this afternoon
in saying that we know we have got to both improve our performance,
and we have been doing that in the last three or four months.
We can do further improvements but we need more resource as well,
but, yes, information can be a perishable commodity. Equally,
I think it is unrealistic to expect this always to meet what I
might call journalistic deadlines. A lot of the information has
never seen the light of the public domain before, there is a nervousness
across both government departments and other public authorities
about the extent to which they are being required to release information
and I think it is the incremental approach rather than a sudden
dramatic change overnight.
Q23 James Brokenshire: What do you
think needs to be done to improve compliance?
Richard Thomas: I think it is
more of the same in terms of public authorities recognising that
this Act is here to stay. In my judgment we are country number
fifty something in having freedom of information laws. We have
been perhaps slow to have a freedom of information law in this
country. Now we have got it I think it is here to stay, and I
think people are coming to terms with what I said earlier—it
is no longer business as usual—that public authorities are
perhaps changing the way in which they do business. As far as
possible, I think, most are seeking to be genuinely open. I use
the language of enlightened self-interest quite a lot, and I think
most public bodies see the merits of being more accountable. They
want to build trust with the general public and with other stakeholders,
they want to be as open as possible, but sometimes there will
be embarrassing information or sensitive information, and those
are the areas, perhaps particularly at central government level,
where it is taking longer than anyone should be comfortable with.
Using this occasion this afternoon and other occasions in the
last two or three months, we are sending out the signal that we
will be tougher. You ask me about what more can be done to secure
compliance, we will be using our powers to serve practice recommendations
and enforcement notices increasingly after that first, if you
like, learning year.
Q24 James Brokenshire: Certainly
up until November of last year you had not served any practice
recommendations at all?
Richard Thomas: That is still
the case. We have still not served any.
Q25 James Brokenshire: Do you feel
that you perhaps should have been a little bit firmer in this
first year because of this 25% lack of compliance by central government?
Richard Thomas: I would say that
the priority of the first year has been getting to grips with
the complaints. The complainants, understandably, want us and
public authorities to respond as quickly as possible, so the priority
for the last 12 months has been very much dealing with the complaints
as they are coming in, learning how to do our job and making sure
we are doing that job as quickly as possible.
Q26 James Brokenshire: To be clear
in terms of the actual information side of things, it is not awareness;
it is non-compliance and excuses, if I can put it like that?
Richard Thomas: I think that is
broadly right. Our survey indicates that the vast majority of
public authorities are aware of the legislation. I think the figure
is 98% of public authorities said they were aware of the implications
of the legislation, 66% were very aware. What is quite interesting
is that research does indicate that 81% of public authorities
we questioned in our survey said that freedom of information was
a very or a fairly good thing. I am extremely encouraged by that
sort of feedback. We could have seen people saying, "No,
it is a burden. It is something we do not welcome. It is a problem",
but 81% are saying it is a fairly or a very good thing, and that
figure rises to 86% for larger public authorities, which will
include most of the Whitehall departments, and they recognise
the benefits in terms of increasing trust, releasing more information.
Only 3% told us it is a bad thing, and that is a pretty small
number. We are trying to use a carrot and stick approach. Answering
your question, we are using as many carrots as possible, trying
make it as easy as possible. It was said this morning, there are
big sticks in our armoury. We need to demonstrate those and use
them on occasions, and we will be doing so increasingly as the
year goes forward.
Graham Smith: Could I add something
to try and further answer the question that has been put. One
of the things that we are trying to convey today is that there
is a very mixed picture across the whole of the public sector.
I would not go so far as to say there is not an awareness problem.
There is not an awareness problem in central government.
Q27 James Brokenshire: It is just
a compliance problem in central government effectively?
Graham Smith: That is a different
issue, but, given that we have got 115,000 public authorities
covered by this legislation, some of which are very small, there
has been a major exercise that we have been going through as we
have investigated some of the complaints because we have received
complaints where it has quickly become apparent that the public
authority has not been fully aware of its responsibilities. Some
of these are small parish councils, they are NHS trusts, they
are individual health centres, they are primary schools where
somebody has tried to exercise their rights under freedom of information,
and, clearly, the public authority has been a bit surprised. In
dealing with the complaint we have been taking those public authorities
through the process of freedom of information and making them
aware with a view to trying to resolve the complaint at the local
level. I think it is important to recognise that the Act is designed
in such a way that the request for information is made to the
public authority and that is really where things should be resolved,
if possible. We do have to get involved and wield the sticks in
cases where there is blatant non-compliance, but all I am trying
to do is balance the picture by saying we have had a number of
cases where we have been educating the public authority as we
have gone along. We have always said that we would not be tolerant
of wilful non-compliance, and there have not been many cases where
we have seen wilful non-compliance. I think we have seen more
cases where there is a need for greater awareness and greater
understanding of the full nature and extent of the public authority's
responsibilities.
