Examination of Witnesses (Questions 104-119)
MAURICE FRANKEL,
STEVE WOOD
AND DAVID
HENCKE
28 MARCH 2006
Chairman: Mr Frankel, Mr Hencke, Mr Wood,
probably many of us know all of you from your longstanding interest
in this issue. I will ask Mr Wright to begin the questions.
Q104 Jeremy Wright: Good afternoon, gentlemen.
We have got you here, as the Chairman says, because you are all
experts in this. We are interested in your views as consumers
of the system, more than anything else. I want to ask you first
of all about how the new regime is working and, secondly, what
problems you have identified with it, having seen it operate for
some period of months. First of all, could you tell us a little
about the benefits that you have perceived over the last 12 months
of the new Freedom of Information regime? That is really to all
of you. I do not know in what order you want to deal with it.
Let us start from the left, shall we?
Steve Wood: I think that I would
like to highlight the positive issues first of all. The breadth
of coverage of the Act has enabled a relatively high number of
requests that have been made this year. We know, although it is
only an estimate, over 100,000 requests have been made. We know
anecdotally from some of the research evidence we have seen that
the largest percentage of requests are from the public, and I
think that should have been the main aim of a Freedom of Information
Act. So I think that is very positive. Looking at the range of
information which has come out, it is from the very high-level,
high-density data, like information about heart surgeons and the
Common Agricultural Policy payments, but also, looking at the
lower levels, we can see that information is coming out about
sales of school playing fields—right down to that low level.
Those are the positive aspects I would like to highlight initially.
I think that it is the breadth of coverage; that we have a consistent
regime across all the sectors. That is one of the key areas I
would like to highlight as one of the benefits of this year. The
public are interested in the Act. That is what I am picking up.
I get emails through my website from members of the public. People
are very interested in using the Act, and we have had over 100,000
requests. I think that is particularly one of the positive things
from this first year.
Maurice Frankel: I agree with
that. I am very pleasantly surprised by the amount of information
that has come out and the importance of a lot of it. I think that
we have a functioning Freedom of Information Act, which was not
always guaranteed. It was always possible that we would have one
on paper that did not do very much in practice; but I think that
we have a worthwhile, important piece of legislation and it is
functioning at the moment.
David Hencke: As a sceptical old
hack, I have been very surprised and pleased with parts of this
Act. Journalists would not use it on a day-to-day basis, for a
story you are running, but they would use it to get information
on a wide area. Where it has been particularly good—the
one we found the best, and we left time as a newspaper for them
to respond, we did not just stick to the arid rule of 20 days—was
the business of the Common Agricultural Policy and the funds.
It basically meant revealing millions of pounds' worth of subsidies
paid in England. To be fair to them, they took about three months,
but they actually gave us more than we asked. They gave us comparative
data over more than one year. The fascinating thing as a journalist
was that it then meant that I got in touch with other European
journalists who were watching what had happened in Britain. The
net effect of what we have done in Britain—it is quite an
accolade in a way—is that only Denmark among the European
Union had released this information. Since then, a number of Spanish
regional authorities have released the same information. The Dutch
have released the information. Even parts of the French farming
have come out. The Germans are involved in a huge row at the moment
about whether to release it or not. But the people are advocating
the release, using the British example that even Her Majesty the
Queen has had to disclose the subsidies to Sandringham, and even
a company as big as Tate & Lyle, which got an enormous amount
of subsidies, had to disclose. So the effect of this Act has actually
gone further than the UK in this case. It is making the European
Union a bit more open.
Maurice Frankel: Although this
information is not disclosed in Scotland or Wales.
David Hencke: I think that Scotland
has just done it, has it not?
Maurice Frankel: As they move
to a new system, they will disclose; but they are not disclosing
the past payments, nor is Wales. They think that they would be
in breach of the Data Protection Act if they did.
Q105 Jeremy Wright: That, broadly
speaking, is the good news. Can I invite you now to be critical,
if you so choose, and deal with some of the problems that there
may have been over the last 12 months? The first of them, as we
understand it, is that there has been a degree of delay in providing
information. The 20-day period has sometimes been exceeded and
there may have been delay caused by various departments going
through their own protocols and systems before they provide information.
Has that been your experience? Have you registered delay beyond
what you would have expected, or is this, in your view, not a
major problem?
Maurice Frankel: It is a problem
at every stage. It is a problem in responding to requests. It
is a problem in completing internal reviews. It is a problem in
getting decisions from the Information Commissioner as well.
Q106 Chairman: We will move on to
the Commissioner himself in a moment.
