Examination of Witnesses (Questions 80-99)
RICHARD THOMAS,
GRAHAM SMITH
AND JANE
DURKIN
14 MARCH 2006
Q80 Keith Vaz: "I cannot get
on with the job until you give me the money. Every day you do
not reply to me the backlog grows and grows"?
Richard Thomas: That is the problem,
Mr Vaz, and I am making that quite clear. At the same time, the
reforms and the changes we are making enable us to achieve the
steady state level. It is the backlog which is troubling me. Of
course, if you do not tackle backlogs, they are there for ever
and the cases come in and the backlog gets worse and worse, so
I am deeply concerned about that.
Q81 Keith Vaz: Do you know what the
average cost per case for carrying out their investigation is?
Richard Thomas: We have not got
such a figure at the moment, and I am somewhat resistant to formulating
such a unit of cost.
Q82 Keith Vaz: You do not have the
figure?
Richard Thomas: I do not have
the figure, no, and I think it would be undesirable simply to
divide the total money made available to us. I mentioned £5.0
million. To simply divide the total number of cases into that
I think could be quite misleading because the cases vary so much.
Q83 Keith Vaz: It is possible to
do it, especially if you have got these clever consultants. Is
that not one of the things you might ask them to do?
Richard Thomas: As I say, their
work is work in progress.
Q84 Keith Vaz: Is this one of the
things that you can ask them?
Richard Thomas: Indeed. That is
one of the issues we are discussing with them. If I am being a
little coy on this it is because it is their work in progress
and they have not yet reached their conclusions, but one of the
issues we are discussing with them is precisely whether we ought
to be using more financial measures as one of the means of managing
performance more inside the organisation.
Q85 Keith Vaz: Do you know what the
costs are in other jurisdictions where they have got information
commissioners?
Richard Thomas: I do not think
we do.
Q86 Keith Vaz: Would this be one
of the things your consultants would be looking at?
Richard Thomas: They are looking
at the Scottish and the Irish experience on a sort of desk-based
basis, but they are not paying visits and I do not think they
are probing that deeply into that level of detail.
Q87 Chairman: However we are, so
we can always ask the Scots how much their operation is costing.
Are you not going to have to use some of your new money to raise
the grading of your staff based on what you told us earlier. South
Manchester is not a cheap place to buy a house.
Richard Thomas: I recall, Chairman,
your familiarity with Wilmslow and mentioning this point on previous
occasions. I told you on previous occasions that I am really quite
concerned about the salary levels which we are able to pay staff,
and I mentioned the figure to you earlier. Our cluster four staff
start at around £15,000 a year, our cluster six staff, more
senior staff, on around £25,000 a year, and it is not easy
to recruit good people with the right sort of experience. Almost
none of my staff can afford to live in Wilmslow. We have people
commuting in from a very wide catchment area, and I mentioned
to you that I was concerned that the salary levels are, broadly
speaking, about 15% behind public sector comparables. Since we
last addressed this issue with the select committee we have raised
this with the Department. There are statutory rules which say
that I cannot deal with salaries or head count without the approval
of the Department. That was not forthcoming some 12, 15 months
ago. What we did agree with the Department is that we would undertake
a fundamental pay and grading review. We have had to hire a firm
of consultants to do that for us. They are due to report in the
next couple of months, and I am hopeful that will begin to address
the problems of my staff, in my view, not being paid the sort
of salary levels which are needed. I know you are due to visit
Scotland quite shortly, and I think you will find there the salary
levels for the staff of the Scottish Commissioner are, like for
like, significantly higher than we are able to pay.
Q88 Chairman: So you may have to
go back to the Department early in the next financial year?
Richard Thomas: We have yet to
see what the outcome of this pay and grading review will be in
terms of what grades are appropriate, what are the comparables
for staff working in similar organisations, but I cannot rule
out going back to the Department and saying that we need more
to pay the going rate for the job. One of our corporate objectives
is that we value our staff. We have got some extraordinarily dedicated
and good staff, but we want to make sure they are paid the right
rate for the job and I cannot stand before you this afternoon
and say that is the case at the moment.
Q89 Julie Morgan: What is your view
of the standard of work produced by your staff? We have read some
adverse comments about the quality of work that has been produced.
Friends of the Earth, for example, say that they have received
letters that were undated, no signature or senders name, did not
identify the complaints and they have said that the standards
of some of the work produced has fallen short of that expected
of a public body. Could you comment on that?
