Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 200-219)


18 APRIL 2006

  Q200  James Brokenshire: The impression you have given us this afternoon is that this is very much, "Well, we are feeling our way. It is a question of dealing with the new law that there are not any systemic problems". Why do you think, therefore, that the Information Commissioner told us that he was meeting "pockets of resistance"?

  Baroness Ashton of Upholland: Because from his perspective—again I have asked him about this—he is concerned to make sure that in government departments or anywhere else people are using the Act and understand what it means. Again, at one level, it is not surprising that from his position, as he tries to get people to move more quickly and to deal with issues, he may feel that there are pockets of resistance. He and I need to discuss those issues, as he does with the Lord Chancellor and with the Department, to make sure there are ways in which we can support and help him to make sure that he does not hit pockets of resistance.

  Q201  James Brokenshire: Just to be clear, from your perspective, you think it is a question of perception on the Commissioner's side rather than there actually being real pockets of resistance there?

  Baroness Ashton of Upholland: I think that we need to clarify what is happening because if what the Commissioner is seeing or feeling is that people are being unnecessarily slow, then there is a question of "Does that mean we need to give people greater guidance as to what ought to be happening? Is it that people do not understand what a reasonable length of time is? Or is it that there is a lack of understanding about what the Act means for them and therefore they need to get greater support or indeed—dare I say—training to understand what they need to do?" Other people, for whom the Act is not the priority, do not understand that they really have to do this and therefore we need to chivvy them up more to do that. In other words, pockets of resistance could mean a number of different things and what we need to do is get underneath the phrase to understand precisely what is happening.

  Q202  James Brokenshire: Is that something that you intend to follow up with the Commissioner given his comments?

  Baroness Ashton of Upholland: Indeed, we regularly meet with the Commissioner in any event and try and tackle particular issues of concern, and reading his evidence there are one or two issues, as I have already indicated, that I have already asked him if we can discuss in more detail so that we can help where it is appropriate for us to help.

  Q203  James Brokenshire: Have there been any cases where government departments have refused to provide information requested by the Commissioner and, if so, can you tell us anything about them?

  Baroness Ashton of Upholland: I cannot give individual examples of that; I do not have any to give you. If there are any, I will certainly write to you and let you know, but the approach the Government would take is to provide the Information Commissioner with information as appropriate to the Act. There is no resistance on behalf of Government to doing that. There may be occasions, as we have indicated, when requests come in from a variety of sources where there are issues to be explored. Whether that translates into any way in which the Commissioner would not be given information, I cannot imagine, but I will certainly make sure that I give you the full information on that.

  Q204  James Brokenshire: We have talked about the pockets of resistance and the fact that some people might need to have greater emphasis given to them on the importance of dealing with these requests and complying with all the guidance and information, but are there any practical steps that your Department is taking at the moment to ensure that other government departments are fully cognisant of their duties and responsibilities and co-operate fully with the Information Commissioner? Clearly, it is all very well for him to provide the guidance, but I think we would all agree that there is a need for government itself also to be seen to be doing the right thing and complying fully with those requests.

  Baroness Ashton of Upholland: Indeed and the relationship with the Information Commissioner, his staff, officials and with ministers enables the Commissioner at any point to raise particular concerns he might have about government departments. Each department has a minister who has responsibility for freedom of information; if there are concerns, that minister would be contacted by me. I have not contacted any that I can think of in recent times because thus far things are moving pretty smoothly and officials are working very closely together, but the Information Commissioner is always able to come to us and ask us to intervene if that is an appropriate thing to do and we will.

  Q205  James Brokenshire: He has not come to you in the recent past with a specific request in that way?

  Baroness Ashton of Upholland: No.

  Q206  Chairman: Before we leave that, you have given us a supplementary memorandum covering many of these issues, but it does not give us any examples. It is very blandly defensive. You say: "There are examples when public authorities have taken additional time to consider a request but that time has been well spent".

  Baroness Ashton of Upholland: Indeed it has.

  Q207  Chairman: There is not a word or a breath of an admission anywhere in here that somebody may not be doing what they ought to be. You can be a bit more honest than that, can you not?

  Baroness Ashton of Upholland: It is not about being in any way dishonest. There is no evidence to suggest that there are people who are deliberately delaying the work that needs to be done. Some of it, as I have indicated, is quite complicated and complex and therefore it takes time. It is new and people will inevitably want to be very thorough and check out what they are doing. That is what we see; we do not see people being slow deliberately or being resistant per se. Perhaps we might write the memo slightly differently, but I would not want to give the impression that in any way do I see government departments being resistant in that direct sense, but rather it does take time to get things done.

