Examination of Witnesses (Questions 40
- 50)
TUESDAY 20 MARCH 2007
RICHARD THOMAS,
GRAHAM SMITH
AND JANE
DURKIN
Q40 David Howarth: Do you envisage
the use of such sanctions rising given the proposed regulations?
Richard Thomas: I think where
the volume would rise would be on the number of decisions—first
of all the number of cases. I estimated somewhere between 600
and 2,000. I cannot yet give a more precise figure. None of us
know, but we are currently working on those outside parameters,
but somewhere between 600 and 2,000, at least in the first year,
possibly the second year as well. The majority of those we would
be under a duty to make a formal ruling on. In fact we are under
a duty in every single case unless we can achieve a satisfactory
agreed solution, and that would be demanding upon my office.
Q41 David Howarth: Going back to
the point about reasonable consultation, what kind of evidence
would you expect the public authority to be able to give to show
to you that their decisions on consultation were reasonable?
Richard Thomas: I think it is
difficult to generalise, because one of the features of freedom
of information is the enormous variety of subject matter. Inevitably
in this Committee we are looking mainly at government departments,
but please remember, all the other local authorities, police bodies,
education bodies, health bodies and so on, there are so many different
sorts of public bodies under the umbrella of FOI, and so many
different sorts of requests. If it was a request about the actual
operation of the public authority, I would be a bit sceptical
about the need to consult anybody, but if it is a request about
that public authority's involvement with a range of outside organisations,
then it would not be unreasonable to have some sort of engagement
with those outside bodies. I am sorry to be uncertain in my answer,
but there are so many different situations.
Q42 David Howarth: I do not know
whether Mr Smith can give any examples?
Graham Smith: I can give a couple
of examples. We see quite a lot of appropriate consultation with
third parties where there is a request for information about a
contract, a local authority waste disposal contract, for example,
and there will be consultation by the local authority with the
contractor with regard to how they regard the confidentiality
and the consequences that might flow from the release of certain
information with regard to contractual clauses. Another one might
be in a social care context where a local authority has contact
with a family or a group of people and the health authority might
have contact with them, and so there will be appropriate consultation
there as well. Where I think we see consultation which should
not be taken into account in these circumstances is where, for
instance, a number of local authorities in one area all get the
same request from the same requester. They like to consult, and
one can understand from their point of view why they like to consult,
so they are not embarrassed by all giving differential answers
to the same questions—the same happens with government departments—but
it is not strictly necessary that that consultation takes place
in order for the public authority to comply with the request which
has been made.
Q43 Chairman: In general do you think
it is difficult to establish objective criteria in some of the
areas on which you will be expected to rule?
Richard Thomas: I think, as we
discovered with the initial introduction of the Act, there is
going to be a huge learning curve. This will be a specialist learning
curve. We, I am sure, will be putting out guidance on the regulations,
if they go ahead. We will do our best to take, as always, a responsible
and robust approach to our responsibilities. I think that the
criteria will depend upon hard evidence. I indicated in one of
my previous answers, there is going to be a mix in the majority
of cases looking at actual time spent and prospective time spent.
The actual time ought to be tolerably easy. There is no culture
of time sheets inside public authorities except in legal departments,
but I think there will have to be some sort of documentary evidence,
but far more difficult will be estimates of prospective time.
Having said that, as cases come forward on a repeat basis, if
a second, third and fourth similar case came forward, I expect
there would be some learning from the early cases. The one thing,
Chairman, which really does concern me—I think we can cope
pretty well with reading (and Mr Howarth's questions was about
consultation time)—is consideration time, and it is considering
whether or not particular exemptions apply and it is often considering
where the public interest considerations fall. Remember that time
is charged per person hour, so it is £25 per person. There
will be occasions sometimes in my office when I look around and
see six people discussing things for an hour, and we do not always
reach a conclusion inside the hour. There may be a temptation,
as it were, to pile on the people who need to consider whether
a particular exemption or a particular public interest issue is
to be answered one way or the other and time will clock up quite
quickly; but for us to say whether it was reasonable to do that
will call for some demanding judgements.