Richard Thomas: I have seen that
submission. I am not comfortable with it. I think there are very
isolated examples. Graham may want to say a little more about
that. No-one is comfortable with that being said. That is not
typical. Friends of the Earth clearly have a very strong agenda
in this area, and I understand some of the concerns they have
been raising, but I do not think their experience is typical.
I would also say that, in terms of the quality of decisions notices,
I think there has been a very wide recognition of this. As our
staff became more and more familiar with the task in hand, the
standard, the quality of the decision notices has gone up quite
significantly, and we have had a lot of external recognition for
this.
Q90 Julie Morgan: It seems fairly
fundamental that you have dated correspondence and that there
is a signature at the bottom. Are you saying that what they are
saying is true or not?
Richard Thomas: I am not saying
it is untrue in the isolated cases, but we have closed something
like 1500 cases. If it is two or three, that is two or three too
many, but I very much hope those are very isolated examples.
Q91 Julie Morgan: You believe that
it is in the region of two or three cases out of the whole lot?
Richard Thomas: I could not honestly
put a figure on it, but I would be disturbed if it was more than
highly exceptional that someone forgot to put the date on a letter.
Jane Durkin: If I may interject,
the instance that Friends of the Earth mentioned was a one-off
exercise that we did. Yes, it did happen, but it was isolated.
Q92 Julie Morgan: The standards and
quality of the work produced by your staff you are satisfied with
generally?
Richard Thomas: A commissioner
is never satisfied. We get better all the time. We are a learning
organisation. We are improving, we are raising our standards.
Whether we will ever reach perfection I rather doubt, but I hope
we are very much moving in the right direction.
Graham Smith: We have included
in our recovery plans specific action to address the issue of
training of staff, performance and knowledge management. I have
looked into the individual cases which have been complained about,
and, as Jane has said, these are isolated cases. I have also looked
to see whether there is any suggestion in any case that poor quality
of work had resulted in an adverse outcome for a complainant,
and there is no suggestion of that at all. It was an unfortunate
administrative error. The issue of decision notices, I think,
is one where we have become increasingly aware that there is a
real appetite for any decision and anything that we say about
FOI, because public authorities, understandably, see our decision
notices not just as a means of resolving an issue between two
parties but also in these early days as something of an educative
tool, and so we are trying to make them fuller now. We are responding
to those criticisms and the comments that have been made, we are
giving a much fuller explanation as to what has gone on in a particular
case, however apparently trivial or mundane, and to explain our
approach to the investigation and how we have reached the decision
that we have come to. I think there was an earlier question in
the session today which concerned the fact that our early decision
notices were to do with procedural complaints, straightforward
things. I think that was inevitable given the way that the Act
has been introduced. These were the things that people first had
to complain about. They were complaining about non-response, about
delay in response, about the process, the way in which their complaint
was handled or not handled. What we are finding now is that the
real substantive issues under the Act, the interpretation of the
exemptions, the articulation and application of the public interest
test, are now the matters which are coming to the fore. They are
complex and difficult issues. They often require very fine judgments
to be made. The fact that a public authority has reached a view,
has confirmed a view, we have reached a view and then perhaps
the information tribunal now are reaching a view, those views
may all differ rather subtlely. I think that is simply an indicator
of the complexity of some of the issues which these FOI complaints
are raising.
Richard Thomas: Can I give one
or two examples of some of the decision notices. In the last few
months we have had a very important decision about the minutes
of a senior board inside the Department for Education & Skills,
whether that should be published or not. We have made a ruling
on the airport in Derry in Northern Ireland as to the details
of its contract with Ryan Air vis-a"-vis landing charges
at Derry Airport. We have dealt with this House, the question
of Members of Parliament expenses. We have dealt with the Board
of the Governors meeting at the BBC, the meeting when Greg Dyke
stood down after the Hutton Report. We have dealt with the trial
of Jeremy Thorpe and whether the proceedings of that should be
put should be put into the public domain 28 years after that trial.
Just yesterday we have made a ruling in relation to a university
and the way in which it deals with its markings of exams, the
grades awarded to people taking exams in a very important pharmacological
area. These are difficult cases. We got a lot of press coverage
for the decision we made on restaurant inspections, a matter of
considerable importance to the general public. It was a case in
South Wales. Bridgend Borough Council were resistant to publishing
details of restaurant inspections. We negotiated a successful
outcome with a couple of London Boroughs, but Bridgend were a
little more resistant and so we had to give a formal ruling against
them. You have to give your reasons and analysis of the situation—there
are arguments running both ways—but all these cases can
easily run to a judgment of ten, 11, 12 pages, as I said earlier.
