Examination of Witnesses (Questions 180-199)
BARONESS ASHTON
OF UPHOLLAND
18 APRIL 2006
Q180 Chairman: One of the first bad
examples we were given of this came from your own Department.
It was a case where the Department had set a deadline of the middle
of July, I think, for completing its internal review and then
extended its deadline to the back-end of August. At the end of
August, the Information Commissioner refused to take action on
the complaint because the internal review was still taking place.
There are few things more frustrating for the applicant than to
be told that the Commissioner cannot do anything because they
are carrying out an internal review and they have not met their
timetable, but it is still going on. Apparently it took 58 business
days to complete this review. Is that a case you know about?
Baroness Ashton of Upholland:
I know about the case a little bit, I do not know the detail and
therefore cannot go into it. Of course, I understand completely
the frustration of the applicant who feels that the Department
is not responding in a timely manner in the way they would like
and equally that they cannot get something else to happen. What
I would say is that there is no evidence to suggest, particularly
in my own Department, that people are being deliberately slow
or are deliberately holding things up. Chairman, it is sometimes
that these are very complicated and complex questions being asked
and often other people need to be consulted. For example, information
that was required which perhaps spanned back into a previous administration
requires information to be sought from them, advice from them
or indeed their acquiescence to what is going to happen. It is
not always as simple as just going through a paper file and finding
information that can be released, sometimes there is a lot more
to it. The evidence thus far that I have seen suggests to me that
is when those delays occur. There are two things which I think
are quite important in the example you give. Firstly, are we good
enough at keeping the applicant informed about what is happening
so they do not feel they are just being left and nothing is going
on? I think that is a good question and one that we need to think
about more carefully as individual departments. Secondly, to make
sure that within, as I have already indicated, the guidance we
give people we are clear about what is a reasonable length of
time to which perhaps the Information Commissioner might want
to say, "This is way beyond what the guidance would say".
I think there are more things we can do. What I would be reluctant
to say is we can speed up the entire process internally on what
might be a very complicated and new area which needs to be explored.
I am not sure we effectively keep the applicant as informed as
we might.
Q181 Dr Whitehead: You have mentioned
a couple of times this afternoon the clearing house, the operation
of it and your view that that is working well. However, we have
heard evidence from some other jurisdictions that their clearing
houses for their FOI Acts have in fact led to delays. Do you think
that is true in the case of the UK clearing house, ie they have
contributed to the delays that there already were?
Baroness Ashton of Upholland:
I do not think it is contributing to the delays, but inevitably
if the clearing house has been consulted, then they will need
to look at the particular issue. I think I gave an example that
you can have a piece of information which is being sought right
across government where the clearing house might play a role in
supporting all the departments to try and pull it all together
in a good consistent approach to it. It is not so much that it
delays it but inevitably that takes time to get right. Again,
I suspect this will get better and faster as we get more used
to doing it. It is not contributing to delays in the negative
sense, but certainly they have a role to play in making sure the
advice they give to departments is accurate and that takes time.
Q182 Dr Whitehead: We do not know,
do we, whether the clearing house contributes or does not contribute
to delays because the information about the time the clearing
house takes is not published?
Baroness Ashton of Upholland:
The information about the clearing house will appear on the website
and, of course, is available in the annual report. What we have
been quite clear about is that we need the space for the clearing
house to be able to talk to departments in quite an open and candid
way about what is happening. Therefore, it is not that we are
trying to prevent giving out information we have about the clearing
house, it is simply the nature of its operation that it needs
to be able to do that.
Q183 Dr Whitehead: With respect,
that is a different issue. The question of how people within the
clearing house, as it were, might discuss the relevance or non-relevance
of disclosure or methods of disclosure of particular information
and the amount of time that discussion takes are two distinct
things, and yet the length of time required for handling requests,
I think, is exempt under section 36. Do you think there is any
good reason for this?