Q44 Chairman: Another issue on which
you would have to rule, which is quite new, is whether different
persons appear to be acting in consort or in pursuance of a campaign.
You have got to judge whether there is a conspiracy.
Graham Smith: That is an existing
provision at the moment, and it is not one that has been brought
to our door very often, that is not something that has been alleged,
but I think that is partly because, remember, before us the public
authority had to garner evidence to reach such a conclusion in
order to justify it to us, but it is not something that has been
brought to us. What is new about the proposed aggregation rules
is the subject that was being talked about with the previous witnesses
where the same people or people acting together are bringing similar[3]
kinds of requests, and I think it has been demonstrated, indeed,
with some articles in The Guardian newspaper as to how
easily those might be circumvented.
Q45 Dr Whitehead: Can I ask about
the relationship between the backlog of cases which you have previously
had with some of the new anticipated numbers of cases that may
come in. You told us last year about the backlog of cases that
you noted in your office, and in your progress report you indicated
that about 450 cases were outstanding. Have you made further progress
in removing the backlog and meeting your target since then, or
does the backlog remain?
Richard Thomas: I will ask Jane
Durkin to give you a fully up-to-date figure. I am glad, Dr Whitehead,
you mentioned the progress report, because that was a very important
record of where we got to in the autumn. We promised that to the
Committee in the spring of last year and we made a lot of changes
inside the organisation—structural changes, procedural changes,
quality changes and so on—and we have completely reorganised
the way we do things, and this sets out the record as it was in
the autumn, and we shared with the Committee the figures as they
were when we put our written evidence in. I think it is fair to
say that in the first two months of this year we have done better
still, and, whilst we have not eliminated our backlog, cases taking
longer than we would want, we are not getting anything like the
public concern, we are now prioritising cases and the vast majority,
I think, are being handled in a far more acceptable time span.
Perhaps Jane can say a bit more about the latest figures.
Jane Durkin: There are two key
factors around this. The first is that when we were projecting
forward we were estimating an intake of about 190 new cases a
month, and actually that has averaged out at about 215. As far
as getting to the 450, we have not at the moment, but at the end
of February we had 559 cases waiting to have investigations started
on them, and that has been our assessment of what constitutes
the backlog of cases that have not yet started investigations.
We are certainly on track and in the last two months, as Richard
has said, we have been clearing a lot more cases than we receive,
so that figure is reducing on a month-by-month basis.
Q46 Dr Whitehead: But, as you have
mentioned, in terms of the new cases that might come your way
in general projection terms that would presumably stop your progress
on sorting out your backlog.
Ms Durkin: Absolutely.
Q47 Dr Whitehead: And possibly reverse
it to some considerable degree.
Ms Durkin: Working through our
estimates of costs and intake it became clear that we simply could
not absorb this, given the current workload we have and the staffing
and funding that we have. In fact, the practicalities of taking
this work on would mean that we would need separate teams so that
this work would not be sitting in queues. There would be specialist
skills required and we have learned from the first year of the
Act being in force that we cannot sit and work through these initial
cases. We would have to develop expertise in concentrated teams
so that we did not repeat any mistakes of the past.
Mr Thomas: At the lower end of
the estimated flow it would be 600 cases, so we estimate that
we would need another £300,000 for the first year. At the
higher end, which would be about 2,000 cases in the first year,
we estimate we would need another £1 million[4].
I have to say that there are no indications from the DCA at the
moment that such money will be forthcoming, but we have to say
very bluntly that if there is to be this additional caseload it
has to be resourced from somewhere.
Q48 Dr Whitehead: But you have on
the other hand stated that you are adopting a more robust approach
to enforcement and that the suggestion perhaps from that more
robust approach is that public authorities' FOI compliance might
be speedier and that the time it would take you to deal with cases
might therefore be reduced. Has that turned out to be the case?