We have got examples here if you want to see some of those, but
they are complicated, they are demanding and, I have to say, I
am proud of the quality that my staff are achieving in these sorts
of cases.
Q93 Julie Morgan: There are obviously
very complex cases, and the one you have listed just now show
that. How do you ensure that there is consistency in the decision-making
that takes place and how much are you personally responsible for
the decisions?
Richard Thomas: We have formally
signed 158 formal decision notices as opposed to the informal
resolutions. Graham, my deputy, has signed the majority of those;
so there is a quality control there in respect of which Graham
is the sole signatory. I myself have been signing some of these,
but we also recognise that we have got to delegate decision-making
inside the organisation. In the first year we wanted to keep a
tight control to ensure consistency. Now we are more comfortable,
we have learnt a lot in the first year, we are concerned to now
delegate more of the straightforward ones inside the organisation.
Of course, one of the risks, as you quite rightly say, Mrs Morgan,
is that there may be a risk of inconsistency across the organisation,
but we are doing our very best to mitigate against that risk.
Q94 Julie Morgan: How do you mitigate
against the risk?
Richard Thomas: By involving a
wide range of people, by discussion inside the office. Those empowered
to sign a decision notice will be at Assistant Commissioner level.
If a case falls outside established principles or precedent, I
would expect them to discuss the case informally. Our lawyers
have an involvement in most cases, and they will still see it
through a more objective prism. I cannot say we will never get
an inconsistent case, but we are doing all that we can to achieve
as much consistency as possible.
Q95 Julie Morgan: Finally, do you
think decision notices are sufficiently full to ensure compliance
from local authorities or from authorities in general?
Richard Thomas: Yes, Graham has
mentioned that we have been giving rather more detail in our decisions
than perhaps in the early months, and we recognise that people
learn from the substance of our decisions, but for any complaint
handling body there is always a tension between quantity and quality.
If you want to avoid backlogs you have got to push the cases through
as quickly as possible. If you want to get very high quality,
that may slow the system down. The message I give to my staff
and outside the organisation, as it were, aiming neither for a
Rolls Royce service, nor for an old banger. We are looking for
a Ford Focus approach. We cannot afford to look under every stone.
We cannot look at every issue raised in a case. We have got to
cut to the chase, understand what the real issues are and make
a proper judgment on the real issues; so acceptable levels of
quality rather than the highest possible. A minority of cases
go to the tribunal. They may then get scrutinised in more detail.
We may want to modify our position before the tribunal actually
has a hearing, but we have got to make sure that the volume of
business, and it is a high volume of business, is pushed through
within acceptable time frames. Although this Committee, quite
understandably, has focused on backlogs and delays, I think we
are not doing at all badly compared to other complaint handling
bodies, and compared to the courts, at dealing with comparable
issues of complexity. I am not proud that we are taking longer
than I would like, and we are addressing that, but, as I say,
there is a trade off between quantity and quality.
Q96 Chairman: Referring to the tribunal,
you have not had very many tribunal decisions yet. What impact
have they had so far and how well is the tribunal working?
Richard Thomas: It is very early
days, as you rightly say, Chairman. They have only really dealt
with nine cases, seven of which have resulted in an outcome. It
has been useful generally. The tribunal stands in our shoes. It
can make decisions on fact-finding, on points of law, on the exercise
of discretion from scratch. Most of those which they have so far
dealt with were from our cohort of early cases where we ourselves
were learning. They have upheld some of our cases; they have changed
the approach in other cases. They can look in greater detail than
we can. We are learning from their rulings. They appear to be
taking a more purposive than the literal approach that perhaps
we had expected, and we are learning from the dynamic of that.
We are not unduly concerned if on some cases they take a different
approach. We have got a management target of recognising we will
not win every case. If we win every case before the tribunal,
we are being too cautious, and I am making it very clear that
we said we would aim to be upheld in 75% of cases. Very few of
the cases actually turn out to be a win or a lose—it is
not quite as black and white as that—but we have in the
last few months changed our own systems so that we are now looking
at a case again, once we know there is going to be an appeal,
to see: did we get it right? Should we change our position? We
have already in one case withdrawn our decision notice and are
substituting a new one. That is not statutory, that is not on
the face of the Act, but I think I have a discretion to do things
like that and I think that is a sensible approach all round.
Q97 Chairman: It is going to be win
or lose for the complainant, is it not?
