House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Eighth Report

2 Relations with Parliament

10. In our Report on the 2004-05 Departmental Report, we referred to "evidence of a disturbing aversion on the part of FCO management to proper scrutiny of its activities."[11] We reached this conclusion on the basis of a series of failures by the FCO to inform Parliament, through this Committee, of information which would facilitate effective scrutiny of its expenditure and administration. We also noted, however, that Sir Michael Jay had written to us in November 2005, informing us that in future there would be a presumption in favour of "proactive disclosure of decisions or activity" of the Board, subject to the need to "take into account personal and commercial confidences, and any impact on the conduct of international relations."[12] In our Report, we undertook to evaluate this new policy in the light of experience.

11. Among the relevant documents (other than regular or routine publications) that we have received without having to put in a request are:

Review of FCO's discretionary programme budgets
Freedom of Information after 12 months
FCO staff survey and Board Assessment

12. Documents we have requested and been supplied with are:

Top Risks Register
The Hogarth Report on Ministerial private offices

The FCO has not refused to supply any FCO Board papers that we have requested, although we continue to experience problems gaining access to other classes of FCO documents. For example, we requested a copy of the valedictory e-gram sent by the outgoing Ambassador to Baghdad, William Patey, extracts from which appeared in the press in August 2006. That request was turned down, and three days later the press reported that the practice of allowing outgoing Heads of Mission to send valedictory dispatches has been discontinued.[13]

13. When he appeared before us for the final time in June 2006, Sir Michael Jay agreed that this aspect of the relationship between the Committee and the FCO was not satisfactory. He developed his previous policy of a presumption in favour of proactive disclosure of information, and offered to send the Committee a quarterly report on "the main management issues that have been at the top of our agenda in the previous three months."[14] He told us that these reports should give the Committee "a fair and up to date view of the range of challenges we face."[15] In addition, Sir Michael offered informal briefings on FCO management or policy issues.

14. It is disappointing to have to inform the House that, more than three months later, we have yet to receive one of these quarterly reports. We are not in a position, therefore, to judge whether they represent the increase in accountability which is their purpose. We expect to have seen several of these reports by the time we make our Report on the FCO for 2006-07.

THE HOGARTH REPORT: AN EXAMPLE OF OVER-PROTECTIVE MARKING

15. An example of where the new policy of proactive disclosure has failed to operate in practice is the Hogarth Review of ministerial private offices, which was completed in October 2004. The report arising from the review was alluded to in a parliamentary question tabled by Andrew Mackinlay MP in January 2006. We asked for and received a copy in March. The report is classified 'Confidential'. This means that someone in the FCO has judged that to release the report would have important consequences, such as impeding seriously the development or operation of major government policies, or shutting down or otherwise substantially disrupting significant national operations.[16] When we saw the report, there appeared to us to be no good reason why it should have been classified 'Confidential', and absolutely no reason why it should remain classified. We therefore asked the FCO to publish the report.

16. The Foreign Secretary, Margaret Beckett, replied that "Protective marking criteria govern handling arrangements for the transmission and storage of classified documents."[17] Thus it was not the classification of the report—the reason for which remains unexplained—that prevented its disclosure. Instead, the FCO used the criteria that apply under the Freedom of Information Act. The Foreign Secretary continued,

In our view, the Foreign Office is being too cautious in this, as in so many instances where it refuses to release information. We regard the Hogarth report as an interesting and worthwhile study of part of the machinery of government but we cannot agree that publication of it would constrain the candour with which officials offer advice, or would undermine the effectiveness of the FCO.

17. We conclude that the FCO's over-cautious attitude towards publication or disclosure of documents or information about its management practices is a relic of a bygone age, when secrecy was endemic in public life. There is now a culture of freedom of information, and a presumption that information will be disclosed unless there are very strong, valid reasons not to disclose it, such as security or personal confidentiality. We recommend that the FCO reappraise its policy on disclosure, to bring it more into line with modern attitudes. We further recommend that the FCO take a critical look at the way it applies the Whitehall-wide protective marking criteria to information about its internal management or administration, and that it ask itself whether in some cases these are being used over-protectively.