Baroness Ashton of Upholland:
Although you make the distinction between the two bits of the
process, for me they are part of the same process. The kind of
advice and the length of time it takes go hand in hand, as far
as I can see, with the operation of the clearing house. The point
I was trying to make—and you are quite right that I addressed
the other half of the hand in hand part of it—is that depending
on what the clearing house is seeking to do and to which government
department, the length of time it will take or, to use your phrase,
the delay as it might be perceived will vary. It would be very
difficult to say, "A piece of advice that was given to X
government department required five days", if you do not
know what that advice was about because that may feel inordinately
long but may be completely appropriate in the context of what
the advice was. I am only trying to say that those two things
fit so closely together I think it is very difficult not to mislead.
One of the things about Freedom of Information that is absolutely
critical, in my view, is context, that if you give people information
without context it can be misleading of itself. For me, that would
be a piece of information that had no context.
Q184 Chairman: I have a very uneasy
feeling about those answers, that they are exactly what the Department
would say were the reasons for not disclosing information in the
first place. Here we have got the clearing house, which is supposedly
encouraging a culture of openness, saying, "We cannot be
open ourselves because of how long it takes us to decide"
or "That is a very sensitive piece of information".
Baroness Ashton of Upholland:
I am sorry if I have made you uneasy. It is my view of what should
happen; there is no departmental brief on this. It is how I think
the clearing house has to operate. What I was trying to say was
it is not about a piece of information in this particular context,
as Dr Whitehead has said, about the length of time, that I think
tells you very much if it is not within the context of what that
information was seeking to achieve. If you have to, for example,
go back and check with different individuals, you have to take
advice in greater detail on a particular request, it will take
longer de facto. That of itself is not an inherently bad thing,
but if one simply publishes the length of time of itself, then
the implication could be somehow the clearing house was taking
a long time. I think that is quite different. I know what you
are trying to say, Chairman, which is to say, "In the context
of Freedom of Information within government departments we are
expecting them to be open and clear about their information",
I have no difficulty with that. You will see that a lot of the
information about how the clearing house is operating in any event
is published in the annual report. A lot of the issues about time
will be dealt with there.[1]
If the specific question is "Can we just talk about the particular
length of time?", my nervousness would be it does not tell
you anything unless you have got the context of what we are seeking
to do.
Q185 Dr Whitehead: But the question of
the judgment of the context is entirely within the hands, as it
were, of those people who are deciding not to reveal any information
because it might be de-contextualised. Is that not a problem in
terms of how one might judge whether the process of delay is because
people have not got on with it very quickly or because, as you
have quite understandably suggested, there are circumstances under
which delay is caused by the fact of finding context?
Baroness Ashton of Upholland:
Of course, and that is why with the information we provide in
the annual report about the work of the clearing house, which
is part of the information we produce, we are trying to give as
much information in the public domain as possible and that will
deal with the contextual issues as well. I am not trying to suggest
that we should never publish timescales, I am simply saying that
an individual request is quite difficult to demonstrate.
Q186 Chairman: You sound like a Department
resisting the Freedom of Information Act by saying, "We publish
lots of information in our annual report, you can read that, and
it is on our website. With some of these detailed questions people
would not understand the answers if we gave them out of context".
How many times have we heard that sort of answer before we got
FOI, now we have got it and you are still saying it?
Baroness Ashton of Upholland:
I am not saying that. With all respect, Chairman, I am not trying
to say it in a sense of not trying to give information, I am simply
saying that in the context of what we are trying to do within
the clearing house I would be keen to make sure the information
was given appropriately, that is all. I am not trying to say we
should not publish information about the work of the clearing
house, I am simply saying in response to Dr Whitehead's question
that the two things go hand in hand. We should make sure we give
the information properly and fully if anything. I am trying to
argue the opposite point. I apologise if I sound like the Department,
perhaps I have been here too long.
Q187 Dr Whitehead: Would it be the
case that rather like having access to a file, some of which contains
deleted items, one could easily publish quite a lot of this material
whilst not publishing other elements of it, rather than saying,
"All of this is exempt because of the question of context"?
Baroness Ashton of Upholland:
I would not want any situation where everything is exempt because
of context, I merely think you have to publish context alongside
it, that was my argument. It is not that you withhold because
of context, but rather that context is a relevant part of it.