Maurice Frankel: It is a problem
at each stage. One of the difficulties that we have is that there
is a nominal 20-working-day response period, but it is expandable
for an unspecified reasonable period, whenever public interest
is to be considered. I think that is a strange way of organising
the legislation: to say the public interest itself needs more
time. I think one could better have said, "Where there is
a need to consult third parties, or where the information is extremely
voluminous, we need more time". I do not think the public
interest needs more time. If it does need more time, I think that
it is a pity that it is unspecified. One of the problems is that
the length of the delays is not monitored in central government
by the DCA. The number of requests where an extension is taken
is monitored; the length of the extension is not monitored. So
if you assume that departments respond to the monitoring data,
to the shortfalls revealed by the monitoring data, the trend is
for more requests to be dealt with in the 20 days. That is what
we have seen over the year. However, we do not know what the trend
is for those that exceed 20 days: whether they are taking one,
two or three days, or whether they are taking six or nine months.
We do not know what the spread is. That is not monitored and,
as long as it is not monitored, we are unlikely to see major improvements
there.
Steve Wood: The longest I have
experienced is 70 working days. As well as the requests, the problem
of delay means that you are often in a quandary as to whether
you want to complain to the Commissioner at that stage because,
if you take your complaint about the delay to the Commissioner,
the Commissioner then only investigates the delay. You may end
up by getting a response and an exemption is used, and you then
have to go back again—relating to that part of your complaint.
Sometimes, as a complainant, I am often nervous about using a
complaint at that point about the delay. So I think that it creates
a problem there sometimes.
David Hencke: Over delays, I notice
quite a differential performance among different government departments.
Probably one of the worst cases I have had—and I still do
not have the information, and I think it is a year now—has
been applying for some historic information that is available
for the first time under the Act: the documents relating to the
miners' strike. What has been quite interesting is that we applied
to the Cabinet Office and someone else applied to the Home Office,
dealing with the police, and also to the Department for Trade
and Industry. The Department for Trade and Industry were brilliant,
in the sense that they decided to alert National Archives and
make available the old National Coal Board documents on what was
happening in the strike. Furthermore, when you went to the National
Archives and there were one or two missing, you could use their
computers to put in an instant request, which they actually dealt
with in 28 days, to get the information back. So they were really
good. The Home Office did not volunteer stuff, but what they did
do was, when someone requested information on the relationship
between the police and other things, to release the information—which
was good. The Cabinet Office—because we did not know what
they held, it is perfectly reasonable, as a journalist, to ask
for the titles of the files—their initial response was to
say that the titles of the files were confidential advice to ministers,
which we pointed out was rather absurd. The contents might be,
but a title cannot be. Faced with that, they then said, "Oh,
well, we can divide it into two parts: what we can tell you and
what we cannot", and they decided that what they cannot was
"a breach of national security". They changed the rules
from saying, "We can't give you ministerial advice now. This
is national security. You can't have half of this". The other
half, they said, "Yes, we would look through it"; but
they keep asking for an extension. The extensions have now run
for nearly a year, and we still do not have the information. From
what Maurice was saying, it sounds like they do not have to record
the first one. So I have found them bad in that sense, and similarly
in dealing with other ministries. Some of them are very good.
Culture, Media and Sport seem to be very efficient and quite open
about things. We asked about casino operators and we had a very
good response and a lot of detail from Culture, Media and Sport.
Local government, the ODPM, gave us information where the casino
operators were not interested in meeting them—which was
again honest. The Treasury gave some; but the Cabinet Office decided
that this would involve policy and confidential advice to ministers.
So the same thing was brought up to prevent you getting the information.
I detect that almost the nearer you get to the centre of power,
the least keen they are in telling us and the more delays that
arise.
Q107 Jeremy Wright: Thirdly, can
I ask you whether that lack of consistency extends to refusals
for information, because that is the third element we are interested
in? Where exemptions are used, where the information is not provided
at all, is it your view that that is being done appropriately
and is it your view that it is being done consistently, or does
that again vary depending on the organisation you are asking for
the information?
David Hencke: I think that it
varies with the organisation. The Cabinet Office—I would
say that it was inappropriate to say that entire meetings were
confidential advice to ministers and they cannot tell you anything
at all. The other organisation I found that did a sort of half-refusal,
and we have now gone to the Information Commissioner, was the
Office of Government Commerce, where, rather like the situation
over money spent on subsidies, we wanted to know the reports on
all the computer systems across Whitehall; because there has been
a lot of public interest in why these are failing. We wanted to
know the gateway: not every single report, because there are about
450 of them, but what the classification was. What we got was
that they listed the reports, but banned the classification. They
then stuck at this, so that basically the information is useless.