FREEDOM OF INFORMATION

18. In its response to our Report on the FCO Departmental Report for 2004-05, the FCO undertook to provide the Committee with a copy of its Board information paper on "FOI after 12 months".[19] We received the paper in June 2006 and have reproduced it with this Report.[20] The following table is taken from the paper:

The table shows a marked increase in FoI applications and internal reviews in the first quarter of 2006.

19. Statistics and information on the performance of all Whitehall departments under the Freedom of Information (FoI) Act were published by the Department for Constitutional Affairs (DCA) in May 2006.[21] This publication shows that the FCO received 1,315 requests under the Act in 2005. Of these requests, 61 percent were dealt with inside the statutory 20-day period and a further 25 percent were dealt with under the provisions allowing for an extension of that period, giving the FCO an 86 percent 'success' rate overall. We note from the DCA report that the number of permitted extensions for the FCO was the highest of any Whitehall department.

20. The FCO told us that in the last quarter of 2005 its performance in dealing with FOI requests within the statutory period had improved to 93 percent, although it did not mention the high proportion of extensions.[22] The FCO also pointed out that its refusal rate in 2005 was only slightly above the average for Whitehall. However, the FCO's figure for this rate of 22 per cent differs from that given by the DCA, which is 28 per cent. The difference can be attributed to the FCO including in its calculation all requests received, whereas the DCA discounts requests that cannot be resolved, such as those for information which is not actually held by the FCO. In our view, the basis of the DCA's calculation is more legitimate than that used by the FCO, although we accept that for the purposes of making comparisons between departments either figure is valid and that the evidence shows that the FCO responded more positively to FoI requests throughout 2005 as a whole than it did in the early stages of implementation of the Act.

21. We recommend that the FCO adopt the methodology used by the Department for Constitutional Affairs when reporting on its handling of freedom of information requests.

Data protection

22. Data protection can be seen as part of the freedom of information regime, in that it gives individuals access to information held about them by corporate bodies. However, as the phrase suggests, it is also about protecting information from unwarranted disclosure. The Foreign and Commonwealth Office, as a public body holding a large amount of personal data, is obliged under the Data Protection Act to disclose those data only to persons entitled to see them.[23] We were therefore dismayed to discover an incident of unauthorised and unredacted disclosure to a third party of 'personal data' within the meaning of the Data Protection Act. Our dismay was compounded by the fact that the data were wholly untrue and entirely irrelevant to the context in which they had been recorded.

23. We found the FCO response to this error, which we drew to its attention, to be wholly unsatisfactory. Our specific concerns are these:

The information was based on hearsay and was not attributed; it should not, therefore, have been recorded at all.
The information was irrelevant to the context in which it was included in a FCO file.
The language in which the information was recorded was very poorly drafted, allowing for more than one interpretation but tending to suggest something extremely defamatory.
The information was not excised when the file was quite properly provided to a third party under the Data Protection Act; this failure was a breach of the terms of the Act.
When the unauthorised disclosure was drawn to the attention of the FCO, they failed to appreciate the severity of the case and they at first failed to apologise adequately to the person concerned.

24. This incident damaged our confidence in the FCO's senior management of the time, which showed failures of judgment, drafting, compliance with legal requirements and simple courtesy.

25. We recommend that FCO managers review the practice of recording personal information in FCO files, in order to ensure that in future it is well-founded, relevant to the context in which it is recorded, and properly expressed, and that in its response to this Report the FCO set out the steps it has taken towards this end. We further recommend that serious breaches of good practice be treated as a disciplinary offence.

11 Foreign Affairs Committee, Second Report of Session 2005-06, HC 522, para 23 Back

12 Ibid; Ev 51 Back

13 "Rebel ambassador takes parting potshot at Blair", Sunday Times, 24 September 2006 Back

14 Q 2 Back

15 Ev 38 Back

16 A full description of the Government's protective marking system is available at www.cabinetoffice.gov.uk Back

17 Ev 17 Back

18 Ev 17 Back

19 Cm 6791, p 5 Back

20 Ev 95-98 Back

21 Freedom of Information Annual Report 2005, Operation of the FOI Act in Central Government, available at www.dca.gov.uk Back

22 Cm 6791, p 5 Back