If you were going to give information, just like with a file where
there may be things which have to be withheld, the more that you
give, the more that you give the context, the more that people
understand the information that is being given. It is the opposite
argument than the one that I think the Chairman thinks I am putting
forward, which is that the more information you give about what
you have done, why you have done it and what happened, the better
informed people are. The purpose of Freedom of Information above
anything is better government.
Q188 Dr Whitehead: Perhaps at least
a partial publication of these matters might be beneficial in
obtaining understanding of context rather than not?
Baroness Ashton of Upholland:
I would be very keen to make sure that the work of the clearing
house is understood not just within government but outside and
that people can see that it is doing an effective and good job.
If people believe that there are significant delays in the work
that is happening, then the best way to counter that is to put
as much information out as you possibly can about what is happening.
My argument was purely that if you simply put numbers down of
how long it takes on a particular issue it does not help you,
but if you say, "In looking at these issues this is what
we did and this is the kind of work that was undertaken",
it makes more sense. I am arguing the opposite, I am arguing for
greater information to be available in a timely and consistent
manner.
Q189 Dr Whitehead: Can I turn to
the question of advice to other organisations other than central
government departments. I understand, for example, that the Association
of Chief Police Officers have had considerable advice from the
clearing house which they have greatly appreciated in terms of
complex cases and legal arguments. On the other hand, there is
no co-ordinating central advice for local authorities and, indeed,
they mentioned to us in evidence that this was a concern as far
as the operation of the Act was concerned. Do you think the clearing
house could expand its role in terms of providing that sort of
advice beyond the sort of arrangements which are presently held
with ACPO?
Baroness Ashton of Upholland:
I read the evidence that was given to the Committee with great
interest and it was the representative of Islington who described
that particular concern. I am not sure whether I think the role
of the central government clearing house is appropriate but it
is something I plan to pick up in my next discussion with the
Information Commissioner. Rather like what the police force have
done, where they have developed that themselves, I think there
could well be a case for local authorities working together to
develop some kind of clearing house system themselves. We would
be willing, and I am sure very keen, to support them in any way
that was appropriate to do that, but I felt that I should first
of all talk to the Information Commissioner about that and also
with the local authorities too. I have no objection to that. I
do not think central government would be right for that, but I
do think there may be a resource which they could develop themselves
that we would be keen to support them with the knowledge we have
got.
Q190 Dr Whitehead: Do you think that
perhaps publishing at least some information, as we have discussed
previously about the clearing house's advice, might be useful
in terms of at least enabling other non-central government authorities
to benchmark some of how they might respond collectively to FOI
requests?
Baroness Ashton of Upholland:
That is an interesting thought. Certainly the experiences we have
got from the clearing house and certainly the work that ACPO have
done, both of those are relevant if local authorities in particular
are finding there is a gap which could be dealt with by some kind
of clearing house function. All of the experience we have begun
to develop, and certainly again from the experience that the Association
of Chief Police Officers have got, would be appropriate to be
fed into that, so I would be very keen to do that.
Q191 David Howarth: You mentioned
in your remarks the backlog of cases and the recovery plan and
I was interested in the situation on that. The Commissioner told
us that he would need additional resources to deal with the backlog
and I was wondering whether you have reached any agreement with
the Commissioner about those resources?
Baroness Ashton of Upholland:
We have. I hope we have been reasonably consistent with the Committee
and certainly with the Commissioner over the time that I have
been within the Department and been very clear that we would want
to hear from him about additional resources which he might need.
You will know that he submitted a request for additional resources,
those discussions have been ongoing. The Commissioner's budget,
as you know, is £5 million and he has identified £300,000
that he believes could be saved in greater efficiencies. We plan
to give him an additional £550,000 which means there is £850,000
available to him. His request was for slightly more than that,
however these are not easy financial times for all organisations
and we think we have given him quite substantial extra support
which will enable him to develop the resources that he needs to
be more effective.
Q192 David Howarth: I think his bid
was £1.13 million, so he is about £300,000 short. Was
there any particular aspect of the recovery plan that you decided
was not needed in coming to that figure or was it just knocked
back as a percentage of the bid?