There were also 10 letters, which again was a rather weird situation,
where permanent secretaries across different departments had been
told by the OGC, "You have had a double red"—which
basically means, "Twice we have realised that the computer
scheme you are going to introduce is not going to work".
They released the text but they removed the computer scheme, who
it was written to, and which department. So, again, you could
not use the information. It was a rather subtle way to refuse,
saying, "We have agreed to part of your thing but it is not
real . . .", and that at the moment has gone to the Information
Commissioner and we are awaiting the result.
Chairman: We will turn to the Commissioner
now.
Q108 Julie Morgan: I want to ask
you about the Commissioner's performance and, in particular, the
backlog of appeals cases. I wonder if you could make some comment
about what problems this backlog is causing.
Maurice Frankel: I think that
there are two problems. One is the backlog and one is the quality
of the notices and the investigations. Obviously if people wait
a very long time for decisions to come out, all the way down the
line, including the Commissioner's office, their incentive to
carry on making use of the Freedom of Information Act goes down
quite a lot. In a sense, one could say let us hope the backlog
gets sorted out, as long as the decisions are the right decisions.
What I am worried about is the quality of the decisions, which
I think the tribunal is highlighting in a series of cases. That
is worrying. When this enforcement arrangement was introduced
I think that people assumed—we certainly assumed—that
the tribunal would be there to hold the Commissioner back. In
practice, what the tribunal are doing is pushing the Commissioner
forward and saying, "No, you have not looked at that carefully
enough".
Q109 Chairman: Have there been many
tribunal cases to do that with?
Maurice Frankel: There have only
been about eight or nine, but that has been the effect. There
has been a substantial criticism of the Commissioner's approach
in two, and implicit in at least two of the others. It is very
noticeable that this is not on sophisticated, difficult issues;
this is on stopping the investigation at a very early stage and
simply accepting the assurance of an authority, or producing a
decision notice that does not set out the thinking properly, or
not pursuing an issue to the end and stopping much too early in
the examination of the thing. If we had the Scottish system, the
Scottish commissioner is not subject to a tribunal: only an appeal
to the court on a point of law. If we had that situation, I think
that we would be very worried about it, because we have a feedback
loop. You can see the Commissioner's decisions now, the most recent
ones, reflecting some of what the tribunal has said in earlier
decisions; but it is a worrying series of criticisms that have
been made by the tribunal.
Q110 Julie Morgan: You are more concerned
about that than the backlog, are you?
Maurice Frankel: I am more concerned
about that than the backlog. I am concerned about the backlog,
because you have two things. You have a lot of unhappy people
saying, "What's the point of this Freedom of Information
Act if I can't get a decision?" and you have bad practice
becoming entrenched, if it is not corrected at a reasonably early
stage.
Steve Wood: I think that it is
partly the perception which builds up from the backlog in the
public authorities themselves. I would say anecdotally, having
spoken to some FOI officers at conferences over the last few months,
that at senior levels in, say, local councils, a risk analysis
was taken when FOI was coming in and they obviously saw the risks
of breaching the Act. Now, however, a perception may be building
up that the Information Commissioner perhaps lacks the authority
to be able to get through these cases quickly, and they may be
downgrading their risk analysis to do with what they think the
risks from the Act are to them, and therefore they may be moving
resources away from managing FOI.
Q111 Chairman: Is there any evidence
of that, or is it just a supposition that they might do that?
Steve Wood: Speaking to some FOI
officers, I think that is the worry—that resources will
be taken away. The FOI officers are very important people in any
public authority, because they are the gateway; they are the people
who can make the case for how an FOI request should be managed.
They are very important people, and that is what I have picked
up from their opinions, having spoken to some of them.
David Hencke: The one case, which
is the computer case, which I have got to the Commissioner, gives
me the feeling that they are not very well organised. The first
thing I got was a letter back saying, "We can't look at this
for two months". I then made some discreet enquiries, as
you would as a journalist, and found that my request about these
IT schemes was not too different from a request by a computing
magazine which they were looking at, and no one seemed to have
cross-referenced or prioritised or thought, "Oh, there's
a similarity here. We should look at the two together". So
I get a feeling that they need to prioritise what cases they are
looking at, and then they might not get into such a backlog. I
also rather wonder about the resources that they put aside for
this, because there seem to be far more cases coming up to them
than they obviously anticipated.