Richard Thomas: Not always, no.
It is win or lose, but in many cases they will not get everything
they ask for. It may be some of, but not all, that they ask for.
That is what I meant by neither one nor the other. I do have some
anxieties about the tribunal system as set out in the Act. I am
the respondent in every case. Every case is an appeal against
myself, and that has the slightly purist result that, for example,
the public authority itself may be excluded from participation
in the case, or, if they do come in, they have to come in as a
third or a fourth party. If I can give an example of this, and
I do not know if the Committee is familiar with our ruling on
the National Maritime Museum case, but it is a good example. A
request was made for information about how much money had been
paid by the National Maritime Museum for a work of art. We investigated
that and we decided, in the circumstances of the particular case,
it did not have to be disclosed during the procurement process
when the request was made, but we added that, with the passage
of time, once the procurement was over, it was appropriate to
disclose the information, and, indeed, the museum did disclose
the information. The requester, despite getting the information,
made an appeal to the tribunal and technically we lost that case
because the tribunal took a different view from us as to the facts
of the particular case. They decided that one piece of art was
quite separate from another piece of art and that, once the procurement
for the first work of art was over, it was safe to release the
information. On a closer scrutiny, that was fine. What was interesting
was that the museum was not able, or chose not, to take part in
that tribunal. As far as they were concerned they were finished
with the case and did not want to participate in the appeal. Behind
them the Department for Culture, Media and Sport would like to
have been involved but were not entitled to be there; so we ended
up almost in the shoes of the museum, and that is a rather uncomfortable
position to be in to explain, or perhaps even justify, the position
of the public authority. We are looking in those sorts of cases
to see if we can take a lesser role. Although the Act requires
that we are the respondent, I would much rather see the real battle
at the tribunal between the original requester and the original
public authority. Let them put their respective points of view
before the tribunal rather than me having to justify the decision
we first reached. We can do so much within the framework of the
existing Act, but I think there is a slight unhappiness with the
way in which it was drafted.
Q98 Chairman: You spoke about "pockets
of resistance", a phrase that struck me. Are these people
who are consciously not complying with the memorandum of understanding
which was reached with the DCA on behalf of all Government departments?
Richard Thomas: There have certainly
been occasions when departments and other public authorities have
not been as rapidly forthcoming as we would like, and I have given
you some examples. My staff tell me that there has been something
of a hardening of attitude in the second half of 2005, which I
find a bit surprising and a bit disappointing. I think it is probably
as the tougher cases are coming forward where there may be reasons
why they are reluctant to release information and are taking their
time to make a decision, and in some of those cases they have
not been as cooperative as I would have liked with my own department,
with my own office, in either sharing information with us or giving
us full explanations. I do not want to over-emphasise this, I
do not want to say it is universally the case, but I use the phrase
"pockets of resistance", and we have got to try and
keep the pressure on in those areas.
Q99 Keith Vaz: Mr Thomas, what are
your views on the proposed DCA review of fees regulations?
Richard Thomas: The existing fees
regime was put in place very late in the day, only a matter of
weeks before 1 January, and this Committee had some comment to
make on that. We think the existing regime has worked pretty well
from the perspective of requesters and, indeed, from my own office;
so we are comfortable with the existing regime. Interestingly,
in our survey only 6% of public authorities said that vexatious
requests were a problem. We understood some of the alternate models
which were being looked at during 2004 and we had anxieties. They
were highly complicated and highly difficult, so the existing
regime has the benefit, as I see it, of being simple, clear and
certain and not acting as a deterrent to members of the public
from making requests under the Act. I do have an anxiety that
any fee regime which did deter members of the public from making
a legitimate request would be inconsistent with the principle
of open government. I am concerned about the Irish experience,
where the fees were increased, and that had a very obvious chilling
effect on the uses to which the Act was being put. I have to emphasise
that fees are a matter for the Government. There is nothing in
the Act which says that the Government has to consult with me
on the question of fees, but I think it is appropriate for me,
as I have done this afternoon, to put on record my general approach
to the question of fees. There has been some discussion about
vexatious requests as being a motivator for introducing a different
fees regime, and I have to say I am very surprised that Government
departments do not appear to be making any extensive use of section
14 of the Act. Section 14 entitles any public authority to exclude
a request altogether on the ground that it is vexatious. We have
put out some pretty robust guidance on this issue. We have issued
a decision notice upholding Birmingham City Council on this matter,
but we have not seen Government departments using this when it
is obvious that a vexatious request is being made.
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