  Q208  James Brokenshire: I want to come on to a slightly different point, perhaps the other side of the coin, which is the issue of the fees regulations. The Lord Chancellor told us that your department was considering reviewing the fees regulations partly because of problems caused by, I think the term was, "frivolous" requests. The Information Commissioner has told us that he considers the existing provisions for vexatious requests as being adequate, albeit that they may well be under-used at the moment. On that basis, why are you considering amending the fees regulations to deal with frivolous requests when there are these provisions that deal with it? Perhaps it is that that should be publicised more rather than just trying to raise the bar which could have the effect of blocking a lot of information requests and raises the issue of whether that is the point?

  Baroness Ashton of Upholland: We would not want to block any requests, of course. I think the issue of vexatious requests is one that we have to be alive to. It is not only that you get large volumes of requests on a particular issue, but you can have perhaps an individual who can send out hundreds and hundreds of requests and there is a difficulty I think—it has been brought to my attention within the Act—because we do not talk about somebody who might just spend a huge amount of their time asking lots and lots of questions rather we focus on a particular issue being overdone in that sense. The way that we have been looking at the fees—and we have not made any decisions or discussed this in any great detail—is much more focused around the length of time that people have to spend working on the information in order to read into where this information might be and find it all and so on. There has been a question raised, and it is no more than that at this stage, as to whether that time ought to be included in the overall time that we have available for people to access the information. That has really been the biggest issue for us.[2]

  Q209 James Brokenshire: If you are looking at adding in that time, there are some arguments also as to considering whether or not a request is reasonable and to looking at all the exemptions that might be applicable, that that also could be used and therefore you are almost automatically frustrating a lot of requests if that line of approach were taken. Do you accept that there is a risk, if you follow that line of argument, that rather than just dealing with vexatious requests, you could be blocking a whole number of other requests?

  Baroness Ashton of Upholland: We do not want to block requests. It is about the amount of time that people who are in public service need to spend to find a piece of information when some of the requests coming forward are in very general terms: "Can you find me everything on X?" or "Can you find something on Y?" where to deal with all of that information would take weeks, months and so on. It is possible to have a request that could take incredible amounts of time to find all the information before you even get on to the point about, "Well, is this information covered by of any of the exemptions?" It is not an attempt at all to prevent people getting information that they quite rightly should have in the public domain. It is simply recognising you have got public servants paid by us taxpayers to do a particular job and instead they are spending huge amounts of time simply finding files before we even get to the point of reading them. I think we just have to be aware that that is an issue. We have not made any decisions on it yet, but we do want to look at that and explore that with those involved to see whether there is something in this that we need to just take on board.

  Q210  James Brokenshire: Your words are you will "explore that with those involved". Clearly, there is some wide import and significance that you have highlighted during this exchange on the issue of this, the fact that there is no "secret plan" and that you are not viewing this as a deterrent effect really. Will you hold a public consultation before making any amendments to the regulations given the import and significance these changes will have?

  Baroness Ashton of Upholland: I think where we have to give public consultation, yes, we would, but we are nowhere near that stage yet. It is about "Do we need to think about these issues more fully?" If we then decide that we want to do something quite different around the fees regime, I think we have to do a public consultation in any event.

  Q211  James Brokenshire: Who would these relevant people be that you would be consulting?

  Baroness Ashton of Upholland: First of all, the User Group that we are just putting together now would be one particular group and obviously the broader public who are interested and involved in this issue. If we did a public consultation, it would be a standard public consultation that would be undertaken.

  Q212  James Brokenshire: I think you just said you would not go with a public consultation until later, so it would just be the User Group you would be consulting at the outset?

  Baroness Ashton of Upholland: It would be the User Group, government departments, local government, others who are both actively involved in giving out information and those that we know are actively involved in seeking information, because it is quite important to have that dialogue to see whether or not we need to look at any other issues as well. There may be issues that people raise that are of genuine concern, but the biggest one that I keep coming across is people saying, "There is a lot of time that we have to spend in trying to find the information". Question: should that be part and parcel of what we cover when we think about the time that people spend? There is a genuine question I think to be answered on that.

  Q213  James Brokenshire: Is that not inherent in seeking some quite difficult answers? It is obviously quite an easy response to give: "Too much like hard work".