Steve Wood: I would echo the comments
made by David. I think that Richard Thomas has called it the triage
of the cases when they enter into the office. From the data which
I have seen, released from some of the request logs which some
people have requested, it seems that there have been different
ways of recording quite basic types of data. The MoD has been
recorded different ways, as a public authority. It seems to be
that, as David was picking up, things are not being drawn together
and dealt with in a manner of being prioritised.
Q112 Julie Morgan: The Commissioner
told us that he has a recovery plan to deal with the backlog.
I wonder if you have seen any changes since this recovery plan
has been put into operation, which I think is over the last two
or three months.
Steve Wood: In terms of the prioritisation,
they have moved towards some more important, perhaps precedent-setting
decisions, like the cases over the release of officials' names;
cases relating to the release of restaurant inspections, for example.
So they have moved on to some of the more important cases, away
from the process-centric cases. That has perhaps been one of the
big advances in the last few months, and more of those cases seem
to be coming up week by week. That would seem to be the advance.
However, the backlog is so huge that it is hard to tell how much
they are eating into the actual backlog.
Q113 Julie Morgan: Any other comments
on this recovery plan?
David Hencke: I have not noticed
a lot.
Maurice Frankel: I think that
it is too early to see significant progress from the recovery
plan. I think that it is too recently implemented.
Q114 Julie Morgan: The Information
Commissioner has told us that he had chosen to adopt a relatively
tolerant approach during the first year of the implementation,
to enable the local authorities and other public bodies to become
familiar with the legislation. Do you think that he should have
taken a firmer approach in 2006? Do you think that it would be
a good idea, longer term, for that to have happened?
Maurice Frankel: I do not think
the firmness of the approach is the problem. Organisationally,
they look like there have been serious gaps behind the scenes
in how cases are managed and handled. The fact is that the Freedom
of Information officer is in a rather strange situation. Quite
a number of them are very positive about the legislation. When
they come to conferences where the Commissioner or the Commissioner's
staff are there, I have been very interested to see that they
have been asking, "What are the sanctions against us if we
don't comply?". The Commissioner's people have sometimes
said, "We will be pretty tolerant in the early days"—and
they have been disappointed. They have a problem back at home,
getting the resources, getting the attention paid, getting this
taken seriously. They do not want to come back and say, "The
Commissioner is going to be fairly tolerant while we are all learning
how to do this". They want to come back and say, "The
Commissioner is going to be down on us like a ton of bricks if
we don't get this right. Get this right. Put the staff in now.
Get the training in now". Although I can understand that,
I think that the system looks for some sort of strict enforcement.
I accept that when people are acting in good faith but not getting
it right, you do not come down on them very hard; but people who
are not spotting "This is a Freedom of Information request",
people who are sitting on them for weeks and weeks and not answering,
people who are not applying the exemptions and public interests
properly—I do not think even the authorities, the serious
authorities, expect the Commissioner to be baring his teeth actually,
and the system requires it.
Q115 Barbara Keeley: There are some
questions about the government clearing house which advises on
complex requests and the correct application of legislation. Do
you think that the information provided about that central government
clearing house is sufficient to ensure that the Department for
Constitutional Affairs is accountable for the clearing house's
activities?
Maurice Frankel: We are kept a
bit in the dark about what goes on in the clearing house really.
Towards the end of 2004, the clearing house itself published its
triggers and its procedures, which I think was very helpful, very
illuminating. They are much more cautious about what they release
now. My impression is that if they had not released that at the
end of 2004, if one asked for it now, we would not get it.
Q116 Chairman: You could do an FOI
on the clearing house, could you not?
Maurice Frankel: Yes. I do not
think that we would get it.
Q117 Chairman: Public interest?
Maurice Frankel: I am sorry?
Q118 Chairman: If you did an FOI
request on the clearing house, what sort of exemption could they
use?
Maurice Frankel: I would not be
at all surprised to see "prejudice to the effective conduct
of public affairs" being used. This is one of the problems,
about how much of that process is in the open and how much is
behind the scenes. It is an area of contention between numbers
of requesters trying to find out what is going on and the Government
that says, "Our process is, for us, you should just be concerned
about the output". I made a request last year for the internal
reviews carried out by government departments, for a sample of
them, and the correspondence that they had had with the applicants.
Nothing private; simply the material that was in the applicants'
hands, and I said that I would have that anonymously, without
the names. I spoke to the clearing house informally and told them
what I was doing, and asked them if it caused them any problem.