Q28 James Brokenshire: From your
answer, Mr Smith, you obviously have come across cases where there
has been wilful non-compliance. Why have you not used the stick
in those circumstances?
Graham Smith: We are starting
to. I do not think we have seen many cases where there has been
wilful non-compliance, but we are starting to see some patterns
emerge, and they have been referred to in our written submission,
issues where perhaps the public interest test extension is used
very often and accumulatively to extension the period of time
within which the public authority has to respond to the complaint.
Q29 James Brokenshire: But we have
waited a year. It is a year on and you still have not used your
enforcement powers. Are we going to be here in another year and
you still have not used them?
Graham Smith: We have used our
enforcement powers. The decision notice is the first step in our
enforcement powers, and failure to comply with a decision notice
is a matter of contempt of court. We have not had any obvious
case of wilful compliance which has gone down that route, but
we do have also an appellate tribunal which sits above us, and,
where a public authority is reluctant to accept our outcome through
a decision notice, then they can exercise that right of appeal,
and they are doing so. I do not think we can draw too many conclusions
from the first year. We have recognised and acknowledged that
we need to and will use our strong enforcement powers and the
sticks in cases where there is a pattern emerging of wilful non-compliance,
but those are very exceptional at the present time, and we are
pursuing those. I am saying that we need to do that more in the
future, but there is quite a long process, going from the initial
request through internal review, complaint to ourselves and then
an appeal to the tribunal, and we need to get a pattern emerging
before we can use our strong powers such as enforcement notices.
As yet, as I said, we have not had to instigate any contempt of
court proceedings for refusal to comply with our orders.
Q30 James Brokenshire: On the specifics
of the 20-day statutory period, are you happy that that is the
right length of time. In other words, that over the course of
this year 20 days is the right time-period rather than any other
time-period?
Richard Thomas: It is 20 working
days, but I have no reason at all to suggest that is inappropriate.
I think that is the standard set down for public authorities on
the face of the Act. As my colleague Graham Smith has said, there
are situations when that can be extended, particularly in public
interest considerations. I think the area I am most concerned
about, frankly, is where perhaps they come to us and ask for an
extension or another extension. We have been fairly tolerant.
We will be being less tolerant as we go further forward.
Q31 James Brokenshire: Let us explore
that a little further, because obviously one of the reasons why
delay can occur is if this argument of public interest, the public
interest test, is raised. What is your view on the length of time
currently being taken by authorities when they run that public
interest argument?
Richard Thomas: In some situations
they will need the time, but I am increasingly sceptical they
need as much time as they are taking. We have got one example
where I think they required six extensions of time, and I am not
prepared in future to let my staff have that degree of tolerance
towards a public authority.
Q32 James Brokenshire: Is that the
sort of situation where you would issue a practice recommendation
or something like that?
Richard Thomas: That is exactly
where we might come down in the future. It is right to recognise
that in that first year it was new territory for everybody. Public
authorities were dealing with some boundary testing cases and
needed to really seriously think about how the Act was going to
apply. After the first year, we are now into the second year,
I would not expect to see that sort of time being taken on those
sorts of cases again. I hope I am sending a very clear signal
that where public authorities are taking an excessive time to
consider the public interest considerations that will not be acceptable.
We are working towards giving more explicit guidance. I cannot
create law on this front, but what I have been saying increasingly
informally, and perhaps we will find ways of saying it formally,
is that two months ought to be quite long enough for anybody to
go through a weighing of the public interest considerations.
Q33 James Brokenshire: Another period
of delay, and I know this is an issue where you have also turned
down the complainant when they have gone on to complain to you,
is where the internal review process—in other words the
procedure that is adopted within the authority itself—has
not been followed through. In relation to this whole process of
internal review it is an easy argument to put up: "Oh, it
is all in our internal review process", and yet we are nine
months down the track and it is still in the internal review process
and has not come out again. How can you practically do something
about that?
Richard Thomas: I think you are
right to raise that. It is an important point and one that concerns
me, as I am sure it concerns you. It is not a statutory process
in the same way as it is in Scotland. In Scotland there is a mandatory
internal review on the face of the Act. What the Act says in the
UK, the Act which I am responsible for, is that, in effect, the
interaction of section 50 of the Act and the Code of Practice
is that normally we would expect an internal review to be undertaken
by the public authority before we start to deal with the complaint.
