Examination of Witnesses (Questions 31
- 39)
TUESDAY 20 MARCH 2007
RICHARD THOMAS,
GRAHAM SMITH
AND JANE
DURKIN
Chairman: Mr Thomas, Mr Smith, Ms Durkin,
welcome back. It is good to see you again. I am going to ask Mr
Khabra to start.
Q31 Mr Khabra: Last year you told
the Committee, Mr Thomas, that you believed that the existing
fees regime was working well and that it had "all the advantages
of being simple, clear and straightforward and not being a deterrent."
You say that much of the "mischief", as you called it,
which the draft regulations are apparently designed to address
can be addressed using the existing provisions of the Act. What
then do you believe will be the actual impact of the proposed
regulations?
Richard Thomas: Thank you very
much. That is a very large question. I will do my best to address
it. You are quite right, I did say last year (and I stand-by the
words) that I believe the existing fees regime is simple, clear
and straightforward and does not appear to act as a deterrent
to requesters. In overall terms, I do not consider freedom of
information is proving to be burdensome for public authorities,
and I think the benefits, especially in terms of improved transparency,
accountability and democracy are clear. I am mainly concerned
about the practicalities of the proposals which are now under
consideration. I recognise that the amount of what I call genuinely
public interest information that would be released into the public
domain will be significantly reduced, but I am concerned about
the practicalities for myself, for my office and for public authorities
generally. You refer to the existing provisions of the Freedom
of Information Act. A very important provision is section 14 of
the Act, which sets out an exclusion for a request which is vexatious
or for a repeated request. I have to say very frankly to this
Committee that I am surprised that government departments and
other public authorities are not using these provisions' exclusion
for vexatious requests to any great extent. If there is a problem
with this sort of request, then why is it that we are not being
presented time after time with refused requests on the ground
that they are vexatious? If there is a real problem in this area,
then I make no secret, it is my view that a more robust use of
the existing exclusion would to a very significant extent address
the mischief at which the new cost proposals are directed. It
is nearly two years now since my office published detailed guidance
on section 14, which took a liberal interpretation, if you like,
of section 14 and made it clear that we will be as supportive
as possible of responsible public authorities dealing with genuinely
vexatious requests. We have also since that time issued quite
a number of decision notices upholding the conclusion of a public
authority in a particular case that a particular request was vexatious.
I think we have shared some details of these with the Committee
for the purposes of today's inquiry. Looking at the new proposals,
I fear that they will introduce new layers of procedural and,
indeed, bureaucratic complexity. I think it would be very difficult
for public authorities themselves, and certainly for my office,
to start to measure and assess the reading and especially the
consideration time of civil servants and other public officials.
Civil servants do not keep time sheets, there is no regular record
of exactly how much time is spent on which activity, but these
draft regulations seem to indicate that that sort of substantiation
of how much time was spent in reading, consulting, considering
a particular request will be needed. I have to say, I am anxious
(and I wish to share the anxiety with the Committee) about the
volume of complaints which we are going to receive under the new
regulations, because there will be the scope for an appeal to
come to my office. If somebody believes that the new regulations
have been improperly or incorrectly used to exclude their request,
then they will come to my office and we will have to investigate,
and, unless we are properly funded for this, there is a real prospect
that our existing scarce resources will have to be spent with
resolving these difficult, complex disputes about the new regulations,
about the time being taken to deal with cases rather than resolving
the substantive issues about what information should be disclosed
under the terms of the Act. So, a long answer, I am afraid, to
your question, which was a very wide-ranging question, and I make
no secret that we do have anxieties about the practical implications
of these proposals.
Q32 Mr Khabra: I am sure you are
aware of the concerns of many organisations and individuals about
the impact of the regulations which you have just recently mentioned.
Is there any merit in your concerns? Is there any possibility
that you are prepared to consider to address some of the issues
which have been raised?
Richard Thomas: As I read the
Independent Report, the Frontier Economics' Report and the Government's
own statements and consultation proposals, I think the mischief
can be summarised by saying that there is a small number of requests
which are taking a disproportionate amount of time and effort
and that this is proving particularly burdensome for public authorities.
I have to repeat I think, I recognise that there may be a small
number of such cases, and the Frontier Economics' report gave
some empirical evidence to back that up, but if I could just repeat
what I said about section 14 of the Act and if I may just read
to you an extract from our own guidance on section 14, I think
you will see how there is scope to address this problem by using
the existing arrangements. Our guidance refers to the exclusion
for a vexatious request and it says here, "The Commissioner's
general approach will be sympathetic towards authorities where
a request, which may be the latest in a series of requests, would
impose a significant burden and clearly does not have any serious
purpose or value, is designed to cause disruption or annoyance,
has the effect of harassing the public authority or can otherwise
fairly be characterised as obsessive or manifestly unreasonable."