They said no. Three or four weeks later I started getting my requests
refused and discovered that the clearing house had advised departments
to refuse to release their internal reviews to me, on the grounds
that the information was not held in the form requested. So they
were not even using a particular exemption. What I thought was
very interesting was that there was no attempt to provide advice
and assistance; there was no attempt to explain what was meant
by that term. Three government departments ignored it and provided
the information to me, and several government departments, led
by the Ministry of Defence, formally challenged the DCA over the
refusal, on the grounds they did not believe that there were lawful
grounds to withhold the information. I think that we are in a
very strange situation where the Ministry of Defence—and
the Ministry of Defence has been noticeably good under the Act,
by the way—is challenging the body responsible for Freedom
of Information on the grounds that it is being too secretive.
As a result of that, the clearing house revised its guidance and
encouraged departments to release the information—after
I had made independent challenges to each department. That is
symbolic of a problem of a kind going on behind the scenes about
responding to these types of enquiries.
Chairman: I think that a member
of the Ministry of Defence earned a brownie point by producing
rather good posters, one of which appeared on the front of our
report, to remind staff of the impending obligations.
Q119 Dr Whitehead: When the Lord
Chancellor came before this Committee, he seemed to be somewhat
concerned about the extent to which public time and money might
be being wasted with frivolous requests. Although he did not suggest
that the £600 figure was the wrong figure, he did raise the
question of whether further time and money in preparing information
might be taken into account within the £600. He suggested
that reading and reviewing files time—presumably a differential
scale, depending on the seniority of the person reading the file—might
be a good idea. What is your view of that?
Maurice Frankel: I think that
we would see an immediate crash in the volume of requests receiving
replies. Although it would not be putting the fees up, it would
be saying that you would have to ask for a very small amount of
information in order to get your request through the cost limit,
compared to what you ask at the moment. I think that, coming at
this early stage in the life of the legislation, it would be a
very regrettable step to take. At the moment, we do not want to
give public authorities more barriers, better armour to defend
themselves against requests. I accept that they are getting a
lot of work. Some of these requests are causing them a lot of
work. The problem is that the moment you start to say that you
will take the costs into account at £25 an hour, I think
you will probably find that half of all the requests that are
now being answered will be refused on cost grounds. It would be
much better to let the system work itself out and leave authorities
to try and make themselves more efficient in handling the requests;
to learn about the use of exemptions; to learn from the case law
that has gone before, so that they can more quickly decide whether
they have grounds to withhold or not; to improve their record
management; to improve their publication schemes. See how much
progress we can make that way, and not erect new barriers, particularly
at this early stage when we are just beginning to see the change
starting. It is a very, very early stage to make a fundamental
change to the charging rate, or the level of requests that are
going to be answered.
Steve Wood: I would agree with
Maurice's comments there. I think that in moving towards the point
of having a fees review and what the Lord Chancellor is proposing,
it would be good to see more detailed evidence and analysis of
the types of requests which are perhaps causing the problems and
causing a larger amount of time than they had perhaps expected
to be spent on these requests. We have only had anecdotal evidence
so far. I think that it would be much better for a fees review
to be a much more open consultation process, because I feel as
though there has not been much interaction between the DCA and
the users of the Act over this issue. I do not think that we are
in a position to move towards making a decision without having
looked at a lot more evidence, in terms of making a decision about
whether the suggestion the Lord Chancellor has made is the right
one.
David Hencke: I was dead against
this. To be quite honest, I think that it is rather a weaselly
kind of way of making sure new legislation—which I believe
is beginning to work and giving, not just journalists but the
general public, much more information about the way they are governed
and what is going on—is really severely restricted. I imagine
that the Cabinet Office would immediately refer to the most senior
person possible at £100 an hour so that they can look at
it for two minutes, and say, "No, we can't afford this"!
I really do think that this is a crafty way to deal with this.
Also, it seems to ignore one other important point in the legislation:
that if you make vexatious requests which could be considered
trivial, continued requests, they are perfectly entitled to write
back and say, "No, that's it. We're not looking at this any
further". He seems to have forgotten that in his drive. You
realise that if he introduced fees, or heavy fees like they have
done in Ireland, it would be very unpopular; therefore, he is
trying to find some weaselly way round. He may have even picked
up from the crafty pressure that is going on from the Inland Revenue
over being overrun, I gather, with tax forms. They are trying
to argue, I notice in the Public Accounts Committee, for a charge
for the taxman's time for looking at your tax return if it is
beyond a certain date. You can just see this spreading across
government..
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