Baroness Ashton of Upholland:
It was looking at the particular aspects of what he was seeking
to do. Obviously this was dealt with at an official level and
not a ministerial level in terms of the detail, though I am very
happy to write to the Committee and give further information about
that. It did seem to us that amount of money would enable him
to move quite considerably towards tackling the issues that he
has. He is also waiting for, though I have not seen myself and
there would be not reason why I should at this point, the report
from the consultants that he had employed to support him in looking
at greater efficiencies and management structures and so on. We
hope the combination of those two things will give him the resources
he needs to tackle the issues which he is concerned about.
Q193 David Howarth: To put it a slightly
different way, given the resources that are now going in, what
percentage chance would you give for the recovery plan working?
Is it 50:50, 75:25, 90:10?
Baroness Ashton of Upholland:
I hope the recovery plan will be entirely successful. Of course,
I think the point about Freedom of Information is that it is still
a changing and moving market, if I can describe it like that,
where one is never quite sure what is going to happen next. Again,
the Information Commissioner and his team of people in Wilmslow
in particular—and I know you are going to visit Wilmslow
quite soon where you will meet some extremely able people who
are doing a good job in sorting out and working through a whole
series of issues—will get quicker and faster at doing that
because their experience grows all the time. We will all gain
greater knowledge which will enable us to tackle some of these
issues more quickly than we do now. The combination of that, the
settling down of Freedom of Information and the ability with the
additional resources to tackle the problems in the way that he
thinks best I believe should be able to deal with the problem.
Q194 David Howarth: You talked about
changes, one of the changes that already seems to be apparent
is that the number of information tribunals is going up and the
predicted number for 2006 is already increasing. Has that sort
of change been taken into account in the budget for the coming
year or is the Commissioner always going to have to play catch-up?
Is he always going to be bidding for additional resources at the
end of the year to meet shortfalls which will occur because of
change during the year?
Baroness Ashton of Upholland:
I hope we are not in a position where the Commissioner is always
playing catch-up because partly stability should start to settle
and as soon as it does settle down it becomes a more stable situation
and one can predict more easily. You will know from the Commissioner's
evidence, and certainly from my own experience of discussions,
that some of the things were predicted very well, other things
were very difficult to predict and the margins were quite large
in terms of what could happen. Again, the aspiration, and I think
what is more likely to happen, is that the numbers will start
to stabilise where at least one will be able to expect growth
where you think it may occur. We hope that the Commissioner and
ourselves working together—and we have a very strong relationship,
though he is, of course, entirely independent of us in terms of
developing the resources that he needs—will get better and
better at prediction and more able to ensure that we get the right
kind of response from his work to enable us to tackle the problems
he has got.
Q195 Chairman: As long as we are
dealing with resources, we found a bit of difference between the
Scottish and English structures in that not only were the salary
levels different—generally better in Scotland—but
the Commissioner in Scotland seemed to have more direct control
over the salary levels of the staff and was not so dependent on
the Department's approval either of the specific staff numbers
or of the salaries that they are paid. Do you think the Commissioner
should have more freedom to resolve these sorts of questions?
Baroness Ashton of Upholland:
We have involved ourselves in the structuring and grading review
which the Commissioner has undertaken because we think we have
got some expertise to offer him. Again from reading the evidence
that was put forward, I know that the Commissioner clearly expressed
concern about some of the salary levels. I think he described
the lowest of the salary levels, there are higher levels. There
is a kind of combination of issues there: one is does he have
the right people at the right level, which might affect the grading
and salary structures and whom and what are the skills that might
be needed in order to do the job now, in six months' time and
in a year's time? What I am hoping we will see from the review
that has taken place is some real assessment of where the levels
ought to be, how people can be rewarded appropriately, what level
of skill base we need to have within the Information Commissioner's
staffing regime and the roles people should be performing, not
least to enable the Information Commissioner himself to be freer
if he needs to be to do other tasks or take other challenges.
With any luck, what we will see is a better indication as to whether
we quite got it right at Wilmslow. Certainly the impression I
got, again partly from reading the evidence he gave to the Committee,
is that his ambition would be to achieve that as well. We are
not trying to second-guess or get in the way of the way in which
it is structured but rather to support and help where we can to
get that right.