  Baroness Ashton of Upholland: If that were the response, then I think we have failed in the exercise. That is why essentially we have to think about "Is that an issue we need to explore further?" Certainly there seems to be an indication that some requests are so general and so broad, people could spend a huge amount of time—and I do mean weeks and months—trying to find all of the information that is relevant. Is it appropriate that that is covered just by the standard process or do we need to think carefully about, in those particular circumstances, whether or not that should be covered in a different way? That is a bigger question, because it may be a member of the public, a large organisation, or, for example, a journalist wanting particular information, quite rightly, to cover a wider subject. We just need to think about whether there are any issues in that that make us need to reflect on the fees regime because it is public servants who are then spending their time doing that and not doing their jobs.

  Q214  Chairman: It must be very irritating having to release information on "How many flights the Prime Minister has made in an aircraft of the Queen's Flight?" I can imagine somebody coming along and saying, "This is time consuming, collecting all this information". The Lord Chancellor used the example of how many lavatories there were in the building.

  Baroness Ashton of Upholland: Yes, "How many windows does the Department for Education and Skills have?"

  Q215  Chairman: They were on the scale of where you quite soon get to the point where how many of something is quite a significant piece of information.

  Baroness Ashton of Upholland: Yes, I think another one is "How many bachelors are there in the police force?"

  Q216  Chairman: The significance extraordinarily escapes me.

  Baroness Ashton of Upholland: It depends who is asking, Chairman.

  Q217  David Howarth: One thing that I am not completely clear about is what your view is on the principle of whether or not using the price mechanism is an acceptable way of trying to control this particular problem. It seems to be there are two options here. One option is built into the rules which can then be reviewed and challenged: "This request is too general, too vague, requires too much work", then you have got an answer which can be looked at by an appeal system; that is one possibility. Another possibility is to say, "We are going to charge you more and put you off with the price mechanism". It seems to me, as a matter of principle, that the price mechanism is an unattractive option in this sort of area, so have you come to a decision on this?

  Baroness Ashton of Upholland: I have not. I am not trying to suggest that all the open-ended requests are vexatious either. I think there is a question, which the Information Commissioner has been very keen to address, about giving clearer guidance about what is a vexatious request and when it is reasonable to refuse it on those grounds. I think that would be helpful because there are a number of frivolous requests—if I put it like that rather than vexatious—that I am not sure any of us would think was best use of public money to spend time; counting DfES windows may be one of them in my view. They are not all vexatious. The question really becomes "If you have an inordinate amount of time being spent in order to obtain information before the clock starts ticking, is it relevant to include that or not?" Not in order to put people off making requests, though it might help people, for example, by being able to say, "Look, this is going to take too long, can you be a bit clearer about what it is you are after?", which is no bad thing. Also where you have got requests that do require huge amounts of time, it is reasonable for us to say, "If you do want all of that information, there will come a cost with it. We can help you refine it so that we do not have that cost, but if you do want it in that way there is a point at which we have to charge for it". It is a big question. It is not that I am trying to tackle an issue of frivolity or vexatiousness that way, rather there is a genuine question about the use of public money in the broader sense, to do what could be quite big and open-ended requests and whether we can help refine them more effectively. Equally, whether people really do want that information, they need to be prepared to contribute towards the cost of it.

  Q218  Chairman: On records management, the Lord Chancellor has indicated that some public authorities are taking too long just to get hold of information out of their systems, hours or even days for information which ought to be readily available. Is there a real weakness there in data management in public bodies?

  Baroness Ashton of Upholland: It is patchy. We have got examples, I think, the DTI and the Department of Health are very good in terms of electronic records management. We have got other areas which are less good. I know that you have had a contribution from Natalie from the National Archives. She and I, in fact, met this morning to talk about records management because I think there is a bigger issue about making sure that we have got records management fit for purpose for the next few years and the role that the National Archives could play in supporting, particularly across central government, ways in which we can make that more effective.

  Q219  Chairman: The Information Commissioner told us of cases where it was not clear what information was or was not held by the authority, so is the code of practice on records management a means by which you are seeking to raise standards?

  Baroness Ashton of Upholland: It can be. I think as well we should get the National Archives in a more proactive way to be able to support people and to understand how best to contain the information they have got. You will know that about 5% of records are kept, so it can be the case of people asking for information which we do not know what we have got at this particular point. When electronic records management works well, it is very easy to find out, but sometimes requests come in in a way that is not so straightforward, it is not "Can you find this particular file?", not very often at all. It is somebody asking something which requires a piece of work to be undertaken to establish whether or not we have the information at all, particularly if it is historic and you have got people who do not know who worked there at the time and so on and need to check back. There is certainly more we can do to make records management more effective.

2   Note by witness: Time taken to locate and retrieve information is already included in the "appropriate limit." The Government is looking at whether other aspects of handling FOI requests should be included in the "appropriate limit" eg reading time Back

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