We thought at the time that that wording, which was our interpretation
of that single word "vexatious" was really recognising
that there could be a problem out there, and we said we wish to
keep compliance costs to a minimum and we wish to avoid damage
to the credibility or reputation of the Freedom of Information
framework. We put that in our guidance right back at the beginning
of 2005, but I have to repeat my astonishment, given the proposals
coming forward, that so few cases have come our way where a government
department or other public authority have relied upon section
14 to exclude a case. There have been a handful of cases and we
have adjudicated on those, and I think in more cases than not
we have uphold the approach of the public authority.
Q33 Chairman: Your first answer to
Mr Khabra, the latter part of it, pointed out this interesting
point, that if the costs to you of adjudicating a larger number
of matters of dispute is very significant, then of course that
will take away a significant part of whatever savings is involved
and it evokes the principle, which the department, with our support,
has sought to establish, that if another department, let us say
the Home Office, generates a requirement for more judicial procedures
because of changes it makes in the law, then there should be a
transfer of funds from the Home Office to the DCA to cope with
the costs of whatever new requirement has been generated. The
application of the same principle would suggest there would need
to be a further allocation to your office from the DCA budget
if your costs increased.
Richard Thomas: We have started
discussion with the DCA. I think we all recognise it is very difficult
to estimate just how many cases we would receive. We have taken
some figures. We have suggested that if there were to be 10% of
the number of cases which in Frontier Economics' estimate would
be taken out of the system altogether that is 20,000. If 10% of
those came to us, that would be something like 2,000 cases.
Q34 Chairman: It is quite a low estimate,
only10%, at least initially.
Richard Thomas: I think we all
have great difficulty estimating. I think the department think
that is on the high side. The figure they suggested last would
be closer to 600, but even 600 cases on top of our existing case
load of about 2,000 a year would be a substantial burden. In the
longer run some of those cases may substitute for existing cases,
but in the short-run, certainly in the first couple of years,
they would almost certainly all be additional cases on top of
our existing case load. So, I have to be plain to the Committee,
there would be some very undesirable implications in practical
terms for my office in terms of the resolution of cases.
Q35 Bob Neill: I am interested in
that because you may have picked up the evidence of Mr Jones.
He was saying he thought the system was fair enough, he did not
really have a complaint with the substance, but it was length
of time that was his issue. Do you have any idea of the extra
resource that might be required to keep on top of this in a timely
fashion?
Richard Thomas: I think it is
fair to say, Mr Neill, that the first year, 2005, my office and
many public authorities were struggling a bit with freedom of
information. This Committee expressed some reservations in its
report last year, but overall the verdict of the Committee was
that FOI was working well. What I think I can now say is that
it is working dramatically better since that time. We have improved
our performance to a very significant extent. I think that FOI
has settled down far more inside public authorities. I think that
requesters are behaving, for the most part, in a very responsible
way. We often read about the headlines in the national press,
but so often you also see the real benefits being delivered to
ordinary people up and down the country in terms of freedom of
information. We are not entirely happy with our own performance
now, but this is not a journalistic exercise; we have to adopt
a quasi-legal approach to adjudicate properly on complaints. It
does take time, but we are now closing over 50% of cases within
30 days. Our target is to close 80% within the first year. We
are now achieving 84%. Jane Durkin here is my Assistant Commissioner
who leads on the operational side of our FOI complaints handling
and she and her team have done a fantastic job in pushing through
the cases, but I think it is fair to say that we are all anxious
about the new skills which will be required, the new approaches
which will be required and the time that might be taken in having
to examine quite closely the issues around the time taken to deal
with these cases. We are not just looking at how much time has
so far been actually taken in reading, in consulting, in considering,
but also an estimate of how much time would be taken in reading,
considering and consulting, and then we get into questions like:
is it reasonable? Is it reasonable for this official to be involved?
Is it reasonable for that minister to be involved? There are going
to be some quite challenging issues to address if these proposals
go ahead.
Q36 Bob Neill: I see that, and I
think you have made the point that there is a concern that there
might be "an exaggeration", I think was the phrase that
was used, of the time taken. You have given us an outline, but
can you give us any sense as to what changes you might have to
make to those procedures? Does this require, for example, a much
more inquisitorial sort of approach to almost cross-examining
people at times? I do not know, we are all fishing around a bit
here, are we not? You say there are likely to be some quite significant
changes. Can you give us some sense as to what you are going to
have to do differently to find out whether there is exaggeration
or not or whether it is justified?