Mr Thomas: We use the word "enforcement"
to refer to our longstop enforcement powers. Where there are systemic
problems on the part of the public authority that is when we can
use our enforcement notice or our practice recommendation powers
as opposed to the routine decision notice power when we are adjudicating
on individual cases. We told the Committee last year that we were
strengthening our approach. As our progress report documented,
we introduced a new enforcement strategy in the autumn and we
now have a fairly active sort of programme to watch particular
authorities. I am bound to say that the majority are at local
rather than national level but we have a watch list of bodies
where there have been problems, where they have revealed in their
handling of individual requests that they need a close watch.
We have issued one practice recommendation, with another one coming
to maturity quite soon. That is generally working. We are still
adopting a co-operative, constructive approach with public authorities.
As I said earlier, the Act is settling down now. There are not
the alarms and the uncertainties and the anxieties which there
were 12 or 18 months ago now, so the majority of public authorities
are now far less alarmed and concerned about the impact of the
legislation as a whole.
Ms Durkin: I think it is also
fair to say that even our being more robust and public authorities
becoming more expert in handling requests and subsequent appeals
to us still does not give us the capacity to absorb the level
of additional work that these proposals would create.
Q49 Dr Whitehead: I am trying to
put a number of those different stresses and strains together,
and in your progress report you suggested that you could clear
the backlog of cases, which were at that time 450, for a one-off
payment of £750,000. I know it sounds a little like used
car sales negotiations but that is what was suggested. You have
said in your subsequent written submission that you have to accept
that you are going to receive only baseline funding, therefore
no money to clear a backlog of cases, and you have also said that
you have various estimates of what the cost of changes in the
regulations would be. First, in terms of the background to your
statement and that you say that you have to accept the baseline
funding, what is the overall picture that that would create as
far as future performance is concerned and will there be a situation,
say, next year where you would say, "Things are now falling
so far behind that we will need roughly the same amount of money
that the Government is suggesting it will save on the new regulations
to get our performance back in line"?
Mr Thomas: I think we are now
talking about our funding for the next financial year starting
in April. The DCA have confirmed to us that our grant is going
to be £4.7 million, which is substantially less than we are
getting in the current year, the year about to end, because the
current year included temporary funding to help us with the backlog,
so it is going to be quite a shock to come down to £4.7 million.
We only settled our budget yesterday. We have transferred £475,000
from other activities into FOI case work, but that does, of course,
mean that we can spend less on public education and less on supporting
public authorities. Other activities are going to have to be put
on hold for the forthcoming year. As Jane said, our performance
has improved quite dramatically and we are producing the sorts
of results that we can feel a great deal more comfortable about.
In the first two months of this year well over 60 formal decision
notices were issued quite apart from all the cases closed informally.
Taking the two years as a whole, we have received something like
5,000 cases and closed 4,000, and just last week we passed the
500 mark in terms of formal decision notices. We will not eliminate
the backlog altogether next year but we will make significant
inroads into it. However, of course, all I have said in answer
to your question has been predicated on the arrangements staying
as they are. If the regulations over fees are going to be changed
that would have the sort of negative impact we were discussing
earlier.
Q50 Dr Whitehead: You mentioned a
number of scenario costs. Have you looked in terms of your future
at what your future budget might need to look like should some
of the anticipated changes that you have been looking at come
to pass?
Mr Thomas: What we have said is
that, as Jane said, we would want to set up a discrete unit to
deal with these sorts of cases because if they simply went to
the back of the queue I think that would be highly undesirable.
We have to make sure that they are progressed as quickly as possible.
We would be talking to the DCA about whether we would be funded
for that or not. If not then it would have the adverse impact
upon the existing caseload that I have already mentioned. It depends
on the timing, it depends on the exact detail of the regulations.
Looking further ahead, there might be some reduction in the overall
number of what I might call ordinary cases we deal with and I
think some of those cases would be blocked by the changes brought
about by the regulations, so in the longer term there might be
some reduction and there might be some balancing out, if you like,
between the new cost-limit cases and the cases about whether the
exemptions apply or not but that would not have any effect, I
think, for the first couple of years.
Chairman: Mr Thomas, Mr Smith, Ms Durkin,
thank you very much. You have been very frank with us and we appreciate
it greatly.
3 Note by witness: should be "non-similar". Back
4
Note by witness: These figures exclude the costs of the
additional office accommodation that would be required. Back
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