Examination of Witnesses (Questions 200-219)
BARONESS ASHTON
OF UPHOLLAND
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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