Q34 James Brokenshire: Would you
like to see that more Scottish style of approach adopted? Would
that help you in terms of dealing with your business?
Richard Thomas: I do not think
we are currently in the business of suggesting revisions to the
Act itself, but that will be on my shopping list, something in
that area to perhaps create a tighter mandatory requirement for
internal review. I think it is a healthy stage to have a more
senior review of a case inside the public authority, because one
could understand perhaps more junior staff are dealing with it
and then it does need to be taken to a more senior level for review;
but I think, were it to be made mandatory, there would have to
be quite strict time limits. We are having to work with rather
general language at the moment, and I think I would want to see
the same approach to time limits as exist for requests in the
first place. So, yes, the answer is we would like to see a tighter
control there, but, equally, where we feel that we are being spun
a line by a public authority, we think that they are not actually
pursuing the internal review as fast as they should be, then we
will do our best to put more pressure upon the public authority
to speed up their act.
Q35 James Brokenshire: Is this again
an area where a practice recommendation would be appropriate?
Richard Thomas: It may be, but
please do understand—and this goes back to the questions
that were put earlier by Mr Tyrie—we have very limited resources
to do this. I am having to put large numbers of my staff into
complaint handling. The more we move staff into complaint handling
the less we have for the enforcement policy and guidance area.
We are very stretched.
Q36 James Brokenshire: But, as you
can appreciate, if people put in an application under a Freedom
of Information Act inquiry a year go and they are still sitting
here a year later without that information, they are going to
be quite frustrated to hear from you, "Sorry guys, there
is not a lot we can do about it. We have not got the resources.
Therefore it has not got the teeth to actually bite on this authority
to do something about it"?
Richard Thomas: I hope that is
not the message we are conveying to you is afternoon. We are not
sitting back. We are certainly not complacent about the situation.
We have got a double target in this area. One is to get individual
complaints resolved as quickly as possible so that people are
not sitting there feeling frustrated, but also using our more
general powers to put pressure upon public authorities to speed
up their performance generally. The emphasis in the first 12 months
has been primarily on getting the complaints through as quickly
as possible. We will still be doing a lot of that for the next
12 months. There is no doubt of that. What I am saying is that,
to the extent possible, we will be using our formal powers to
improve performance at a more general level.
Q37 James Brokenshire: On this issue
of internal review, you will therefore be issuing more and clearer
formal guidance in addition to the 23, or however many other guidance
notices you have issued, on this as to what you regard as reasonable
and acceptable in terms of the time taken and the procedures to
be adopted.
Richard Thomas: I have indicated
already that, without making it a formal requirement, because
legally I cannot do that, I am indicating that in my judgment
two months should be long enough for public interest considerations.
Q38 Chairman: Do you have any special
provisions for or way of dealing with those cases where the complainant
can show that there is a time limit on his need for the information?
For example, he may have a matter coming to a tribunal or a public
inquiry or something like that?
Richard Thomas: I think Graham
has a couple of examples of those. I mentioned earlier moving
away from the cab rank principle, first come first served, with
which we started. We tried to be equitable in our treatment of
everybody, saying no one deserved any special favours. I think
with hindsight, that was not the best approach and now we are
prioritising cases. We have got various criteria. They include:
is it setting a precedent? Can it be grouped with other cases?
Is it an important point of principle? One of the criteria is:
is there a special reason of timeliness? If there is some pending
legal challenge, or an appeal, or something of that nature, we
will do our very best. It may not always be easy to meet those
demands, because some people want the information very quickly
indeed, but Graham may want to say a little more about that.
Graham Smith: We are trying to
identify those cases. Obviously we are dependent on what the complainant
tells us, but where they make it clear on the face of the complaint
then we are, through having a more assertive case reception process,
able to identify those issues and to respond to them positively.
I can give one example where somebody involved in the work of
a local authority wanted some information about housing stock
in time for a ballot for an ALMO. Clearly there was a timescale
for that and they needed that information, and so we were able
to respond positively to that complaint and investigate it with
all speed. I think we are having to draw something of a line between
a situation like that, where I think it is entirely right and
proper that the Act should be used and we should give some priority,
as opposed to a case where perhaps there is a court case pending
and there are actual rules of discovery already within the framework
for the handling of the legal case and people trying to get information
to support their court case through FOI is almost complementary
or additional to the process.
Q39 Chairman: So they have an alternative
resource.
Graham Smith: That is right. We
are trying to be quite careful, but, yes, we are trying to be
sensitive to those people's needs.
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