Q196 David Howarth: There is another
difference with the Scottish Commissioner and that is he appears
to report directly to the Parliament rather than through a department.
Could it be that that gives him an extra degree of freedom in
the way that the organisation is set up?
Baroness Ashton of Upholland:
I think of the 12 bills I have done, we spent nine of them having
discussions about whether or not bodies ought to report directly
to Parliament or through ministers, so I am quite familiar at
one level with this issue. I do not believe that it creates a
particular difficulty for the Information Commissioner in terms
of his independence. What it does is make it quite clear that
there is an important role for government in responding to Parliament
in terms of the work that is going on with particular bodies,
in this case the Information Commissioner. I do not think it has
any impact that I can see on that. We are very concerned to make
sure that the Information Commissioner is independent. After all,
the credibility of the Freedom of Information Act in part rests
on him being seen to act independently of government, and I do
not think there has been a suggestion that I have heard that he
is anything other than independent.
Q197 Chairman: The Ombudsman and
the Comptroller and Auditor General are creatures of Parliament,
report to Parliament and indeed the salary levels of their staff
arise from the parliamentary process rather than governmental
side.
Baroness Ashton of Upholland:
That is true, but I do not think they are quite in the same category.
I know I am going to get myself into deep water here because,
Chairman, you will know far more about this than me, but certainly
in trying to set up organisations where it is up to government
departments to fund them, it is important that they have a relationship
with the ministers involved and it is important that the ministers
take their responsibility seriously to Parliament on behalf of
the Government to respond but also make sure that there is clear
space between the independence of that body or that individual
and the work that the Government undertakes. It feels to me we
have got that right with the Information Commissioner. We are
trying to be a supportive department, but also be absolutely clear
he has his own independence and he must operate in the way he
thinks fit.
Q198 James Brokenshire: I just want
to move on to the question of decision notices and obviously the
more limited number that we have had thus far over the course
of the first year. Your Department said in its submission to us
that: "the limits of a number of exemptions are still being
explored and tested and this will continue to pose a significant
challenge until a body of case law emerges". I think that
probably reflects some of the comments you said to us this afternoon
in terms of the fact you are grappling with very new law and the
question of guidance was urgently needed. Against that backdrop,
do you think that the Commissioner should place a greater emphasis
on issuing decision notices, which remain the scope of the exemptions,
even though this is more expensive and there is more cost involved
in looking at these complicated matters rather than as the focus
has been thus far on perhaps more procedural related matters?
Baroness Ashton of Upholland:
I hesitate to be absolutely clear about that, Mr Brokenshire,
because in a sense it is for the Commissioner himself to decide
what approach he wishes to take. I know that, in some senses,
his need to be very firm and very clear is something that has
been challenged in both directions. People have felt that he needs
to be more focused on procedural issues and making sure that things
are working well in the first year or so in order to give people
confidence and support, and in another way that he ought to be
more clear, straightforward and heavy-handed in that sense about
what ought to happen. He has sought to get that balance about
right and I think probably has. As we move on though, I think
it will become more important for him to develop that knowledge
in order to give greater clarity perhaps earlier on.
Q199 James Brokenshire: Clearly,
this is a priority, given that you have said this afternoon that
this guidance is urgently needed.
Baroness Ashton of Upholland:
I did not say this guidance was urgently needed. I think what
I was saying was that we are planning to review the guidance and
it is important that when we do so we think about whether or not
we can give greater clarity now that we know more, that helps
people understand. For example, I think the issue we were talking
about was the timescales involved for how long people should spend
reviewing or looking again at particular issues. We did not have
the information about what that would mean and how long that would
take when we set up the guidance. It is always good to keep guidance
under review and to make sure that we have got it clear; it is
not urgently needed because I think there is something terribly
wrong. I think when we look at the guidance we need to make sure
that we have given people as much information as possible.
1 Note by witness: Clearing House referral
numbers will be included in the FOI Annual report but not the
length of time taken by the Clearing House to provide advice Back
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