Graham Smith: If I could answer
that, Chairman. One of the issues here is that we do have some
experience of investigating cost limit cases under the current
regulations where the issue is in the time taken for the location
and retrieval of the information; and it does get to be quite
a complex business and public authorities are not in the habit
of recording the time taken. They do not have a time-recording
culture on the whole. I think what we would have to do is to spell
out very early on, through guidance, what our expectations would
be of public authorities, if they wished to take advantage of
these new regulations, to try to persuade us that they had fairly
estimated that they would have to undertake all these various
activities and, therefore, the appropriate limit would be reached
and they were, therefore, discharged from the obligation to comply
with the request, but it is a very complicated matter. We also
have some experience of appeals to the Information Tribunal, and
it is clear that when they are looking at a single individual
case their expectations of the nature and the extent of an investigation
which we have undertaken are actually quite high. So we think
that we would have to set out in advance, as best we could, the
expectations that we would place on public authorities and, in
turn, that would have to take account of the expectations we expect
to be placed on us by the Information Tribunal; but, as with this
process of FOI being very much one of learning from experience
as we have gone along, that is something that we would quickly
have to review in the light of experience. What we cannot anticipate
is what public authorities would actually do if they had these
regulations, because there are many choices that they have to
make and that, again, makes the exercise of predicting what is
going to happen, or what would happen if these regulations came
into force, very difficult.
Richard Thomas: What we said in
our response to the DCA is that the processes of estimating the
time which might be spent on the various activities, which can
be included when calculating whether the cost limit has been reached
is thus "uncertain, subjective and open to exaggeration,
if not to abuse". We did also feedback what the Frontier
Economics' themselves had concluded, because they actually said,
"If practitioners do not take a systematic approach, there
is likely to be a substantial increase in requests for internal
review"—that is inside the public authority—"and
appeals to the Information Commissioner's Office, with a substantial
increase in costs." We cannot be optimistic, frankly, that
there will be the systematic approach which Frontier suggested
would have to be brought into existence, because there are so
many complexities and uncertainties in the draft regulations.
Graham, my Deputy, and myself are both qualified lawyers, but
I have to say we struggled quite a lot with the wording of these
draft regulations. They are very complicated, very bureaucratic
and very demanding for public authorities and our own staff. We
think we know what they are trying to achieve, but it is worded,
inevitably, in very convoluted language.
Q37 Bob Neill: The sense of what
I get is, not only is there potentially an extra burden upon yourselves,
but, in fact, if they are successfully to maintain their refusal
to disclose, there may actually be a burden upon public authorities
in terms of the changes that they will have to make to their working
practices and their ability to produce an evidence base, if you
like, that they had complied with your expectations of them?
Richard Thomas: I do not think
we could do other than expect documented evidence as to the time
so far taken or a reasonable estimate of time to be taken in the
future.
Q38 Bob Neill: Again, that reasonable
estimate has to be based upon something?
Richard Thomas: Yes. In the legal
field, where there are disputes about the costs of litigation,
there is a whole industry of costs draftsmen and people like that
with a century or more of experience looking at these sorts of
issues. We will be doing that from scratch.
Q39 David Howarth: You have mentioned
one possible area of manipulation, which is on time estimates.
Could you comment on the other one that has been put to us by
the Campaign for Freedom of Information, which I think you briefly
alluded to, which is the question of consultation, on which other
public authorities, or lawyers, or ministers could be consulted
on the basis that they might potentially be affected, and that
appears to be another possible area of dispute and manipulation.
I appreciate it is difficult to estimate the likelihood that this
might happen, but there are obvious benefits for local authorities
of doing that. Could you just outline what powers you have to
deal with that sort of manipulation, what penalties you could
impose and what other powers you might think would become necessary
if your present powers were insufficient?
Richard Thomas: I think we would
all recognise that, in appropriate cases, consultation is a good
thing. The so-called section 45 Code of Practice, which we have
a duty to promote adherence to, says that public authorities should
consult with outside parties in appropriate cases, and we encourage
that. I think it is working reasonably well. If a public authority
holds information relating to a private company, there will often
be a process of consultation in that situation. We have not seen
the evidence to suggest that is proving a major problem. I am
sure there will be isolated examples, but as a general proposition
I would say that the existing arrangements for consultation are
working well. What we do not know is that, perhaps with the incentive
of these new regulations, there may be more consultation than
is strictly necessary. There may be consultation with other public
authorities, there may be consultation with outside legal experts,
there may be consultation with other forms of experts, and we
will be then called upon. If you like, if time was clocked up
in that process and that took it beyond the cost limit, then the
requester would come to us in due course and appeal and we would
have to make a judgement, and, in your particular example, we
would have to say: what time so far has been spent on consultation?
Do we agree or disagree with the estimate about what would be
spent in the future? Is that reasonable? So, all those questions
have to be unpacked from inside those regulations. We have no
real sanctions at the end of the day, all we can do is uphold
or reject a complaint, and, as I say, it is difficult, but we
would do our job; we would get on and we would do it. In principle,
I suppose, if we came across a public authority which was persistently
getting it wrong, then I think we could probably issue a practice
recommendation or even an enforcement notice under the Act, but
those are fairly exceptional sanctions.
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